“Work for Hire” - Music Industry

Have you heard about “Work for Hire”? This term usually uses related to the copyrights. The creator is either a person or a group who creates songs or computer programs. That creator has rights on copyrights of his work. Moreover, that creator can conduct exploitation on its work and of course he can get money from that.

 

Well. the “Work for Hire” is happened when the creator produce a work however his work does not have copyrights. How can this happen? It’s legal based on laws and regulations,  the respective copyrights will not fall into the creator BUT on the person who employs the creator. Laws treats the creator as if the creator did not involve in any process of the works. The employer has the respective rights.

 

For example is in MUSIC INDUSTRY. The musicians shall be very careful when sign the contract with the label “Work for Hire”. Because they do not have any rights on their works. The musician signs the contract with a company to create a jingle song for its commercial product advertisement. Usually on this kinda contract, the company wants to have the full rights of that song because of the commercial reason. Further, that contract will be stated “Work for Hire”. So, the company will have the full rights on that jingle. On the other hands, the respective musician will not receive any royalties from his work.

 

Please note that the “Work for Hire” is different to the transfer of ownership of works. For example the musician produces a song then sells it to the recording company or other musicians. In this case, the musician still have rights on its song. This is called LICENSING. The user shall pay the royalty to the respective musician.

 

The difference of Work for Hire and Transfer of Ownership. By transferring ownership to anyone or any companies, the creator may prepare a written agreement with anyone or any companies regarding the time period of the rights of ownership of that song can be used. After the  time period is  finished,  the creator can get back the copyrights of his works. While the Work for Hire, the creator can not have any rights at all on his work. The contract with label of work for hire shall be avoided.

 

The requirement of work for hire as follows e.g. the copyrightable work shall be considered as work for hire if the creator is one of the employees and create that works pursuant to his working relationship. For example: The fashion magazine employs a photograher. The respective  photographer creates pictures for the fashion pages . That fashion magazine will have copyrights on his work. If he is not the employee of that company,  then there shall be a written contract which explicitly stipulates that the work will be conducted for the Work for Hire. If the status of employee is not permanent, thus it shall be a written contract to describe that the work shall be conducted under “Work for Hire”. Usually the musicians under this circumtance. When the musicians receive contracts with title “Work for Hire”, they shall be carefull because they will not have the copyrights of their works.

 

 

Can Foreigners Own Apartment in Indonesia?

In late 90s, Indonesia Laws regarding land has been amended. New laws are now permitted the foreigners to purchase apartments in Indonesia if the building has a strata title status.

Moreover, the foreigners can not hold the strata title of ownership of the apartment. The foreigners only can hold the right of use of the apartment.

Government Regulation 41 of 1996 regarding Ownership of Residences by Foreign Persons Domiciled in Indonesia (“Law 41/96”) clearly stipulate that the foreigner can hold the right of use of apartment with certain conditions e.g. the said foreigner is given benefit to Indonesia. Moreover, the right of use is only given for 25 years and can be extended for other 25 years.

There are two (2) ways for foreigners to have property in Indonesia. The following scenarios are e.g.:

1. CONVERTIBLE LEASE AGREEEMENT: There is a way for foreigners to purchase property in Indonesia by signing the convertible lease agreement with the developer company. This agreement entails that the foreigner may purchase apartment, but the title is still held in the name of the developer. This lease agreement is for a definite period.

The transfer provision: This Convertible Lease Agreement states that the Lessee will obtain the right of ownership of the apartment automatically when the law and regulations regarding the land and apartment change. Then both lessee and lessor will enter into Sale and Purchase agreement. And the title of ownership shall be transferred to the lessee.

The current practice in Indonesia that the developer company usually uses the standard contract in selling strata title to the customers. The standard contract is one sided contract. The content of the contract are made by the developer not the by both parties. It is can be called ‘take it or leave it contract’. There is no freedom of contract.

Promissory Note: Besides, the convertible lease agreement, the lessee shall enter separate agreement with developer (“Promissory Note”). The said Promissory Note states that the lessee may re-sell the apartment to other parties chosen by him/her. Moreover, it shall be stated also that if the developer transfer its rights and obligation to third party under the lease agreement, the said promissory note shall be valid and forced to the third party.

2. NOMINEE ARRANGEMENT: The foreigners may have an Indonesian person that they can trust so that the property under the Indonesian name.

Then, the foreigner and Indonesian person will enter into an agreement that this Indonesian person has debt to the foreigner and pledge the said apartment.

Coltraine & Hartman

Bali Fashion Week

Bali Fashion Week 2007 will be held November 22-25. The theme is Fashion Meets Art.

The following agendas are: Fashion Show of International Designers, Street Fashion, Seminar and Discussion regarding the fashion industries, Program called “One of Kind” (to protect Indonesia Textile), Student Fashion Competition, Expo Exhibition, Fashion Photo Competition, Model Award Competition and Fashion Art Installation and Performance.

Further information www.balifashionweek.com

MTA or Resignation Letter ? (Indonesia Labor Issue)

The company that wishes to terminate its employees in Indonesia shall follow procedures pertaining prevailing laws and regulations.

The company shall obtain the approval from Industrial Relation Court (“PHI”) unless there is Mutual Termination Agreement (“MTA”) between the Company and the respective employee.

Both parties first, shall conduct bipartite negotiation. If there is agreement between both parties, then MTA is signed by both parties. Furthermore, the said MTA shall be registered to PHI. In the event, there is dispute or there is no agreement between the Company and Employee, then it shall be settled either Mediation or Conciliation. If there is still no consensus between both parties, then the dispute goes to PHI.

Based on explanation above, we can conclude that the termination process is quite long from the negotiation up to MTA and the registration.

Resignation Letter: Moreover, the Company sometimes thought that it will be much easier for them to talk to the Employees and ask the Employee to sign the resignation letter. Then, the said letter will be delivered to the Company. In this case, the said letter is only signed by one party. Often, there are no witnesses to the signature if the employee just renders the said letter to the Company. This condition could be used by the employee that he/she was forced under duress to sign the said letter.

MTA: On the other hand, MTA in a standard form often enables the Company to obtain further releases and additional wording stating that the Employee has, for example, no further financial claims against the Company and has received all relevant severance or other monies. Once the mutual agreement is registered, which should be undertaken immediately after execution, it is then much more difficult for the employee to raise a subsequent claim at the Industrial Relations Court or contest the termination.

We may conclude that the MTA is favorable to be used for termination employment agreement purposes.

Gotan Project-Differente

Have you seen Shall We Dance? In one of the scenes, we can see Richard Gere and J-Lo are dancing with one of Gotan Project’s songs, “Santa Maria (del Buen Ayre). Moreover, this song also can be heard in Sex and the City and Take A Lead.

What is special from this band? They brought new sounds for tango music-with beats and breaks. Their music genre is nu-jazz, electronica. Gotan Project is founded in 1999 that consists of Phillippe Cohen Solal (French), Eduardo Makaroff (Argentine) and Christoph H.Muller (Swiss).

(Special Thanks for my crazy bestfriend who introduced me with this band.)

Termination of Employment Agreement in Indonesia

The unilaterally termination of employment agreement shall obtain an approval from the Industrial Relation Court unless the company and the respective employee enter into a Mutual Termination Agreement (MTA). It means that unilaterally termination of employment agreement is not recognized under Indonesia Labor Law. Moreover, in the event that there is MTA signed bythe company and the employee, then the said MTA shall be registered to the Industrial Relation Court.

SPORT & BROADCASTING RIGHTS IN INDONESIA

Exclusive Rights of Broadcasting Program included in Copyrights which is stipulated in neighboring rights on Article 42 Indonesia Copyrights Act 2002. A Broadcaster that holds Exclusive Rights shall have a privilege for a sport program.

There are two important issues pertaining to Exclusive Rights ; the ownership of Exclusive Rights and the Exclusive Agreement between league and channel television which excluded the other operators.

Sport Association prefer to sell the exclusive rights collectively, because can maximize the profit particularly the marketing of the game itself. Moreover the revenue of exclusive rights will be used for the activities of Association and also the grass root program in order to maintain the competition among the clubs.

Exclusive Rights Holders

According to Manual Liga Indonesia 2006 ( Indonesia League Manual 2006 ) subsection the Contribution of Badan Liga Indonesia ( Indonesia League Body ) – Participants of Competition Paragraph 4 states that Club has right according to local television broadcast, as long as there’s no national live broadcast. The conclusion, Badan Liga Indonesia (BLI) which part of Indonesia Football Association has an authority to organize the soccer games in Indonesia particularly the exclusive rights of sport program.

Moreover, BLI gives compensation Rp. 20.000.000, - to the Clubs which their game have been broadcasted nationally by broadcasters for each game. The question is whether the amount of compensation fair for the club as the organizer of the game.

Semarang Football Club a few months ago through its manager has protested with live broadcast because from 7 games that his club has participated, 6 games has broadcasted nationally, including home play games. The exclusive right of this competition has given to one of broadcasters in Indonesia. Moreover, PSIS had lost amount of money from tickets sale because of live on air. Semarang Football Club only got profit Rp 50.000.000,-. Meanwhile usually Semarang Footbal club can get Rp.200.000.000,- up to Rp 300.000.000,- each game. In Europe, the Association can lay down ‘the closed time’ in special circumstances which the game will be closed for media until the target of tickets has been sold. The juridical approach the Closed time pertinent to Article 46 EUFA Statute jo Article 71 FIFA Statute.

Article 46 EUFA Statute : “UEFA dan Member Assosiations shall the exclusive rights to authorize audiovisual and sound broadcasting transmission, as well as any other use and dissemination by picture and sound, either live or recorded, in whole or as excerpts of matches which come within their jurisdiction.”[1] The closed time can give protection to the event organizer pertaining to ticket sale.

Restriction of Exclusive Rights

Collective Marketing will lead to oligopoly agreement which can cause the monopoly practice. Collective marketing will restrict the competition particularly reduce the amount of suppliers in industry compare to the clubs itself do the marketing. In Indonesia oligopoly agreement is incompatible with Article 4 Competition Act 1999.

BLI usually invite the broadcasters to submit proposal pertaining to sport games. The question is whether transparency in the bidding process of sport programs by BLI. In fact, the exclusive holder is always the same broadcaster from time to time.

The exclusive rights should be restricted in order to give a chance to the other broadcasters pertinent to sport programs therefore there’s no monopoly of information.

For example in Europe, the Exclusive Rights not only comply with the internal soccer organization but also Television Without Frontiers Directive and the General Competition Law Framework.

Article 3 (a) TWF Directive regulates that each member of EU shall make the specific list including major sport events which can be viewed by public free television. The restriction is to maintain balance between the viewers and public interest to get information particularly the sport major events through free television. For example Italy, that stipulated sport major events as follow : Summer and Winter Olympic Games, the Football World Cup Final, the EUFA Championship final and the Giro d’Italia.

Moreover, the Exclusive Rights must comply the General Competition Law framework particularly Article 81 (1). The exemption of exclusive rights will be permitted as long as proportional and based on public interest.

The restriction of Exclusive Rights of EU based on the amount of games on one season, amount of the games or the geographic market. In France the exclusive rights agreement between France Football Association and the broadcaster can’t be exceed 5 years.

Therefore, the exclusive rights in Indonesia shall be regulated fairly in order maintain the competition on sport industry itself and also the broadcasting industry.

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[1] See http://www.uefa.com/UEFA/Regulations/Statues_Media_Article44html

RUSSIA: INVESTMENT IN INDONESIA (MOBILE OPERATORS)

Altimo, the telecommunication of Russia conglomerate Alfa Group is interested to invest in Indonesia particularly on mobile operators business. Pursuant to the newspaper, Vedomosti, Altimo will take part in a tender for the Excelcomindo stake in the coming weeks. Furthermore, Altimo also expressed its interest in Indosat, other Indonesia mobile operators.

SIUP MB (TRADING BUSINESS LICENSE FOR ALCOHOL BEVERAGE)

Do you want to open restaurant or bar in Indonesia? One of the requirement is obtaining SIUP Minuman Beralkohol (“Trading Business License fro Alcohol Beverage) from Departement Trade of Regional Office.

The required documents for application SIUP MB as follows:

(i)         Application Letter;

(ii)        Application Form;

(iii)      Copy of DoE and MoLHR;

(iv)       Copy of NPWP;

(v)        Copy of TDP;

(vi)       Copy of LoD;

(vii)     UUG Bar License;

(viii)    Bar License;

(ix)      SIUP MB of the Distributor/Sub Distributor Company;

(x)        Appointment Letter from the Distributor/Sub Distributor Company;

(xi)      List of Alcohol Beverages from the Distributor/Sub Distributor Company;

(xii)     Recommendation Letter issued by the Trade Service Office of Central Jakarta;

(xiii)   Recommendation Letter of Keramaian issued by the Police Office;

(xiv)    License for trading the alcohol beverages issued by the Police Department;

(xv)     Minutes of Site Visit issued by Trade Regional Office of DKI Jakarta;

(xvi)    Photograph of Director (3X4, 4 pieces);

(xvii)  Copy of identity card of Directors and Commissioners;

(xviii) Appointment Letter from Director; and

(xix)   PoA (for handling the processes).

 

The said license will be issued approximately 2 (two) months after submission of the application.

 

Abbreviation: LoD  = Letter of Domicile

PoA  = Power of Attorney

DoE  = Deed of Establishment

MoLHR= Minister of Law and Human Right

TDP= Company Registration Certificate

NPWP= Taxpayer Registration Number