Quo Vadis Copyright as Fiduciary Guarantee in Indonesian Legal Arrangement

By Busro, Achmad; Sulistianingsih, Dewi et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

Quo Vadis Copyright as Fiduciary Guarantee in Indonesian Legal Arrangement


Busro, Achmad, Sulistianingsih, Dewi, Adhi, Yuli Prasetyo, Pujiono, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

Fiduciary is the transfer of ownership rights of an object on the basis of trust with the mechanism of transfer of property rights to the debtor's property to the creditor, while the possession is fixed to the debtor (Sfikas, 1997). Fiduciary guaranty is the right of security of tangible and intangible mobile objects, especially immobilized buildings which remain in the possession of the fiduciary giver, as collateral for the settlement of certain debts and which give the preferred position to the beneficiary fiduciary to other creditors. In Indonesia, the fiduciary guarantee object mentioned in Article 1 point 2 of the Fiduciary Guaranty Act is tangible and intangible moving object and immovable property, especially a building which cannot be burdened with mortgage. In Article 1 item 4, the thing is defined as everything that can be owned and transferred, whether tangible or intangible, registered or unregistered, moving or immovable that cannot be borne by mortgage or mortgage rights. Legally, the fiduciary guarantee object is set in Article 1 points 2 and 4, Article 2 and Article 3 of the Fiduciary Guaranty Act. Article 2 of the Act affirms that this Act applies to any agreement that aims to burden objects with fiduciary guarantees and is then affirmed by Article 3 which states the Act is not applicable to: 1) mortgage rights related to land and buildings, as long as the applicable laws and regulations determine such items shall be registered; 2) mortgages on registered vessels with gross content of 20 (twenty) metres square or more; 3) mortgage on airplanes and 4) pawn.

Based on the Decree of the Ministry of Law and Human Rights, the Directorate General of Legal Administration to the Regional Office of the Department of Law and Human Rights of Jakarta No C. HT. 06-10-01 dated February 24, 2010, it is stated that: (1) The object of fiduciary guarantee is a material right; (2) The project terms, leases, contracts or borrowings and other personal rights are not understood as objects of fiduciary security; (3) The insurance policy shall not be subject to fiduciary security because of the insurance/insurance policy that is the inherent right of the person who owns it but is not transferable. In essence, the fiduciary guarantee is an object which ownership rights may own and transfer, whether tangible or intangible, registered or unregistered, mobile or immovable, which cannot be borne by mortgages. On the other hand, the object of fiduciary assurance, especially on intangible objects, has a significant development. Law No. 28 of 2014 on Copyright has governed the development of intangible objects that can be guaranteed by fiduciary collateral. Copyright Law also regulates copyright as a fiduciary security object. This is stated in Article 16 paragraph (3) of the Copyright Act stating 'copyright can be used as an object of fiduciary guarantee.'

Copyright arguably has prospects to serve as credit collateral, because it has an economic value and can be transferred either entirely or partially. The presence of Article16 paragraph (3) of the Copyright Law does not necessarily make the bank easily give its loan. The bank cannot accept the copyright as the object of fiduciary guarantee because of the rules that support it. The arrangement in Article 16 paragraph (3) does require further elaboration. This is related to the guarantee for the bank itself to get the certainty of the refund that has been lent. The copyrighted work as the object of fiducially guarantee in Indonesia only exists after the enactment of Law No. 28 of 2014, so the arrangement order is incomplete. Banking parties in Indonesia have not practiced copyright as a credit guarantee because there are some obstacles in the implementation. These barriers relate to issues of value, market, ownership and authorization of copyright submission as the object of collateral. These barriers arise because there is no special regulation on copyright as an object of guarantee, including the unavailability of an appraisal agency that has the ability to provide an assessment of the economic value of a copyright. …

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