Source: EURLEX
Language: en
Format: md

21. 5. 87 Official Journal of the European Communities No C 136/3

Notice of initiation of an 'illicit commercial practice' procedure concerning the unauthorized
reproduction of sound recordings in Indonesia

(87/C 136/03)

On 16 March 1987 a complaint was submitted to the
Commission alleging that by failing to provide the
Community industry with effective protection against
unauthorized reproduction of phonograms, thus
encouraging the production in Indonesia of 'pirate'
sound recordings on a massive scale for commercial
purposes, the Indonesian Government is (a) guilty of
illicit commercial practices and (b) causing injury to the
Community industry concerned.

Again, contrary to Article 10 bis, paragraph 1, and
Article 10 ter of the Convention, Indonesia is alleged not
to be providing other countries of the union with
'effective protection' or 'appropriate legal remedies' to
counter such unfair competition. In this connection, the
complainant alleges that no legal precedent exists in
Indonesian civil, commercial or criminal law for legal
action against unauthorized sound recording as an act of
unfair competition.

Complaint B. BREACH OF GENERALLY ACCEPTED RULES

The complaint was submitted by the association of
members of the International Federation of Phonogram
and Videogram Producers (IFPI) on behalf of European
producers said to represent virtually the whole
Community sound recording industry.

Product

The complaint concerns sound recordings falling within
Common Customs Tariff subheading 92.12.B.I,
corresponding to Nimexe code 92.12.39.

Allegation of illicit commercial practices

The complainant alleges that by failing to provide the
Community industry with effective protection against the
unauthorized reproduction of sound recordings,
Indonesia is in breach both of international law and of

generally accepted rules.

The complainant asserts in the first instance that the
rules of the Berne Convention for the Protection of

Literary and Artistic Works and the Paris text of the
Universal Copyright Convention, to neither of which is
Indonesia a party, must be regarded, in view of the large
number and importance of countries adhering to those
Conventions, as generally accepted rules.

Article 5 of the Berne Convention and Article III of the

Universal Copyright Convention, it is alleged, require
countries which are members to provide the same
protection for works by nationals of other members as
they do for works by their own nationals.

It is alleged that Indonesian copyright law, which treats
sound recordings as derivative works, fails to comply
with the national treatment rule because, while it
protects works by Indonesian nationals irrespective of
the place of first publication, Article 48 of the relevant
act restricts protection of works by foreign nationals to
those 'first published' in Indonesia.

Alleged injury
A. BREACH OF INTERNATIONAL LAW

The complainant relies essentially on Articles 10 bis and
10 ter of the Paris Convention for the Protection of

Intellectual Property, of which Indonesia is a member.

It is alleged that the unauthorized reproduction of
phonograms as carried out in Indonesia is an act of
'unfair competition' within the meaning of Article 10 bis,
paragraph 2, whether or not it is accompanied by the
specific practices referred to in points 1 and 3 of Article
10 bis, paragraph 3, since it enables competitors to profit
at no cost from major investments made by other firms,
which, it is alleged, is 'contrary to honest practices in
industrial or commercial matters'.

The complainant states that the lack of an effective
remedy against the unauthorized reproduction of
phonograms and the resultant large-scale distribution of
Indonesian 'pirated' copies is causing serious injury to
the Community industry, in that it deprives Community
producers of sales openings not only on the Indonesian
market but on the markets of various third countries,
notably in the Middle East.

The loss to Community producers of potential sales
expressed in terms of annual resale value is alleged to be
at least US $ 120 million for the Indonesian market and
US $ 30 million for Middle Eastern markets.

No C 136/4 Official Journal of the European Communities 21.5.87

Procedure

Having decided, after consultation of the Member
States, that there is sufficient evidence to justify initiating
an examination procedure to consider the legal and
factual issues involved, and that this is necessary in the
interests of the Community, the Commission has
initiated an examination in accordance with Article 6 of

Council Regulation (EEC) No 2641/84 of 17 September
1984 on the strengthening of the common commercial
policy with regard in particular to protection against
illicit commercial practices (').

Interested parties may make known their views in
writing, addressing the specific issues raised by the
complaint and providing supporting evidence.

(') OJ No L 252, 20. 9. 1984, p. 1.

The Commission will also hear parties who so request
when making their views known, provided they can
show that they have a direct interest in the outcome of
the procedure.

This notice is published in accordance with Article 6 (1)
(a) of the abovementioned Regulation.

Time limit

Any information relating to the matter and any requests
for hearings should be sent in writing to reach the
Commission of the European Communities, DirectorateGeneral for External Relations (Division I-C-l), rue de
la Loi 200, B-1049 Brussels (telex: COMEU B 21877)
not later than 30 days following the publication of this
notice, allowing a further seven days for delivery.

Conversion rate to be used for sales of alcohol by invitation to tender

_(87/C_ 136/04)

_(Article 15 of Regulation (EEC) No 1915/86)_

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