Role and Authority of Notaries as Officials in Making Authentic

Deeds for Transfer of Rights or Imposition of Guarantees on

Intellectual Property Rights in Indonesia

Jelly Leviza

, T. Keizerina Devi A.

and Puspa Melati

International Law Department, Faculty of Law, Universitas Sumatera Utara, Indonesia

Economic Law Department, Faculty of Law, Universitas Sumatera Utara, Indonesia

Keywords: Intellectual Property Rights.

Abstract: Notary is an official who has the authority to make an authentic deed as stipulated in Act Number 2 of 2014

concerning Amendment to Law Number 30 of 2004 concerning Notary Position.The authority of the Notary

in making the authentic deed also has relevance to the issue of intellectual property rights in the form of

making an authentic deed for the transfer of intellectual property rights. In addition, the notary also has the

authority to make authentic deeds in the imposition of collateral for intellectual property rights. Legal

arrangements for intellectual property rights in Indonesia are spread in various laws. Therefore, it is

necessary to conduct a normative study to identify how the regulations concerning the role and authority of

a notary public in transferring rights and imposing guarantees on intellectual property. The study is

important to know whether or not the problem has been accommodated properly in the legislation. Based on

the results of the discussion it appears that there is a need for regulations in the form of implementing

regulations for the imposition of fiduciary guarantees on intellectual property rights.

1 INTRODUCTION

Notary is an official who has the authority to make

an authentic deed as stipulated in Act Number 2 of

2014 concerning Amendment to Law Number 30 of

2004 concerning Notary Position. Authentic deeds

are needed as a basis for proof when disputes occur.

According to Sudikno Mertokusumo, the deed is a

letter that is given a signature, which contains events

that are the basis of a right or engagement, which

were made from the beginning intentionally for the

purpose of proof (Mertokusumo, 2010). With regard

to the authority to make authentic deeds, the Notary

must truly understand the provisions regulated by

law so that justice and legal certainty for the

community is maintained properly (Andasasmita,

1983).

In the context of intellectual property rights,

Notary has the authority to make authentic deeds

regarding the transfer of intellectual property rights

and the authority to make authentic deeds regarding

the imposition of guarantees in the form of

intellectual property.

The transfer of intellectual property rights can

occur due to inheritance, grants, wills, written

agreements or other reasons justified by legislation

(Sujatmiko, 2010). The transfer of intellectual

property rights is carried out by making a license

agreement. The license agreement is contained in the

form of a deed signed by the grantor and the

recipient of the license and is carried out before a

notary as an authorized official (Murniati, 2015). For

example, the transfer of rights to a trademark

requires the role of a notary for the making of the

transfer deed(Fatmawati, 2015).

According to its material status, intellectual

property rights include movable objects that are

intangible (Article 499 of the Civil Code).

Intellectual property rights can be used as collateral

for debt because they are material rights that have

economic value. Conceptually, intellectual property

rights contain two types of rights, namely moral

rights and economic rights. Moral rights are

fundamental and cannot be taken by others. Moral

rights are inherent in the creator(Schere, 2018).

According to Article 16 paragraph 2 of Law No. 28

of 2014 concerning Copyright that can be transferred

Leviza, J., A., T. and Melati, P.

Role and Authority of Notaries as Ofﬁcials in Making Authentic Deeds for Transfer of Rights or Imposition of Guarantees on Intellectual Property Rights in Indonesia.

DOI: 10.5220/0010097717411744

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1741-1744

ISBN: 978-989-758-449-7

1741

only in the form of economic rights, while moral

rights remain attached to the Creator. Copyright

Transition must be done clearly and in writing either

with or without a notarial deed.

Debt collateral in the form of intellectual

property rights can occur as a result of technological

progress and development. Intellectual property

rights can be in the form of scientific, literary and

technological works that are born from human

creativity so as to make the work have economic

value. The most appropriate form of guarantee in

this context is fiduciary guarantee. The fiduciary

guarantee deed is made by a notary public to provide

legal certainty and legal protection for the parties

(Mulyani, 2012).

Regarding the issue of intellectual property

rights, it is important for Indonesia as a member of

the WTO. Indonesia has ratified the agreement on

establishing the WTO through Law No. 7 of 1994.

The legal consequence of ratification is that the

Government of Indonesia is bound to all WTO

agreements including the The Agreement on Trade-

Related Aspects of Intellectual Property Rights

(TRIPS). The WTO consensus on intellectual

property rights contained in TRIPs has become the

basis for the regulation of intellectual property rights

in the Indonesian national legal order up to now

(Sutiarnoto, 2014).

Based on the description above, it can be seen how

important the role and authority of the notary in the

field of intellectual property rights, especially

regarding the transfer of rights and the imposition of

collateral. This paper will conduct a normative

analysis of the role and authority of the Notary in

making authentic deeds related to intellectual

property rights in the legislation in force in

Indonesia.

2 METHODOLOGY

This paper uses the normative juridical method.

Normative legal research method or literature law

research method is a method used in legal research

conducted by examining the library materials in the

form of applicable legal norms contained in the

legislation or judgment decisions (Soekanto, 1986).

The normative juridical method is used in this paper

to analyze whether the legal instruments concerning

intellectual property rights have sufficiently

regulated the role and authority of the notary public

in the transfer of intellectual property rights and the

imposition of collateral in the form of intellectual

property.

3 RESULT AND DISCUSSION

In general, intellectual property rights can be

classified into two parts: copyright and industrial

property rights (Patents, Brands, Industrial Designs,

Integrated Circuits, Trade Secret, Geographical

Indication, and Plant Variety Protection) [10].

considering the wide variety of intellectual property

rights as mentioned above, the following discussion

is limited to copyright and patents.

3.1 Role and Authority of Notary in

Making Deed for Transfer of

Intellectual Property Rights

The Copyright can be transferred, either in whole or

in part because of inheritance, grants, endowments,

wills, written agreements or other justified reasons

in accordance with the provisions of the prevailing

laws and regulations.

The transfer of economic rights to copyright is

regulated in Article 16 of Law No. 28 of 2014

concerning Copyright.The explanation section of the

above provisions states that the transfer is only for

economic rights, while the moral right remains

attached to the Creator. The role and authority of a

notary can be found in this context where the

transfer of copyright must be carried out clearly and

written in a notarial deed. Unfortunately this article

still confirms the transfer of copyright without a

notarial deed. Actually the transfer of copyright with

a notary deed will provide more certainty and legal

protection for the parties.

The transfer of patent rights is regulated in

Article 74 of Law No. 13 of 2016 concerning

Patents. As with copyright, transfer of rights to

patents occurs because of inheritance, grants, wills,

endowments, written agreements or other justifiable

reasons based on the provisions of the

legislation.The transfer of the patent does not

remove the inventor's right to keep his name and

identity included in the patent, because the right is

an inherent moral right (Djumhana, 2014).

In addition, in fact according to the prevailing

legislation the Notary has the role and authority to

make authentic deeds regarding the transfer of

intellectual property rights not to register for

intellectual property rights, but in fact many parties

authorize the notary to register the right to property

intellectual. The institution that has the role and duty

to register intellectual property rights is the

Consultant Institute for Intellectual Property Rights.

ICOSTEERR 2018 - International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches

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3.2 Role and Authority of Notaries for

Debt Guarantees in the Form of

Intellectual Property Rights

Act No. 28 of 2014 concerning Copyright has

regulated that Copyright can be used as an object of

Fiduciary Guarantee. According to Sudjana, the

guarantee institution that is most likely to be charged

to Copyright as an object of collateral for debt is a

fiduciary guarantee institution (Sudjana, 2012).

The imposition of fiduciary guarantees is

regulated in Article 4 through Article 10 of Law

Number 42 of 1999 concerning Fiduciary

Guarantees. The nature of a fiduciary guarantee is a

follow-up agreement (accesoir) of a principal

agreement which creates an obligation for the parties

to fulfill an achievement. The imposition of a

fiduciary guarantee is carried out in the following

ways: (a) Made by notarial deed in Indonesian, (b)

Debt whose repayment is guaranteed by a fiduciary

guarantee (Salim, 2014).

With regard to copyright which is used as an

object of fiduciary guarantee, in this case the notary

has the authority to make his fiduciary collateral

deed. Because of 2 (two) rules, namely the Fiduciary

Guarantee Law and the Copyright Act, there is no

reason for the notary to refuse to make a fiduciary

deed on copyright.

Fiduciary guarantee is a special guarantee that

arises because of a special agreement between the

debtor and the creditor. Fiduciary guarantees can be

executed without going through a court decision

(execution parate) because the head of the Fiduciary

Guarantee Act has written the executorial title in the

form of the sentence "For Justice Based on the One

God Almighty".The regulation on fiduciary

guarantee in Indonesia is contained in Law Number

42 of 1999 concerning Fiduciary Guarantees.

secondly the related laws and regulations, normative

guarantee.

However, in practice, Article 6 of Law Number

42 of 1999 concerning Fiduciary Guarantees

stipulates that the Fiduciary Guarantee deed made by

a Notary must include the guarantee value and the

value of the object used as the object of fiduciary

guarantee, this makes a new question, where is the

value of the object obtained? (Setianingrum, 2016).

The challenge for notaries in the future when

faced with this problem is in the case of making a

fiduciary loading deed, it is necessary for the Notary

to explain in detail in the fiduciary guarantee deed

even more so in relation to the description of the

object that is the object of collateral, guarantee value

and the value of the object that becomes object of

fiduciary guarantee.

This is because the collateral for copyright is not

something that is tangible in nature but that is

submitted for collateral is a "right" which is

intangible. Regarding the description concerning the

object guaranteed in the deed, the notary can request

the Creator as the Fiduciary Giver to submit the

work that is owned along with documents that prove

ownership of the work (Sary, 2016).Although the

protection of Copyright adheres to the declarative

system (does not require registration), but in order to

protect the Economic Right of the creation, the

creators must register the Copyright to the

Directorate General of Intellectual Property Rights,

Ministry of Law and Human Rights, so that there is

one certainty the law of who is entitled to guarantee

a Copyright.

4 CONCLUSIONS

Based on the results of the above discussion, it can

be seen that the transfer of rights or the imposition

of collateral for intellectual property rights requires

the role and authority of the notary public. This is

based on the fact that an authentic deed made by a

notary will be a strong proof that can provide legal

certainty and protection for the parties.When

compared, the Copyright Act more explicitly

regulates the role and authority of the Notary rather

than the Patent Law because it mentions it explicitly.

But unfortunately the Copyright Act still justifies the

transfer of rights to the work without involving a

notary.Regarding the imposition of a debt guarantee

on intellectual property rights, there is a need for

implementing regulations considering that the

existing laws do not have detailed arrangements.

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