Fine Art and Other Copyrighted Works and the Articles 1318 and 1383 of the Indonesian Civil Code
What does that mean??????
The definition, description and history of fine art.
Fine art describes an art form developed primarily for aesthetics and/or concept rather than utility. Today, the fine arts commonly include visual and performing art forms, such as painting, sculpture, music, dance, theatre, architecture, photography and printmaking. However, in some institutes of learning or in museums fine art, and frequently the term fine arts (pl.) as well, are associated exclusively with the visual art forms. Art is often a synonym for fine art in this sense, as employed in the term “art gallery”. Historically, the fine arts were limited to painting, sculpture, architecture and engraving. (The whole paragraph is quoted and borrowed from Wikipedia)
Because fine art is an art form developed primarily for aesthetics and/or concept rather then utility, it is closely associated with the intellectuality and the personality of the artist. Because the intellectuality and personality of every human being is unique, they can be neither loaned to nor transferred to others.
Therefore, fine art is protected as copyright, the original, actual and authentic intellectual property rights, which are different from industrial property rights. Together with works in scientific and literary domain, works in artistic domain are covered by the Berne Convention 1886 protecting intellectual property, and not by the Paris Convention 1883 on the Protection of Industrial Property.
Now, what is the relevance between Fine Art (and other copyrighted works) and Articles 1318 and 1383 of the Indonesian Civil Code?
Article 1318 of the Indonesian Civil Code reads:
Men wordt voorondersteld bedongen te hebben voor zich zelven, en voor zijne erfgenamen en regtverkrijgenden, ten ware het tegendeel uitdrukkelijk bepaald zij, of uit den aard der overeenkomst mogt voortvloeien.
It translates into English as follows:
One is presumed to have promised for himself and for his heirs and successors-in-title, unless otherwise expressly provided, or it flows forth from the nature of the agreement.
Thus, are 2 (two) passages to follow in understanding Article 1318 of the Indonesian Civil Code, namely:
- to understand what has been expressly agreed by the parties to the agreement; and
- to understand what flows forth from the nature of the agreement
It is easy to understand something that has been expressly agreed by the parties to the agreement, but it is not easy to understand what flows forth the nature of the agreement.
In the context of understanding the nature of the agreement, we have to take Article 1318 of the Indonesian Civil Code in the narrow sense of what flows forth from the nature of the agreement. Legally speaking, what flows forth from the nature of the agreement is the obligation (verbindtenis or perikatan) itself. Article 1233 of the Indonesian Civil Code stipulates that obligations flow forth from either an agreement or the law. Article 1234 of the Indonesian Civil Code stipulates that obligations are:
- for giving something;
- for doing something; or
- for refraining from doing something.
Obligations to give something or to do something in an agreement can be defined as affirmative or positive covenants, whereas obligations to refrain from doing something in an agreement can be defined as negative covenants.
An act of giving something can be done by the person, who is under the obligation to do so (the debtor) or by his/her heirs, assignees, successors-in-title etcetera provided that what is indebted by the debtor to the creditor is alienable or transferable or assignable to those third parties.
An act to do something can be done by the debtor or by others in his/her name. But in some occasions there are obligations to do something that cannot be done by others who do not have the capacity to do so, let alone in the name of the original debtor. Fine art and other copyrighted works are the production of the soul (voortbrengselen van de geest) which is inalienably associated with the person who has the capacity to produce the fine art and/or other copyrighted works. Copyright always protects the way in which an idea is expressed, and no one in this world can imitate or copy the way in which others express their ideas.
Therefore, in the context of an obligation to do something, if one has ordered a painter to make a painting of the client, a fashion designer to design an haute-couture dress for the client, a singer to sing or a musician to play musical instruments, by its very nature those works cannot be handled or taken care of by others because of the inalienable way to express the idea in the copyrighted works (including fine art) which can only be done by the person who is under the obligation to do so.
The way in which a real painter paints is different from other painters, let alone his/her offspring. The way in which a fashion designer creates his/her designs is different from others. That is why many big names in European fashion design industry are established independently from the fashion houses they used to belong to as employees. Their works, their copyrighted works which are for aesthetic and/or conceptual purposes are associated with their respective name, intellectuality and personality. So are singers and/or musicians who have their authentic performing styles which are different from other singers and/or musicians. Thanks to the concept of intellectual property law who introduced the concept of performing rights protection.
Article 1383 of the Indonesian Civil Code makes clear the first passage to understand the meaning of Article 1318 of the Indonesian Civil Code with respect to the inalienable duties of those who work in the literary, artistic and scientific domain. A combination of the two passages, namely:
- the understanding of what has been expressly agreed by the parties to the agreement; and
- the understanding of what flows forth from the nature of the agreement
enhance the quality of the works.
This Article reads:
Eene verbindtenis om iets te doen kan door eene derde niet gekweten worden in weerwil van den schuldeischer, indien deze belang heeft dat de daad door den schuldenaar zelven verrigt worde.
It translates into English:
An obligation to do something cannot be discharged by a third party to the contrary of what is wanted by the creditor, if this creditor has interest that the deed must be performed by the debtor himself.
If this rule is applied to the works of professionals, one must understand that legally speaking the obligations related to works of arbitrators, mediators, translators, lecturers are inalienable.
Hope this small post is of interest to you.
Now playing: Johann Sebastian Bach – Brandenburg Concerto no. 6 Allegro