Prudential Terganjal Kasus Hak Cipta senilai US$ 1,19 Juta !!

JAKARTA. PT Prudential Life Assurance, Tbk (Prudential Indonesia) saat ini sedang terganjal kasus hukum. Perusahaan asuransi asal Inggris ini tengah digugat di Pengadilan Niaga Jakarta Pusat oleh perusahaan konsultan dari negeri Paman Sam, The Institute for Motivational Living Inc lantaran dituding telah melakukan pelanggaran hak cipta.

The Institiute for Motivational Living mempermasalahkan sebuah modul yang telah digunakan oleh Prudential yang berjudul "Mengenai Tipe & Karakter Manusia Melalui: DISC Profile (what, why, how). Modul tersebut dinilai secara subtansial dan khas sama dengan hasil ciptaanya yakni dengan judul Understanding Your Personality Style Power Point dan Person to Person.

"Meski bentuk dan isinya telah diubah sedemikian rupa namun secara subtansial dan khas merupakan ciptaan kami," kata Heru Muzaki, kuasa hukum The Institute for Motivational Living, Minggu (7/11).

Heru menjelaskan bahwa materi ciptaan sudah dibuat The Institute for Motivational Living sejak tahun 2000. Bahkan hak cipta atas materi ciptaan Understanding Your Personality Style Power Point dan Person to Person itu sudah terdaftar dan mendapatkan sertifikatnya di negeri Paman Sam. Materi ini sudah menyebar ke berbagai negara. Di Indonesia sendiri, materi ciptaan ini sudah diterjemahkan dalam bahasa Indonesia pada tahun 2003.

Tahun 2009, The Institute for Motivational Living mendengarkan kabar bahwa ada pelanggaran hak cipta atas materi ciptaanya. Prudential menggunakan modul Mengenai Tipe & Karakter Manusia Melalui: DISC Profile tersebut untuk pelatihan yang diadakan oleh PruSales Academy.

The Institute for Motivational Living menilai kegiatan pelatihan itu bersifat komersil lantaran untuk melatih agen-agen untuk dapat menjual produk asuransi secara maksimal. "Prudential memperbolehkan peserta pelatihan memperbanyak secara gratis dan dalam modul itu tidak dicantumkan nama kami selaku pemegang hak cipta," ujarnya.

Atas perihal ini, The Institute for Motivational Living sempat tiga kali mengirimkan somasi dalam rentan waktu bulan Juli sampai September 2010. Namun sampai gugatan ini dilayangkan pada 1 Oktober lalu ke Pengadilan belum mendapatkan hasil yang memuaskan. "Memang sudah ada pembicaraan tapi belum menemukan titik temu" jelasnya.

Dalam gugatannya, The Institute for Motivational Living mengklaim tidak mendapatkan manfaat yang sebenarnya dari hasil materi ciptaannya. Makanya, The Institute for Motivational Living menuntut ganti rugi baik materiil maupun materiil sebesar US$1,190 juta kepada Prudential.

Tidak hanya itu. The Institute for Motivational Living meminta Majelis Hakim untuk menghukum Prudential dengan membuat pengumuman di dua media nasional yang isinya meminta kepada pihak-pihak yang memiliki modul untuk mengembalikannya ke The Institute for Motivational Living atau memusnahkan modul tersebut.

Nini Sumohandoyo, Corporate Marketing Communications Director PT Prudential belum dapat memberikan komentarnya terkait gugatan The Institute for Motivational Living. Nini menegaskan, bahwa sejauh ini pihaknya tengah berupaya untuk menyelesaikan sengketa ini secara baik. "Permasalahan ini masih terus diupayakan untuk diselesaikan secara baik oleh para pengacara kami" ucapnya.

Diambil dari kontan.co.id

Prudential Sued over Copyright for US$ 1,19 Million !!!

Taken from the indonesiatoday.com

American consulting firm The Institute for Motivational Living Inc has filed a lawsuit against PT Prudential Life Insurance for what it believes a violation of copyright committed by the insurance firm.

The consulting firm basically questioned a module that has been used by Prudential entitled "Mengenai Tipe & Karakter Manusia Melalui: DISC Profile (what, why, how)". The module is considered as a substantial and unique creation of the consulting firm titled "Understanding Your Personality Style and Power Point Person to Person".

"Although the form and content have changed, it is a substantial and peculiar a creation of ours," said Heru Muzaki, the legal counsel of The Institute of Motivational Living, Sunday as reported by Kontan.co.id.

He also explained that the material has been created by The Institute for Motivational Living since 2000. Even the copyright of “Understanding Your Personality Style” and “Power Point Person to Person” have already been registered in US. This material has been distributed to many countries. In Indonesia, the materials have been translated into Bahasa Indonesia in 2003.

In 2009, The Institute for Motivational Living learnt that there are violations of copyright in their materials. Prudential uses the module “Mengenal Tipe & Karakter Manusia Melalui: DISC Profile (what, why, how)” for training organized by the PRUsales Academy.

The Institute for Motivational Living considers the training activities are commercial activities because they use to train agents to sell insurance products optimally. Furthermore, Heru Muzaki said that ” Prudential allows participants to reproduce free of charge and in a module that is not listed our name as the copyright holder”.

Upon this subject, The Institute for Motivational Living had three times sent notification letters within a period from July to September 2010. But until the lawsuit was filed on October 1, even to the court has yet to get satisfactory results. “There is already a discussion but have not found common ground” he said.

In the lawsuit, The Institute for Motivational Living claims they do not get benefit from the creation of material which they should. therefore, the consulting firm demands either material or formal compensation of amounted to US$1.190 million from Prudential. Not only that. The Institute for Motivational Living asked the judges to punish Prudential to make an announcement in two national media which contents shall request to the parties that have the module in question to return it to The Institute for Motivational Living or destroy it.

Nini Sumohandoyo, Corporate Marketing Communications Director of Prudential has not been able to make any comments related to the lawsuit. She asserted that so far Prudential have been working to resolve this dispute in a good way. (Theindonesiatoday.com)

Arrest of Ship in Indonesia: An Overview

I.Introduction

Indonesia, as an archipelagic state, had ratified the International Convention on Maritime Liens and Mortgages 1993. As a continuance, it also ratifies the International Convention on Arrest of Ships 1999 (“Arrest of Ships Convention”). The purposes of such ratifications are to harmonize and to converge Indonesian Shipping Laws with the other Asian countries’ laws. Such harmonization will also automatically encourage creditors in providing fund for ship procurement.

The ratification of the two international instruments brings a consequences that there shall be national legislation which conform those conventions. Indonesia subsequently enacted the Law Number 17 of 2008 regarding Maritime (“Indonesian Maritime Law”). This law serves as harmonization of the two international conventions as well as a gate to the new era of Maritime Law in Indonesia.

This writing will focuses itself on the arrest of ship in Indonesia. This paper will be divided into 3 (three) parts. Part I will concentrate on Indonesian Maritime Law, specifically on provisions governing the arrest of ship. This part will also describe the requirements and mechanisms set forth in Indonesian Maritime Law to arrest ship/s. Part II will give the reader general overview of the Arrest of Ships Convention. An overview is deemed important to predict future regulation concerning arrest of ship in practice. This is since the Indonesian Government has not yet issued any enforcement regulation of Indonesian Maritime Law. Part III is the conclusion that can be derived from previous parts.

II. The Arrest of Ship on Indonesian Maritime Law

Indonesian Maritime Law provides that arrest of ship shall be conducted through Court-mechanism. Such mechanism is conducted without filing a lawsuit against the owner of ship. Accordingly, based on Article 222 of Indonesian Maritime Law, Port master can only arrests ship based on written Court order. Such order can be issued based on 2 (two) reasons:

a. The ship is connected with criminal matter; or

b. The ship is connected with civil matter.

In the event that the ship is connected with civil matter, a Court order is made based on a claim known as Maritime Claim. Such claim is conducted without file a lawsuit against the ship. The law also specifically mentions several conditions in which a Maritime Claim may arise. Maritime Claim is defined as a claim arising out of one or more of the following:

(a) loss or damage caused by the operation of the ship;

(b) loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;

(c) salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;

(d) damage or threat of damage caused by the ship to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage; compensation for such damage; costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; and damage, costs, or loss of a similar nature to those identified in this subparagraph (d);

(e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of its crew;

(f) any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;

(g) any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charter party or otherwise;

(h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;

(i) general average;

(j) towage;

(k) pilotage;

(l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;

(m) construction, reconstruction, repair, converting or equipping of the ship;

(n) port, canal, dock, harbour and other waterway dues and charges;

(o) wages and other sums due to the master, officers and other members of the ship's complement in respect of their employment on the ship, including costs of repatriation and social insurance contributions payable on their behalf;

(p) disbursements incurred on behalf of the ship or its owners;

(q) insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the ship owner or demise charterer;

(r) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the ship owner or demise charterer;

(s) any dispute as to ownership or possession of the ship;

(t) any dispute between co-owners of the ship as to the employment or earnings of the ship;

(u) a mortgage or a "hypothèque" or a charge of the same nature on the ship;

(v) any dispute arising out of a contract for the sale of the ship.

In relation with these conditions, Indonesian Maritime Law provides that further mechanism regarding arrest of ship will be further regulated by a Minister Regulation. Unfortunately, until the present time, such regulation has not been issued by relevant authorities. As a form of compliance, the regulation will be made in accordance with the Arrest of Ships Convention. Therefore, it is necessary to conduct an overview towards the stated Convention.

III. General Overview on Arrest of Ships Convention

The Convention defines arrest as any detention or restriction on removal of a ship by order of a Court to secure a Maritime Claim. However, this does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument. A ship may only be arrested in respect of a Maritime Claim. This means that there exists no other claim against the ship.

A ship may be arrested or released from arrest only under the authority of a Court of State in which the arrest is effected. Arrest may be conducted for the purpose of obtaining security. In this vein, Arrest of Ships Convention provides flexibilities. Arrest can be made regardless the existence of a jurisdiction clause or arbitration clause in any relevant contract. The arrest can also be made even if such arrest is to be adjudicated in a State other than the State where the arrest is effected, or is to be arbitrated, or is to be adjudicated subject to the law of another State.

Release from Arrest

When it comes to the question of how a ship which is arrested can be released, Arrest of Ships Convention expressly provided that a ship shall be released when sufficient security has been provided in a satisfactory form. Nevertheless, this may not be applied in cases of dispute regarding ownership or possession of the ship and dispute between co-owners of the ship as to the employment or earnings of the ship. In these cases, the Court may permit the person in possession of the ship to continue trading the ship, upon such person providing sufficient security, or may otherwise deal with the operation of the ship during the period of the arrest.

Satisfactory form means that there shall be an agreement or settlement proposal agreed by both parties. In the absence of such agreement, the Court has authority to determine the nature and the amount of satisfactory form. Nonetheless, such nature and amount shall not exceed the value of the arrested ship. Once the person responsible for the ship has provided sufficient security in satisfactory form, such person may at any time apply to the Court to have that security reduced, modified, or cancelled.

Right of Re-arrest and Multiple Arrest

Basically, a ship cannot be arrested subsequent to sufficient security given by the person responsible to secure same Maritime Claim. Nonetheless, this is not applicable in several situations. First, the nature or amount of security is inadequate; or second, the person who has already provided the security is not, or is unlikely to be, able to fulfill its obligations; or third, the arrested ship or the security provided was released upon the consent of the Claimant (person who raise Maritime Claim) acting on reasonable grounds; or because the Claimant cannot, by taking reasonable steps, prevent the release.

Protection of Owners and Demise Charterers of the Arrested Ships

To arrest a ship, one shall be careful in examining the grounds. This is since the Arrest of Ships Convention provides obligation for Claimant, who (1) have been conducting wrongful or unjustified arrest; or (2) excessive security actually have been demanded or provided, to provide security for any loss or damage arisen as a result of the arrest. The amount of such security shall be imposed and determined by the Court who issues the arrest. The Court also empowered to determine the amount of compensation for the loss or damage arisen from the above two conditions.