Three former commissioners of the Indonesian National Collective Management Organization (LMKN), recently succeeded in challenging a Ministerial Decree that effectively terminated their commissionership only halfway through the tenure at the State Administrative Court of Central Jakarta. The object of the administrative lawsuit is the Decree of the Minister of Laws and Human Rights no. M.H.H-02.KI.01.04.01 of 2022, which appointed new commissioners of the LMKNs for 2022-2025, while the plaintiffs are three of the previous ten commissioners for the 2019-2024 and thus were replaced by the new appointees.
LMK, which stands for Lembaga Manajemen Kolektif (Collective Management Organization/CMO), is regulated under Law no. 28 of 2014 concerning Copyright (2014 Copyright Law) to serve the function of representing authors and copyright owners alike in collecting royalties in exchange of the license for using their works. While LMKs are aimed at serving the interests of copyright owners regardless of the type of works, musical works receives particular attention. For instance, an LMK for songs or musical composition may only be established if it is entrusted to represent at least 200 songwriters; whereas the representation threshold for related rights as well as other types of copyrighted work is only fifty.
The 2014 Copyright Law also mandates for the establishment of two national level LMKs, named LMKN (Lembaga Manajemen Kolektif Nasional/National Collective Management Organization), that shall bear the role of coordinator as well as aggregator for private LMKs, one for those representing music copyright owners, and the other for related rights owners. Both LMKNs are treated as government assistance institutions, albeit independent of state’s budget. There shall be no more than five commissioners in each, consisting of government representative, representation of copyright/related right owners, academics, and/or experts in copyright laws.
In 2002, the Minister of Laws and Human Rights issued a Ministerial Regulation 09/2022 for implementing an earlier Government Regulation no. 56 of 2021 concerning Royalty Management for Songs and/or Music Copyrights. The Ministerial Regulation amended – among others –composition of both LMKNs, as well as the rules and procedures on how commissioners are selected and appointed. Under the new regulation the LMKN shall consist of one representative of the government, three representatives of copyright/related rights LMKs, and one representatives of copyright/related rights owners. Also under the new regulation, commissioners’ appointment is no longer based upon open selection process. Instead, government representatives are appointed directly by the Minister, while representatives of the LMKs and the rights owners were done internally by the respective stakeholders.
It was pursuant to the Ministerial Regulation 09/2022 that the Minister issued the disputed Decree to install new commissioners and effectively terminated the term of the previous ones. The State Administrative Court however sided with the plaintiffs, as in the judgment dated March 13, 2023, the panel of judges allowed the plaintiffs’ motion and ordered the Minister of Laws and Human Rights to revoke the disputed Decree.
The final outcome of this matter has yet to be known, since the Minister as the respondent in this case still had the chance to appeal to the State Administrative High Court, with the possibility to the last appeal at the Supreme Court.