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Etika Profesi Final Project 2016

Kelas F/ Kelompok 2

Comparison Study of Intellectual Property Regulation in Indonesian


Online Marketplace (case study: Elevenia, Tokopedia, Bukalapak,
olx.co.id)
Nikolaus Herjuno 1, Marina Safitri2 dan Ikhwan Aziz3

Abstract
Nowadays, In online commerce world, was stated that it is very important for E-commerce to protect
and safeguard their Intellectual Property, or ensuring if the assets are not in contact with the Intellectual
Property Competitor or even content that is used does not intersect with the law. Everything contained in
it must have the properties: fully owned companies, have permission to use it, there is in the public
domain, that should be enwrapped in use. People should be aware of making transaction in online
marketplace and be wise while make some transaction in online commerce. We research some regulation
that managed by 4 different e-commerce. Define the challenge and advantage in each marketplace related
to the law of their Intellectual Property. This research ease you to clearly know how to behave ethically in
some Indonesian Marketplace in order to obey the Intellectual property Law in Indonesia.
Keyword: E-commerce, Intellectual property, Law

1. PENDAHULUAN
1.1. Background
Nowadays, precisely in Indonesia the word of e-commerce has become an integral part
of everyday life. Its not become the privilege of people to access the e-commerce, yet
become neccesity of people to do so, particularly in the urban areas. There are
alternative e-commerce platforms available (instead of the traditional physical
platforms) for almost every aspect of our lives, starting from purchasing of everyday
household items to online brokage. Based on a study by Google and Temasek, noted that
the pace of e-commerce in Indonesia reached 25% annually[6][7]. Strong growth will
provide high accessibility for people in choosing, as well as the risk or threat for the E1

5213100078, Institut Teknologi Sepuluh Nopember Surabaya, herjuno13@mhs.is.its.ac.id

5213100090, Institut Teknologi Sepuluh Nopember Surabaya, marina13@mhs.is.its.ac.id

5213100096, Institut Teknologi Sepuluh Nopember Surabaya, ikhwan13@mhs.is.its.ac.id

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commerce [6] [7]. Mentioned by the Word Intellectual Property Organization, it is very
important for E-commerce to protect and safeguard their Intellectual Property, or
ensuring if the assets are not in contact with the Intellectual Property Competitor or even
content that is used does not intersect with the law [9]. There are several reasons also
why Intellectual Property itself is an important asset, E-commerce is not just a business
system, but also involves a transaction products and services based on the license and its
IP, so IP is itself a component of the value of a transaction in E-commerce. IP is
important because of the value traded on the Internet must be protected, using
technological security systems and IP laws, or they can be stolen or hacked resulting in
the entire business can be destroyed [9] [10]. Business e-commerce and the Internet is a
business that is based on patents and licenses of the product, where that product
development also involves technology which sometimes implementing and make it use
of the existing services. This is because, it is not possible to make the technology
services that are all independent, so the E-commerce businesses themselves are
cooperating among companies to share through licensing. intellectual property of the
opportunities and risks in the business [10]. Everything contained in it must have the
properties: fully owned companies, have permission to use it, there is in the public
domain,
that
should
be
enwrapped
in
use
[9].
With that very important for E-commerce to understand the problems of Intellectual
Property, Intellectual Property assets that can make running a business and creating
value for the company, it is because each of the actors involved in e-commerce
transactions involving each component value. However, as revealed by WIPO that is not
common, if the businessman, violate the values of Intellectual Property, and therefore
need to realize that the very importance of Intellectual Property for the operation of the
business, especially e-commerce [10].
1.2. Problem Formulation
In the formulation of the problem, describing the comparison of intellectual property on
e-commerce:
1. How terms and conditions analysis related on Intellectual Property between the
Elevenia, Bukalapak, Tokopedia and OLX?
2. How legal analysis related to the case studies?

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1.3. Purpose
From the background and problem formulation has been described, then the purpose of
the making of this paper is to compare the problems of intellectual property of each ecommerce Elevenia, Bukalapak, Tokopedia, and OLX.co.id with the specific objective
of this papaer as follows:
1. Knowing how the rules and conditions of each marketplace related on
intellectual property issues.
2. Knowing the legal analysis on intellectual property related to the maketplaces.
1.4. Benefits
The benefits of writing this paper is considering of the two parties below:
1. For writer
Provide knowledge about the analysis of the differences & similarities of the
various companies in the marketplace or regulating the handling of intellectual
property issues in carry out its business.
2. For reader
Gives an overview of the differences and similarities of the various companies
in the marketplace or intellectual property issues management while running
the business.

2. RELATED RESEARCH AND LITERATURE REVIEWS


In this section contains a description that indicates the theoretical basis and concepts that
are relevant to the issues being studied include:
2.1. Intellectual Property
Intellectual Property referred to HKI, is the rights arising as the result of a thought that
produces a product or process that is useful to humans. In essence IPR is the right to
enjoy the economical benefits from an intellectual creativity. Object set in IPR is the
works that exist because of human intellectual abilities.
In Indonesia, there exist some rules that manage on intellectual property, as:
1. UU No.12, 1997 about UU Changes No. 6,1982 about copyright as replaced
with UU No.7 1987 (UU Copyright); in a short term, this UU would be revised
to accommodate recent developments of copyright;
2. UU No. 29, 2000 about Plant Variety Protection;
3. UU No. 30, 2000 about Trade Secret;
4. UU No. 31, 2000 about Industrial Design;
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5. UU No. 32, 2000 about Integrated Circuit Layout Design


6. UU No. 14, 2001 about Patent, and
7. UU No. 15, 2001 about Trademark;
2.2. Penelitian terkait
No

Issue

Metodhology

Preserving

intellectual

Result

conducted in-depth

Indication that corporate managers

property rights: Managerial

interviews with United States

have to find the practice of

insight into the escalating

managers to gauge the

encouraging distributors to notify

counterfeit

efficacy of various anti-

the manufacturer about

counterfeiting tactics to

counterfeits, as well as educating

preserve intellectual property

both employees and channel

rights[11].

members about the counterfeit

market

quandary[11]

problem, to be some of the most


effective ways to fight pirates[11].
-

Recomendation for managing the


registration of all trademark and
patents in key market[11]

The

importance

Intellectual

of

Conduct magazine and paper

The necessity for strengthening the

Property,

review of WIPO magazine

interaction between IP offices,

Challenges for SMEs and

2005, Issue Observation on

SME support institutions, business

product

development

Enforcement Division under

associations, national, regional and

specifically on agro-based

the Trade Description Act

local

products[12].

1972,

Perbadanan

governments

and

other

Harta

relevant institutions with a view to

Intelek Malaysia, Trademark

better identifying the IP needs of

Act

Trademark

entrepreneurs and SMEs and the

Regulations Act 1997 and

barriers to a more effective use of

Trademark

the IP system by entrepreneurs and

1976,

(Amendment)

Act 2011[12].

SMEs[12].
-

Facilitate the application process


and reduce transaction costs for
entrepreneurs and SMEs for using
the IP system and study the impact
of the introduction of procedures

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for accelerated grant of IP rights
and

of

lower

or

discounted

application fees entrepreneurs or


SMEs in general[12]

Analysis

of

Intellectual

Article review, paper review


and

of

intellectual property rights can play

economic

perspective,

Intellectual Property Rights

a role either positive or negative on

discussing the points of view

and Economic Development,

economic growth and

of well known economists in

Revised Draft, Case Western

development. The relationship is

relation to the positive and

Reserve University[13].

basically positive, but dependent

impacts

intellectual

of

analysis

the

on other factors that promote the

property

benefits of intellectual property

systems[13]

Economic theory demonstrates that

Property Rights based on

negative

Issue

protection[13]

Business ethics and

Article

intellectual property in the

observation

global marketplace,

Horizon Issue) that has benn

activity, as well as the related

organization awareness to

produced in cooperation with

opportunities for business firms to

pay heed to ethical

the Kelley

benefit from socially responsible

considerations associated

Schools

with their decisions[14]

International Business (IIB)


and

review,

Issue

(Business

Institute

Indiana

address the ethical dimensions of


different aspects of business

for

actions[14].

Universitys

Center for International


Business Education Research
(CIBER) [14].

Analysis
Property
knowledge
among
Enterprise

of

Intellectual

Conflicts

in

transfering
E-commerce
enterprise

Analysis
Property

Intellectual
Conflicts

knowledge

by

Enterprise
individual

in knowledge transferring among

E-commerce
by

quantifying
perception,

The paper only identifies


intellectual property conflicts types

transferring

among

intellectual property types,

in

EC enterprises,
-

Second, the paper identifies


intellectual property conflicts in

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then, makes research on

knowledge and experience,

knowledge transferring among EC

intellectual property conflicts

the theory of Eevidential,

enterprises in theory, not to

identification in knowledge

notation

and

magnify intellectual property

transferring

modeling hypothesis.

The

conflict identification in

among

EC

enterprises[15].

hypothesis

last is making decision by the

knowledge transferring among

judgment

different EC enterprises is also

employees

of
of

relative
knowledge

needed to be solved[15].

senders that are involved in


knowledge transferring[15].

3. DISCUSSION & COMPARISON BETWEEN INTELLECTUAL PROPERTY IN


ELEVENIA, TOKOPEDIA, BUKALAPAK AND OLX
3.1. Comparison matrix Between the study case
Elevenia
Builder
Company

XL Axiata,
Planet

Business Model

Bukalapak
SK

Tokopedia

OLX.co.id

Suitmedia

Tokopedia,
Softbank Internet
and Media Inc.
dan
Sequoia
Capital.

OLX.co.id

C2C

C2C, B2B2C

C2C, B2B2C

C2C

E-Commerce
Model

Marketplace,
Escrow

Marketplace,
Escrow

Marketplace,
Escrow

Listing Ads

Achievement

2 million active
products,
8,000
orders every day

150.000 seller and


1,5 million active
product

Increasing
the
seller 30% / month
and 3.3 million
active products

3,4 million active


user

Features related
to
Intellectual
property

Report on product.
but there is no
specific instance

Call Bukalapak

Contact
Tokopedia

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of IP category

3.2. Short Description of the study case


In this section will be explained about a brief description and content / features
contained on each maketplaces
a. Elevenia
Elevenia is an online service operated by Elevenia, which provides users with
access to discover and purchase various items from registered sellers through
multiple electronic interfaces including Elevenias website, mobile applications,
web applications or "widgets", and other applications (the "Service"). This Web
Site available to you subject to the following Service Usage Agreement, which
are effective unless and until terminated by PT. XL Planet ("Elevenia" and/or
"we" and/or "us")[16].
There is some advantage and disadvantage from the services of Elevenia, the
advantage of using elevenia related to intellectual property is Elevenia
specifically explain the rules related to intellectual property such as the use of
content or products featured on the website by limiting the use of the information
contained on the website and explained that all the content contained on the
website are the property Elevenia overall.
But in other case In Elevenia not explained specifically how an act that can be
done or features that can be used if it turns out there are users find content that
infringes copyrights or intellectual property.
That things are explained by "terms and conditions" that protects and prioritizes
the copyright and intellectual property. some rules are made and supplied by
Elevenia that must be obeyed by the user, are:
1. at the third point on the use of the website explains that
Your use of the Web Site does not grant to you ownership of any Web
Site Content ....
Elevenia and its Content may not be distributed, published,
reproduced, duplicated, copied, transmitted, disassembled, sold, or
otherwise exploited for any commercial purpose unless expressly
permitted under this Service Usage Agreement or express prior written
permission is provided by Elevenia.
2. at the fifth point on Copyrights explains that
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All Web Site Content is owned by Elevenia, our licensors, or both.


Access to our Web Site does not authorize anyone to use any name, logo,
slogan or mark in any manner. All software used on our Web Site is the
property of Elevenia
3. at the sixth point on Member explains that
Seller shall not infringe any Trademark Right, Copyright, Namensrecht
(naming rights), and other various intellectual property rights ...
Should there be any claim of infringement of intellectual property rights
Elevenia may suspend the corresponding product's information and
its sales ...
b. Bukalapak
Bukalapak is one of the leading online marketplace in Indonesia. As well as
buying and selling service sites provide a means of buying and selling of
consumer to consumer. Anyone can open an online store on bukalapak and serve
buyers from all over Indonesia to the transaction unit as well as a lot.
[17]
There is an advantage in using Bukalapak on Intellectual Property is the feature
in complaint and issues handling related to the misuse of intellectual property on
the page of Contact Us[18]. But there is the sortage of the services because of
Bukalapak does not guarantee the and does not provide explanations and specific
attention on intellectual property and transferred all responsibility to the user
even though Bukalapak said they would protect or act decisively if it turns out
there are users who abuse and violate the copyrights and intellectual property.
It explained on the company terms and conditions wich are,
1. At the point of Users, explains:
Users are prohibited from making a copy, modification, or derivative or
publicly display such content distribution derived from bukalapak that
may violate Intellectual Property Rights of Bukalapak.
2. At the points of sale of goods explains that
Pelapak take full responsibility for all risks .. relating to copyright, on
a product under the applicable law in Indonesia.
3. And at the point of limitation of liability there is explained that
Bukalapak is not responsible for any infringement of copyright
regarding any information created by Pelapak.

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c. Tokopedia
PT. Tokopedia is a limited liability company that runs business activities
www.tokopedia.com web portal, a site search and store goods sold by the seller
is registered. Hereinafter referred Tokopedia[19].
There is some advantage in using the services of Tokopedia on Intellectual
property issues because Tokopedia has feature for complaints related to
intellectual property issues on page Contact Us[20]. But at the specific terms the
explained that Tokopedia is not responsible for the upload of user content that
may be offensive or subscribe intellectual property rights. It was explained on
these terms, :
1. At the point describing the trade mark, explained that
The other party is prohibited by law to use or in the name with the
name and / or logo "Tokopedia" for the benefit of certain individuals
and groups without special authorization granted to it, with or without
the knowledge Tokopedia. Violation of this article will be subject to
copyright infringement and intellectual property rights[19].
2. At the point of Hot List, is explained that
Hot list contains images and text that may be in it is tangent to the the
intellectual property rights of others if your party objected to the
image and / or text that is in the Hot list Tokopedia, then the party you
can contact us via Website Customer Center to takedown for the hot
list[20].
3. At the terms and conditions of Content, explained
When users uploading to the site Tokopedia with the content or posting
content, Users give Tokopedia non-exclusive, worldwide, continuously,
irrevocable, royalty-free, sublicensable (through multiple tiers) right
to exercise any and all rights reserved , publicity, trademark, database
rights and intellectual property rights that users have in the content, in
any media now known or in the future. Furthermore, to be fully
permitted by applicable law, you waive any moral rights and pledged
not to assert those rights against Tokopedia[19].
Users guarantee that does not infringe the intellectual property rights
in the User Content uploaded into the site Tokopedia. Each User is
personally responsible for violations of intellectual property rights in
uploading the content on the Site Tokopedia[19].
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User agrees that users will not ask Tokopedia responsible for any
inaccuracies in the catalog[19]. Catalog may include copyright,
trademark or other proprietary rights[19].
4. At the points of Limitation of liability explained
To the extent permitted by applicable law, Tokopedia (including the
Parent Company, directors, and employees) are not responsible for,
and you agree not to hold Tokopedia responsible for any damages or
losses (including, but not limited to loss of money, reputation, profit ,
or other intangible losses) resulting directly or indirectly from:
Violation of Intellectual Property Rights[19].
d. OLX.co.id
OLX is a company engaged in the field of services of online selling and buying
that provide a place for people who are selling items that are considered are not
used but still in good condition and want goods that are not used can make
money from that.
There is no advantages in using services of OLX.co.id related of intellectual
property issues because there is no special feature in intellectual property
protection explained by OLX.co.id. And in the other way compared with other
marketplace, OLX.co.id is a marketplace that does not include specific and only
notify OLX exemption for any claims relating to any content or activity that
arises when accessing applications on Intellectual Property.
In the OLX.co.id general policy explanation, companies break away from all
claims for compensation resulting from the company described in point
compensation, which reads as follows:
Users agrees to release, defend and hold harmless OLX Indonesia,
company affiliations and directors, trustees, officers, employees and
agents, from and against any and all claims, liabilities, damages and
expenses (including legal fees, damage awards, and settlement amounts
were reasonable) arising out and related to or which may arise from the
use and / or access to the Service; violation of a condition in these
General Terms and Conditions, Privacy Policy and Prohibition of
Advertisements by the user; breach of any rights of any third party,
including but not limited to intellectual property rights, assets either in
the form of movable property or immovable property, rights of privacy;
and / or claims with respect to the material that caused losses to a third
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party. In this case OLX Indonesia may also participate in a joint defense
with counsel of his choice.

4. LAW ANALYSIS RELATED TO CASE STUDY


There are several cases related to intellectual property in some marketplace above. One
of them occurred in bukalapak, where a user reports that other users in selling their
products using images or images that made.
In such cases, the early users can report the case by reference on Undang-Undang No.
15 Tahun 2001 BAB I Pasal about Mark. And need to be underlined, the brand used
or possessed by the early users are already registered in the Directorate of General. The
initial user can conduct against other users of the dispute according to the BAB XI about
Penyelesaian Sengketa on article 76 that Brand owners registered may file a lawsuit
against the other party unlawfully using brands that have a similarity in principle or in
its entirety for the goods or services similar form of (a) claim for compensation, and / or
(b) the cessation of all acts relating to the use of brands are aimed at the commercial
court.

5. CONCLUSIONS AND RECOMMENDATIONS


5.1. Conclusion
Based on case study above about Intellectual Property on some of E-commerce
Enterprise, we can conclude, that one of three E-commerce doesnt give a full concern
when come on Intellectual Property, except Tokopedia. Either, Elevania, Bukalapak, and
OLX, doesnt give specific act or they dont fully reponsible for violation on Intellectual
Property. So from the point of view, we can get the conclusion that, Tokopedia is having
more advantage when comes on Intellectual Property. Intellectual Property is important
asset of many industries, so basically it should be organized well, to make certain every
parties can be doing their matter right.
5.2. Recommendation
Indonesia offers attractive prospects for E-commerce growth seeking to expand their
businesses in South-East Asia. It accounts for one third of South-East Asias GDP. It
offers a growing consumer base. Taking time to understand the IP landscape in the
country that many enterprises intend to do business in can both save and make them
money, and can help them avoid the pitfalls associated with another competitors. IP is
key to the competitiveness of business in todays global economy.
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Thank-you note
We thank our lecturers, Mrs. Nur Aini Rakhmawati and the earlier researchers who
helped us researching this study.

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3.
4.
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6.
7.

8.
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Hubungi
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Team Contributions
Nikolaus Herjuno :
1. Collect & Analyze early research related to Intellectual Property in E-commerce
case (related study matrix)
2. Define problem definition, background definition
3. Define and Construct Matrix Comparison between E-commerce Enterprises
4. Doing paper review againts law and any other regulation based on International
Act of Intellectual Property Rights
Marina Safitri :
1. Collect & Analyze early research related to Intellectual Property in E-commerce
case (related study matrix)
2. Define the matrix about differences among some e-commerces in business and
law field, how to manage their IP and how they manage this business
3. Explanation in literature review and Act regulated Intellectual Property Issue
4. Explanation in each e-commerce (Bukalapak, Tokopedia, Elevenia, OLX) how
they regulate their Intellectual Property in certain transaction.
Ikhwan Aziz :
1. Collecting and analyze the difference of advantage and disadvantage between the
study cases
2. Collecting and analyze the difference of intellectual property terms and condition
on each study cases
3. Analyze the legal on intellectual property that associated with some real case of
the company
4. Collecting the literatur review related on intellectual property
5. State the goal and the relevance of the paper

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