LEGALIZATION OF ARTISTS’ RESALE RIGHT (DROIT DE SUITE) AS THE PROTECTION SYSTEM AND INCENTIVE INDONESIA PAINTING

Abstract

INTRODUCTION:A painting is a collectible object, and therefore, it is unique not only artistically but also economically. Generally, when an artist sells a painting to a collector at a high price, this does not directly result in any economic value to the artist. In fact, when a painting is sold in a gallery, the artist gives a royalty to the owner of the gallery. This royalty is between 50:50 and 40:60 of the price of the painting. With that percentage, the artist cannot profit highly from the sale of the painting. As time as goes by, the painting's value slowly increases, and it is even possible for a painting to sell for IDR. 100 billion. Sidoesoedarsono Sudjojono's Pangeran Diponegoro was sold in Sotheby's Hongkong auction hall in April 2014 for approximately IDR 100 billion, including a premium fee (Agresifitas Kolektor Mengejar Karya Seni, 2014). Retrieved from http://lifestyle.bisnis.com/read/20140615/230/236215/agresivitas -kolektor-mengej ar-karya-seni/).Looking into this reality, it is clear that the painting as an expression of the idea of the artist in this context apparently is not economically capable of contributing to the welfare of the painters' origin or their heirs. In some countries, this problem has been been solved through the establishment of legislation that allows the painters' origin or their heirs to benefit economically from the high prices of paintings by dividing the percentage of its value to the painters' origin or their heirs. This legislation effort is made in order to govern the concept artists' resale right to the provision of positive law.Meanwhile, in Indonesia, when reviewing the provisions of the applicable legislation, which one of that is the Act No. 28 of 2014 on Copyright in Indonesia (hereinafter referred to as the Act No. 28 of 2014), it can be seen that the arrangement of the artists' resale right seems not been regulated yet. With the absence of this provision, accordingly it has become a challenge for Indonesian painters and the government to take steps in legalization of artists' resale right into Indonesian positive law. This effort is intended to build a system of protection and incentives for Indonesian painting.LITERATUR REVIEW:Indonesian Copyright as a Protection System for Painters:In Indonesian Copyright Act, copyright according to Article 1 Number 1 Law Number 28 Year 2014, can be defined as the exclusive right of the creator that arises automatically, based on declarative principle, after the work is embodied in a tangible form and without decreasing the limitations according to the provisions.From the definition above, we understand that copyright is an exclusive right, and it does not lend itself to the nature of monopoly. The nature of monopoly gives authority to the right holder to utilize a copyright, to permit other parties to use the right, and even to prohibit other parties from using the right.Copyright as an exclusive right is divided into two parts, moral rights and economic rights. A moral right is a right that stays with the creator. According to Stewart, who is cited by Otto Hasibuan, there are three fundamental aspects of a moral right:a. Droit de divulgation (the right of publication), which is the right to decide whether the work is to be made public.b. Droit de paternite (the right of paternity), which is the right to claim authorship of published works.c. Droit de respect de J'oeuvre (the right of integrity), which is the right of an author to safeguard his reputation by preserving the integrity of the work (Hasibuan, 2008), (Utomo, 2010).Moral rights cannot be transferred to other parties. They are regulated in Articles 5, 6, and 7 Law Number 28 Year 2014. These regulations of moral rights allow the creator to do the following:a. cite or not cite their name in the copy of work utilized in the public;b. use a fictitious name or disguised name;c. …