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Architecture is a work of art of high value. An architect who produces architectural works not only masters the technicalities of making them but is also an artist. In historical records there are not a few architectural works that have similarities to each other, for example, the Eiffel Tower in Paris and the Golden Gate Bridge in San Francisco, similar works are often found in various countries. Then how to measure whether the work that was born later is an independent work and not the result of plagiarism? To prove that an architectural work is an original work, the concept of substantial similarity can be used. Self-creation is a proven formula that has been carried out in the United States of America. Indonesia itself does not yet have clear formulations and qualitative measurement tools to determine whether similar architectural works that are born later are original works of art and not works of plagiarism. Therefore, Indonesia needs to technically regulate acts of imitation that are considered to substantively violate the entire form, spatial arrangement, and design of architectural works through amendments and updates to the Copyright Law in the future.
Research Center for Law, Institute of Social Science and Humanities, National Research and Innovation Agency (BRIN), Jakarta, Indonesia
*Address all correspondence to: th_tupang@yahoo.co.id
1. Introduction
Intellectual Property Rights (IPR) are rights that arise from the brain’s thought processes that produce a product or process that is useful to humans. In general, it can be said that objects regulated in IPR are works that arise or are born because of human intellectual abilities. But in a lot of literature, there are also those who use the term Intellectual Property Rights.
Philosophically, the rationale for providing legal protection to individuals for their creations cannot be separated from the domination of the natural law school of thought which emphasizes the human factor and the use of reason. The origin of the conception of natural law can be traced back to the ancient Greeks, which is about +2500 years ago. According to this theory, natural law is seen as a universal and eternal law [1].
One of the ancient Greek philosophers, Aristoteles, argued that natural law has a universal scope and is based on the idea that natural law is independent of all human desires. Later in the middle ages, Thomas Aquinas stated that natural law is part of the nature of life and through natural law humans participate as rational beings. Natural law is part of God’s law. Humans as intelligent beings apply part of God’s law to human life, so that he can distinguish between good and bad [2]. Therefore, basically, IPR is recognized as the work of a person based on his intellectual ability, and the person who creates and produces it will get natural ownership rights.
In principle, justice will give someone what is his right, meaning that the law guarantees that something that someone gets is his right. In the next stage, the law will also provide guarantees for each person to enjoy exclusively the material objects created by him, with the help of the state.
Apart from that, it is also interesting to disclose the property theory of John Locke in his famous work: Two Treaties of Government, which basically states that humans from birth have the right to inherit the world given by God. Furthermore, he also stated that: “Every man has a ‘property’ in his own “person”. The labor of his body and the work of his hands, we may say, are his proper.” This theory became known as “Labor Theory” which, according to Justin Hughes, although incomplete, was very strong in providing a foundation for intellectual property protection.
One of the influences of this natural law thinking is that apart from being seen as economic or commercial rights, IPRs are also seen as political rights or human rights [3]. From the point of view of economic rights, the protection of IPR is essentially the protection of the economic rights of a human intellectual creativity. Arranged objects are works arising from human intellectual abilities. According to W.R Cornish, intellectual property protects the use of ideas and information that has commercial or economic value. David I Bainbridge also argues that: “Intellectual Property” is the collective name given to legal rights which protect the product of the available to cover that body of legal rights which arise from mental artistic endeavor.
In Article 27 of the DUHAM, it has been stated that.
Everyone has the freedom to participate in the life and culture of society, enjoy the arts and be involved in the advancement of science;
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary, or artistic production produced and created by him.
In Indonesia itself, in the context of the implementation of human rights, IPR can also be seen as property rights, which are rights that cannot be taken arbitrarily by anyone. Thus, the government is obliged to provide protection for the implementation of this human right. This is important because the provisions that provide constitutional guarantees for human rights are considered one of the main characteristics of the principle of rule of law in a country, including Indonesia.
IPR can also be classified as rights over intangible goods. This is because a protected object is an idea generated by someone. The classification of these rights into the law of property is because the nature of these rights is close to the nature of material rights and is an absolute right. The analogy is that if these ideas come out of the human mind and are incarnated in a creation of literature, science, etc., then they become tangible objects and can be a source of profit. The IPR system is basically an exclusive right granted by the state privately to every creator, inventor, designer, and so on, to get appreciation and reward for their work and creative process to produce something useful for mankind. Through these awards and rewards, it is hoped that it will encourage others to do the same thing.
Intellectual property rights are the same as objects that have value to be transferred. Objects that have value certainly need to be regulated legally. The law of objects, regarding objects in general states the broadest meaning of the word “object”, is everything that can be owned by people. Here, object means object as opposed to subject or “person” in law. There are also words that nouns are used in a narrow sense, namely as things that can only be seen. There is also used, if one’s wealth is meant [4].
Objects regulated in IPR are works that arise or are born because of human intellectual abilities. As an intellectual work that is born from the ability of the human brain, IPR contains the following principles [5]:
Economic principles;
The principle of justice;
Principles of culture (the development of science, literature, and art to improve human life);
Social principles (regulating human interests as citizens).
IPR is divided into two major parts, namely Copyright and Industrial Property Rights, which include industrial property rights including.
Patents;
Marks and Geographical Indications;
Trade Secret;
Industrial Design;
Integrated Circuit Layout Design;
Plant Variations.
In its development, the argument that states that developed countries are countries that have abundant natural wealth is now not very appropriate. Mastery of science and technology that produces intellectual works that have economic value is now a measuring tool for a country’s progress.
In its development, IPR has changed from being a part of business law that was not overlooked, and now it has become one of the business fields that encourages the development of the world economy. Universities and research institutes in developing countries no longer carry out research solely for science, but far more how research results can then benefit markets and industry. Collaboration between universities, research institutes, and industry has become a promising new phenomenon. This collaboration, with the support of experts and specialists, will continue to develop by creating new inventions that are useful for society at large [6].
Within this framework, technology transfer is needed. Technology Transfer [7] as an application of technology originating from developed countries to be implemented in Indonesia in an effort to spur industrialization. If related to the nature of technology, then the issue of technology transfer is not limited to technical mastery of the transferred technology, but also includes managerial mastery, and must even be supported with certain values. Entering the new millennium, IPR is an important issue that always receives attention, both in national and international forums.
The development, renewal, and development of technology in general is the work of the community, because of the craftsmanship, perseverance, ability to think, and work of its members. Activities among researchers, scientists, and people with certain qualifications with high creativity are also works of humanity. The results of persistence, creativity, and the resulting ability are basically able to change, improve, and accommodate the various needs of humanity, for the present and for the future [8].
According to Robert C Sherwood as quoted by Ranti Fauza Mayana in the book Protection of Industrial Designs in Indonesia in the Era of Free Trade in Intellectual Property Rights Understanding the Basic Principles, Scope and Applicable Laws, it is stated that there are five basic theories of intellectual property protection, namely.
Reward Theory: This theory means that recognition of intellectual work is needed produced by creators/inventors/designers by giving awards as a counterweight to their creative efforts to find/create an intellectual work.
Recovery Theory: In this theory, it is explained that creators/inventors/designers who have spent time, money, and energy to produce intellectual works must get back what they have spent.
Incentive Theory: Based on this theory, incentives need to be given to seek the acceleration of useful research activities.
Risk Theory: In Risk Theory, it is stated that work contains risks. Intellectual property which is the result of research carries the risk of allowing other people to first discover the method or improve it. Thus, it is reasonable to provide a form of legal protection for efforts or activities that contain these risks.
Economic Growth Stimulus Theory: Protection of IPR is a tool for economic development. A country with an IPR protection system running well, then its economic growth will also be good.
The writing of this part of the book is the result of a literature study that utilizes documents and literature related to indications of plagiarism of architectural works on the pretext of being inspired by previous architectural works. Research data was obtained from various books and journals, both national and international by utilizing Internet media. The data obtained is narrated and then analyzed using the Indonesian Copyright Law and the principle of originality which has been widely applied in developed countries, especially in the United States.
The purpose of this research is to review how to prove architectural works that were born later are indeed inspired by previous works and are not the result of plagiarism. It is in this context that it is important to adopt the principle of originality of architectural works in the Indonesian Copyright Law, as has been done in many developed countries. The principle of originality is actually the assessment that the works that appear later do not substantially imitate previous works, meaning that in new architectural works it must be proven that there is an independent creative process carried out as a form of creativity from the creator.
One indicator of the level of progress and intelligence of a nation can be seen from the many discoveries in science and technology. A discovery certainly not only gives pride to the inventor and his country but can also be economically profitable. The exploitation of science and technology through a series of research, so as to produce findings that are beneficial to society, has a place that is highly valued, especially in developed countries.
In order to support the growing interest of community members to create and innovate, the state must provide facilities. One of these conveniences is the issue of legalization by law. As a developing country, of course we must proactively provide understanding to members of the public about the importance of rights in the IPR dimension. One aspect of IPR that is often in the spotlight is copyright. It should be a creation that has economic value should be given an award. One of the awards referred to is a reward for the creator.
Law Number 28 of 2014 Concerning Copyright has explained that copyright consists of three fields, namely science, art, and literature. Each of these sections has quite a lot of types of copyrighted works. Compared to other intellectual works such as patents, brands, industrial designs, and trade secrets, copyright is part of the intellectual property rights that govern the most protected objects.
Copyright as part of IPR also has a close relationship with the creative economy and information technology that is currently being developed in Indonesia. The development of the creative economy and information technology is believed to be able to improve the country’s economy. Therefore, legal protection is needed for copyrights that arise, especially in terms of protection of related rights. IPR itself can generally be divided into two parts, namely copyright and industrial property rights, as can be seen in the Figure 1.
Figure 1.
Distribution of types of IPR. Source: Simatupang [9].
Information and communication technology is an important aspect of the current changes to the Copyright Law. The potential for copyright infringement by utilizing information technology through Internet media has recently shown quite high numbers. Proportional arrangements are necessary, so that positive functions can be optimized and negative impacts can be minimized. New matters regulated in Law Number 28 of 2014 which were not previously regulated in Law Number 19 of 2002 Concerning Copyright are as follows:
A longer period of time as implemented in many countries, such as certain copyright protection is enforced for the lifetime of the creator plus 70 (seventy) years after the creator’s death.
Restrictions on sales and transfer of economic rights.
Settlement of disputes through mediation, arbitration or court processes, as well as application of complaint offenses for criminal prosecution.
Seller’s responsibility for goods resulting from copyright infringement and related rights it sells.
Copyright can be used as a fiduciary guarantee object.
The minister has the authority to delete works that violate.
Creators, copyright holders, and related rights owners become members of the collective governing body to collect royalties.
Authors and related rights owners receive royalties for works or related rights products created in a legal relationship and used commercially.
Collective management institutions whose function is to collect and manage the economic rights of creators and owners of related rights are required to submit an application for an operating permit to the Minister.
Use of copyright and related rights in multimedia devices.
Legally, according to the declarative principle, the special rights and privileges granted by the state to the creator are born when the copyrighted work can be realized in a tangible form without the need to be registered. According to Copyright Law, an author is a person or several people who individually or jointly produce a creation that is unique and personal. Whereas what is meant by work is any copyrighted work within the scope of science, art, and literature that is produced based on inspiration, ability, thought, imagination, dexterity, skills, and expertise as outlined in a tangible form.
3.2 Scope
In the Copyright Law, it is stated that the copyright holder is the creator as the owner of the copyright, the party who received the rights legally from the creator, or other parties who received further rights from the party who received the rights legally. The scope of copyright covers the fields of science, art, and literature. Further classification and types of copyrighted works from each protected field in the Copyright Law can be seen in the Figure 2 and Table 1.
Figure 2.
Scope of copyright. Source: Law Number 28 of 2014 Concerning Copyright.
Science
Art
Literature
Books, pamphlets, published versions of works, and all other scientific/non-fictional written works)
Songs and/or music with or without subtitles
Fiction publications (poems, short stories, and novels)
Lectures, speeches, and other similar creations
Drama, musical drama, dance, choreography, wayang, and pantomime
Props made for the benefit of education and science
Fine art in all forms such as paintings, drawings, carvings, calligraphy, sculptures, sculptures, or collages
Architectural work
Applied arts
Map
Architectural work
Translations, interpretations, adaptations, anthologies, databases, adaptations, arrangements, modifications, and other works resulting from the transformation
Batik artwork or other motif art
Translation, adaptation, arrangement, transformation, or modification of traditional cultural expressions
Photographic works
Compilation of works or data, either in a format that can be read with a computer program or other media
Portrait
Video game
Cinematographic work
Computer program
Compilations of traditional cultural expressions as long as they are original works
Table 1.
Field and type of copyright.
Source: Law Number 28 of 2014 Concerning Copyright.
3.3 Recording procedure
Unlike the case with Law Number 19 of 2002 which recognizes the term registration, Law Number 28 of 2014 no longer recognizes the term registration but records. As stipulated in Law Number 28 of 2014 Concerning Copyrights, the recording of creations and related rights products is not a requirement for obtaining copyrights and related rights. Registration of creations cannot be carried out on paintings in the form of logos or distinctive marks used as brands in trade in goods/services or used as symbols of organizations, business entities, or legal entities.
Registration of works and related rights products shall be submitted with a written application in Indonesian by the creator, copyright holder, owner of related rights, or their proxy to the Minister. Applications can be made electronically or manually by attaching examples of works, related rights products, or substitutes for them. Then attach a statement of ownership of the creation and related rights and pay a fee. If an application is filed by several people who are jointly entitled to a work or related rights product, the application must be accompanied by a written statement. Meanwhile, if the ownership is from a legal entity, then the application must be accompanied by an official copy of the deed of establishment of the legal entity which has been legalized by the competent authority. If the application is submitted by several people, the applicant’s name must be written including one of the applicant’s selected addresses. In the event that the application is submitted by an applicant originating from outside the territory of the Unitary State of the Republic of Indonesia, it must be made through an intellectual property consultant registered as a proxy.
The Minister will examine applications that meet the requirements. Examination is carried out to determine whether the work or related rights product being applied for is essentially the same or not the same as the work recorded in the General Register of Works or other intellectual property objects. The results of the inspection are used as material for the Minister’s consideration to accept or reject the application. The Minister shall make a decision to accept or reject the application within a maximum period of 9 (nine) months from the date of receipt of the application that meets the requirements. In the event that the Minister accepts the application, the Minister issues a creation registration letter and records it in the Public Register of Works. On the other hand, if the Minister rejects the application, the Minister shall notify the applicant in writing of the refusal along with reasons.
3.4 Dispute resolution
Dispute settlement as stipulated in the Copyright Law can be resolved through alternative dispute resolution, arbitration, or the Commercial Court. All copyright infringement lawsuits must be filed with the Commercial Court. The Commercial Court is the only institution that has the authority to do so, as long as the parties are located in Indonesian territory. The Commercial Court must first seek settlement of disputes through mediation before filing criminal charges. Authors, copyright holders, and related rights holders or their heirs who suffer economic losses are entitled to receive compensation as stated in court decisions regarding criminal cases of copyright and related rights. Compensation payments to creators, copyright holders, and/or owners of related rights are paid no later than 6 (six) months after the court decision has permanent legal force.
In the event that a work has been recorded, other interested parties can file a claim for cancelation of the registration of a work in the Public Register of Works through the Commercial Court addressed to the registered creator and/or copyright holder. The transfer of copyright on all works to other parties does not reduce the rights of the creator or his heirs to sue anyone who deliberately and without rights and without the consent of the creator violates the moral rights of the creator. The transfer of the performers’ economic rights to another party does not reduce the rights of the performers or their heirs to sue anyone who deliberately and without rights and without the consent of the performers violates the moral rights of the performers.
The creator, copyright holder, or owner of related rights have the right to file a claim for compensation to the Commercial Court for infringement of copyright or related product rights, in the form of a request to surrender all or part of the income derived from holding lectures, scientific meetings, performances or exhibitions of work which constitute result of copyright infringement or product-related rights. In addition, the plaintiff can also apply for a temporary injunction or interlocutory decision to the Commercial Court to request confiscation of works that have been published or reproduced, and the copying tools used to produce works resulting from copyright infringement and related rights. The Commercial Court can also order copyrighted products and related rights to stop publishing, distributing, communicating, and duplicating works because they are the result of copyright infringement and related product rights.
3.5 Criminal provisions
Actions that are considered criminal acts according to the provisions of Law Number 28 of 2014 Concerning Copyrights are any acts that violate the economic rights of copyright owners and holders and related rights for commercial purposes. The actions referred to are as follows:
Eliminate, change, or destroy information about: methods or systems that can identify the originality of the substance of creation and its creators and information codes and access codes. Including copyright electronic information which includes information about a work, which appears and attaches electronically in connection with the activity of announcing a work, the author’s name, alias or pseudonym, the creator as the copyright holder, the period and conditions of use of the work, information number and code;
Destroy, destroy, remove, or render non-functional means of controlling technology used to protect creations or related rights products as well as safeguards for copyrights or related rights, except for the interests of state defense and security, as well as other reasons in accordance with the provisions of laws and regulations, or otherwise agreed;
Renting of works without the permission of the creator or copyright holder;
Translation of works without the permission of the creator or copyright holder;
Adaptation, arrangement, or transformation of works without the permission of the creator or copyright holder;
Performance of works without the permission of the creator or copyright holder;
Communication of works without the permission of the creator or copyright holder;
Publishing works without the permission of the creator or copyright holder;
Reproduction of works in all its forms without the permission of the creator or copyright holder;
Distribution of works or copies thereof without the permission of the creator or copyright holder;
Publication of works without the permission of the creator or copyright holder;
Trade place managers allow the sale and/or duplication of goods resulting from copyright infringement and/or related rights at the trading place they manage.
Commercial use, reproduction, announcement, distribution, and/or communication of portraits made for the purpose of commercial advertising or billboards without the written consent of the person being photographed or their heirs.
Broadcasting or communicating performances by performers, fixing shows that have not been fixed, duplicating fixing shows in any way or form, distributing fixing shows or copies thereof, renting fixing shows or copies to the public, and providing fixing shows that can be accessed by the public without the permission of the performer.
Reproduction of the phonogram in any manner or form, distribution of the original or a copy of the phonogram, rental of copies of the phonogram to the public, and provision of the phonogram by wire or wirelessly accessible to the public without permission from the phonogram producer;
Broadcast rebroadcast, broadcast communication, broadcast fixation, and/or duplicating broadcast fixation without a broadcasting institution’s license.
In fact, every intellectual work produced by everyone cannot stop as a result of scientific development. More than that the development of science in question must be useful for the life of mankind. This means that intellectual works that require energy, time and money must be utilized by many people, while at the same time bringing economic benefits to the owner.
However, in Indonesia, creators, inventors, and designers have not received proper benefits for their intellectual works because there are still many piracy and plagiarism. This is because every time an original registered intellectual work is born, and at the same time, there are already counterfeit products that are “created” by unscrupulous business actors who are not responsible. Imitation of this original product was carried out massively. In general, it is also known that counterfeit products are sold cheaper than the original product. The issue of the relatively large price difference between genuine and imitation products should receive attention from all parties involved. Especially in the tax and licensing sector, it should be made easier so that genuine products can be purchased at more affordable prices by consumers.
One of the creative works that still gets a little attention in Indonesia is an architectural work. Architectural work is basically a work of art from an architect. An architect in his creative process cannot be separated from the influence of previous architectural works that inspired him. The question of whether an architectural work that was born later is included in the area of inspiration or plagiarism is a question that is not easy to answer. However, protection of a copyrighted work that must be protected by moral rights and economic rights is a mandatory thing that must be provided by the rule of law.
Architectural works have experienced rapid development from time to time, and the amount of information available in various media has facilitated irresponsible acts of plagiarism. The lack of awareness to respect copyrighted works and the unclear arrangement between actions that include plagiarism or are indeed inspired by previous works have contributed to exacerbating the existing problems [10]. The early presence of architecture began because of the need for a building which was expressed by an architect through working drawings [11]. In addition, architecture is also part of art, because architecture cannot be separated from taste. This causes the understanding of architecture to continue to evolve and is influenced by ways of thinking, ways of making, ways of viewing, and culture [12].
Historically, architecture as a science has provided masterpieces for human life and civilization. The science of architecture that produces architectural works is a marker of identity and pride of a country. There are so many famous architectural masterpieces to this day, such as the Eiffel Tower by architect Gustave Eiffel which was built in 1889 or the Golden Gate bridge masterpiece by Joseph B. Strauss in 1930 in San Francisco which has always been a backdrop that also embellishes Hollywood films.
Architect Zaha Mohammad Hadi (Zaha Hadid), a woman born in Baghdad, Iraq, October 31, 1950, also contributed to the world’s architectural treasures today. Zaha Hadid’s works are indeed unusual, even quite special. Some of them even trigger pros and cons. For example, the Al Warkah football stadium in Qatar, which will host the 2022 World Pilala in Qatar, is said to have killed many workers during construction. Other notable architectural works by Zaha Hadid include the Aquatic Center for the 2012 London Olympics, the Heydar Aliyev Center in Baku, Azerbaijan, and the MAXXI Museum in Rome, Italy [13].
Indonesian architects are no less great, for example, the DPR/MPR building, the masterpiece of architect Soejoedi Wirjoatmodjo, born in Surakarta, December 27, 1928, which was built in 1965. Or the Itiqlal Mosque, the National Monument and Gelora Bung Karno, the masterpiece of architect Friedrich Silaban, born in Bonandolok, Sumatra North, December 16, 1912.
According to Zaha Hadid, at first glance there are similarities between one architectural work and another. This is something that is natural because every architect is always influenced by what he sees [14]. Architectural works that appear later, whether consciously or not, are inspired by previous architectural works, and this is something that is reasonable and can be legally justified. The problem is what happens when an architect’s work is an imitation, both as a whole and as an imitation of the most substantive part of an architectural work.
Not all imitation processes can be justified, for example, the case of Zaha Hadid in China. Even though Zaha Hadid justifies imitation, she never brought a plagiarism case against her work to court. An article titled Never Meant To Copy, Only To Surpass: Plagiarism Versus Innovation In Architectural Imitation, tells about a case of plagiarism committed by a developer from China, Chongqing Meiquan, who made a building called Meiquan twenty-second century. In the design process, Chongqing copied the work of Zaha Hadid in Beijing, China, namely Wangjing SOHO. Zaha Hadid was accused of plagiarism because the Meiquan Chongqing building had begun its construction process at the same time as the Wanjing SOHO building, so Zaha Hadid suspected that there had been an abuse of blueprints belonging to Wanjing SOHO. In addition, with this simultaneous development, it is feared that the construction of the twenty-second century Meiquan will be completed earlier than the original building, namely Wanjing SOHO. This of course will be detrimental to many parties, including the project owner and Zaha Hadid herself [15].
5. Copyright protection for architectural works in Indonesia
The new Copyright Law has protected various aspects of copyright and related rights that have a close relationship with the dimensions of technology and information, especially copyrighted works born of their contact with the Internet world. In the future, Copyright Law needs to accommodate more aspects of the legal protection of architectural works by looking at technical understandings related to architecture as stipulated in Law Number 6 of 2017 concerning Architects (Architect Law). According to the Act on architects, what is meant by architecture is actually a combination of science, technology, and art.
Legal protection for architectural works must be able to cover aspects of copyright as a combination of science and art born of human intellectual abilities. The application of architectural copyright protection, which has received little attention so far due to the difficulty in determining the uniqueness of architectural work, must find a way out [16]. In the Copyright Law, architectural works are physical buildings, building design drawings, building technical drawings, and building models or mockups. In other parts of the Copyright Law, it stipulates that the use, retrieval, duplication and/or modification of a creation, and/or related rights product, either in whole or in large part, is not considered to violate copyright if the source is stated.
The formal norms contained in Article 44 paragraph (1) of the Copyright Law are norms of contradiction, which according to Bruggink are legal norms conflicts between prohibition norms and permissive norms or permit norms [17]. This means that the limitations and/or exclusions as referred to in Article 44 paragraph (1) of the Copyright Law are certainly a “violation” of the law, if the source is not stated, for commercial purposes, using, retrieving, duplicating, and/or modifying a work and/or product-related rights in whole or in substantial part. The elucidation of Article 44 Paragraph (1) of the Copyright Law states that what is meant by “substantial portions” is the most important and distinctive part that distinguishes a work.
6. Comparison of arrangements for the protection of architectural works in the United States and Indonesia
The United States implemented the protection of architectural works after passing the Architectural Works Copyright Protection Act (AWCPA). Under Section 102 (a) Title 17 of the United States Code, works protected under the USA Copyright Act are literary works, musical and lyrical works, dramatic works and accompanying music, pantomime and choreography, pictorial works, moving images and audiovisuals, sound recordings, and architectural works. Furthermore, in Section 101, it is stated that what is meant by an architectural work is a building design embodied in a concrete form of expression, including architectural plans and building drawings. It also includes the overall form of the arrangement, the composition of the space, and the elements in the design, but does not include the individual standard features. Standard features that are not included in protected parts include windows, doors, and various functional elements whose placement is in accordance with their use. To determine whether architectural works that appear later are original architectural works and not the result of plagiarism from earlier architectural works, the United States has applied the principle of originality after the emergence of cases decided by courts, which will be explained in the next section.
Indonesia itself regulates the protection of architectural works in the Copyright Law, which defines architectural works as works in the form of physical buildings, building arrangements, model drawings, or building markets. Meanwhile, those included in the violation of architectural works, the Indonesian Copyright Law has not regulated it explicitly. However, referring to the limitations of copyright infringement that are regulated in general, which states that the use of works and related rights products in whole or in substantial part is an infringement. It is further regulated that the meaning of a substantial portion is the most distinctive and important part and characterizes a work. To clarify the comparison of arrangements for the protection of architectural works in the USA and Indonesia, it will be described in two aspects, namely definition and size of plagiarism, as shown in the Table 2.
USA
Indonesia
Definition
Architectural work includes building plans that are embodied in a tangible form, including architectural plans and building drawings. It also includes the overall form of arrangement, spatial composition, and elements in the design, but does not include standard features such as windows, doors, and various functional elements whose placement is in accordance with their use.
Architectural works include works in the form of physical buildings, building arrangements, drawings, and building models.
Size of Plagiarism
The panel of judges in the USA has applied the principle of originality to the alleged plagiarism of architectural works. This principle is to prove that architectural works that appear later can be said to be inspired and not plagiarized if the creator does independent creativity and does not take a distinctive/important part of the previous work.
Not yet set specifically the dimensions of plagiarism of architectural works.
Table 2.
Comparison of definitions and measures of architectural work violations in the USA and Indonesia.
Source: Title 17 of the United States Code and Indonesian Copyright Act.
7. Application of the concept of substantial similarity in the protection of architectural works
Every country will feel proud if it has a beautiful building icon; moreover, it can attract tourists to visit it. On the other hand, countries in the world are also competing to make buildings with high architectural art. At the beginning of its history, architectural works with high artistic value were dominated by religious buildings, developing into other functional buildings such as hospitals, markets, museums, and so on. An architectural work is actually a work that combines two aspects at once, namely technical and esthetic aspects (Figures 3–7) [20].
Figure 3.
The Eiffel tower [18].
Figure 4.
The Tokyo tower [18].
Figure 5.
The Golden gate bridge [18].
Figure 6.
The Ponte de 25 Abril [18].
Figure 7.
Design of the new DPR building [19].
Referring to famous architectural masterpieces that recently appeared “copy” in various places, then can it be said that architectural works that have appeared recently have imitated architectural works that have appeared for the first time? This question is certainly not easy to answer, because most architects are basically “artists” who are always influenced by works of architecture they have seen before, perhaps even influencing their creative process in creating.
Assessing allegations of plagiarism in an architectural work according to the Copyright Act is not an easy job. Alleged plagiarism of architectural works should be assessed through criticism from an architect, and even one of the studies [21] introduced that the discourse of discussing the plagiarism of architectural works is actually more interesting than judging it by copyright law. The ease of access to various resources on the Web on Internet media has made it possible to democratize access to information, but at the same time, it also raises huge plagiarism problems [22]. Acts of plagiarism of architectural works through Internet media show extraordinary numbers, and detection engines such as plagiarisma.net and viper are felt to be insufficient so that other developments are needed that can detect plagiarism of architectural works [23]. One of the discourses offered is to detect the plagiarism of architectural works in the form of text, by categorizing six different topics, namely prototype, archetype, motif, expression of ideas, modification, and modernization, and some of these topics can be considered together in certain cases. This is the first step in objective guidelines for assessing acts of architectural plagiarism [24].
One of the architectural violation cases that occurred in New York, United States of America, was between Thomas Shine and David Childs. Shine sued Childs for infringement of rights in the form of plagiarism in building design, because Childs’ building design, namely “Freedom Tower”, was considered to have similarities with Shine’s building design, namely “Shine 99” and “Olympic Tower” [25]. Considering that an architect is an artist who is definitely influenced and inspired by the architectural works of other people he has seen and admired, the boundary between being inspired and copying is a question that is not easy to answer.
However, bearing in mind that an architectural work is a copyright that must receive respect and legal protection, violations, both imitation and plagiarism, cannot be justified. To prove that architectural works in the future are copies and plagiarism of previous works, one of the principles that can be used is the principle of originality.
In the United States, the application of the principle of originality uses the substantial similarity approach and the independent creation approach. If there are similarities between the two architectural works created, then the principle of independent creation can be used to prove that one architectural work is not a copy of another architectural work, and vice versa. This concept can actually be applied in Indonesia because indirectly the Indonesian Copyright Law also recognizes that the independent creative process carried out by the creator, by not taking things that are substantive in nature from previous works, is not a copyright infringement.
The application of the principle of originality in Indonesia has never been carried out because there is no court to handle cases related to the similarity of architectural works. The Indonesian Copyright Law does not yet stipulate in detail what can and cannot be protected from an architectural work, so that in the future the application of the principle of originality can be formulated using several approaches. In the United States, the principle of originality has been applied in the case of Shine vs. Childs through proving substantial similarity or taking substantial part. The protection of architectural works in the Copyright Law in the United States very detailed regulates what is protected as stated in Article 10 of the United States Copyright Law (title 17 United State Code) that the protection of architectural works includes all forms and arrangements, spatial composition and elements in the design as well as the arrangement of things that are not protected from architectural works, such as standard features, in the form of windows, doors, and functional elements [26].
The results of this study conclude that the principle of originality with a substantial equality approach and an independent creation approach can be used to prove that an architectural work that appears later is not the result of a copy of an earlier architectural work, and vice versa, as has been implemented in several countries, especially in the United States. Therefore, Indonesia needs to technically regulate acts of imitation that are deemed to substantively violate the entire form, spatial composition, and design of architectural works through amendments and updates to the Copyright Law in the future.
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Written By
Taufik H. Simatupang
Submitted: 04 December 2022Reviewed: 06 January 2023Published: 08 February 2023
Open access peer-reviewed chapter
