Investigation Mechanism of Intellectual Property Crimes by Civil Service Investigators under the Directorate General of Intellectual Property
By Ivor Ignasio Pasaribu & Yehezkiel Obey Yoneda / 16 June 2023
Key Points
- Complaints on criminal acts or violations of intellectual property can be reported to IP Civil Service Investigators.
- Complaints may not only be reported by registered intellectual property holders but can also be made by registered licensees or attorneys (legal advisers).
- The handling of intellectual property crimes is carried out based on the difficulty level of cases, starting from easy, medium, and difficult cases.
- Criminal acts related to copyrights, related rights, patents, or simple patents must be mediated first. Meanwhile, the other types of intellectual property are mediated upon request.
Background
It is important to note that this year, the Office of the United States Trade Representative has placed Indonesia on the priority watch list, partly due to inadequate law enforcement against counterfeit goods, lenient penalties for intellectual property violators, and ineffective border control measures. Consequently, these factors can lead to trade restrictions and undermine investor confidence in Indonesia.
It is anticipated that MoHLR Regulation No. 1/2023 will significantly contribute to law enforcement against criminal acts in the field of intellectual property. Thus, every intellectual property holder will receive sufficient protection, and ultimately leading to Indonesia’s removal from the priority watch list.
Intellectual Property Crime Complaint Report
Complaints on criminal acts or violations of intellectual property can be reported to Intellectual Property Civil Servant Investigators ("IP Civil Service Investigators"), who are under the guidance of the Directorate General of Intellectual Property.
Such complaints may not only be reported by registered intellectual property holders and other intellectual property owners but also by registered licensees and attorneys (legal counsel) of the intellectual property holders/owners and registered licensees.
However, it is essential for the complainant to note that the report must be accompanied by supporting evidence which includes at least:
- proof of intellectual property ownership;
- identity of complainant;
- identity of witness;
- goods suspected to have originated from, believed from, or are the result of criminal acts or violations of intellectual property.
Subsequent Actions on Complaint Reports of Intellectual Property Crime
Upon receiving the complaint reports, the IP Civil Service Investigators will initiate a series of activities, including (i) conducting observation of the related object or environment, (ii) conducting interviews with related parties, (iii) shadowing suspected criminal offenders, (iv) tracking the offenders, and (v) conducting research and analysis of documents ("Wasmalitrik"). The IP Civil Service Investigators can commence the Wasmatlitrik activities upon receiving an assignment letter from their superiors, and they may also request assistance from the Indonesian National Police in carrying out these activities.
After completing the Wasmatlitrik activities, the IP Civil Service Investigators will convene an initial case hearing to determine subsequent steps in handling the case. Additionally, they must provide a progress report on the result of Wasmatlitrik to the complainant no later than three working days after the initial case hearing. Suppose the case hearing concludes that there is no sufficient evidence, the reported case does not constitute a criminal act, and/or the complaint is terminated by law, the IP Civil Service Investigators will promptly issue a notification letter to the complainant, indicating the termination of the case based on the Wasmatlitrik results.
Intellectual Property Crime Investigation
Investigation of intellectual property crimes commences based on various documents, including (i) minutes of case hearing of the Wasmatlitrik, (ii) incident report, (iii) assignment letter, (iv) investigation order, and (v) notification letter on commencement of an investigation.
There are three levels of handling intellectual property crimes investigation based on the difficulty level: easy, moderate, and difficult. The handling of easy cases must be completed no later than six months after the issuance of the investigation order. The moderate cases must be completed no later than nine months after the issuance of investigation order. Meanwhile, for difficult cases, the cases must be completed no later than twelve months after the issuance of the investigation order.
The difficulty level is determined during the case hearing before escalating the case to the investigation stage. For instance, a case is considered difficult if:
- the witness lacks direct knowledge of the criminal act that is occurred;
- the identity of the suspect is unknown, or the suspect has health problems or holds a particular position;
- a certain group protects the suspect or is part of an organized crime group;
- acquiring evidence directly to the case is challenging;
- special equipment are needed to handle the case;
- criminal acts occurred in several places; and
- the investigation requires a significant amount of time.
The investigation phase involves several IP Civil Servant Investigators' activities, such as processing the crime scene and examining witnesses, experts, and/or suspects. A person may be designated as a suspect if there are at least two of evidence, which will be determined through the mechanism of a case hearing. The letter on a determination of suspect will be sent to the public prosecutor, reporter, and suspect.
The decision on whether a criminal case should be transferred to the public prosecutor is made in the final stage of the case hearing. During the case hearing, the team of IP Civil Servant Investigators will present the key aspects of the case, the implementation, and the result of the investigation that has been carried out to the participants of the case hearing in order to be discussed and concluded. Suppose the criminal case is transferred to the public prosecutor; the case files, suspects, and evidence will be submitted by the Korwas PPNS Investigator (coordinator and supervisor of civil servant investigators).
It is important to note that investigations of intellectual property crimes can also be terminated during the stage of investigation based on the following reasons:
- insufficient evidence;
- the incident being investigated does not qualify as a criminal act; and/or
- the investigation is terminated by law due to the death of the suspect, case expiration, withdrawal of the complaint, and the intellectual property crime has obtained a legally binding court decision.
Mediation in Intellectual Property Disputes
Criminal acts concerning copyrights, related rights, patents, or simple patents must first undergo mediation, even without any request from the involved parties to the MoLHR. On the other hand, for other types of intellectual property, mediation can only be carried out upon requests from the involved parties.
Mediation for dispute resolution is facilitated by intellectual property mediators, who will subsequently report the mediation outcomes to MoLHR. If a settlement is reached during the mediation, the parties must make a settlement agreement.
Key Contacts
