First Condition: According to Classification

Classification means categorization. Here, a work can be considered a creation if it belongs to a creation that is protected by copyright.

We can see the categories of creations that are protected through the definition of creation in Article 1 number 3 of the Copyright Law. Note that according to this article, a creation is "every work of creation in the fields of science, art, and literature". For this reason, in order to be considered a creation, an artist's work must belong to at least 1 of these 3 fields -- whether the work falls into an object in the field of science, the field of art, or the field of literature.

Through Article 40 of the Copyright Law, we can see a further classification of objects that are considered creations and receive copyright protection. This article stipulates that there are 19 objects that are classified as creations. Some of these are books and similar written works, songs and/or music whether with lyrics or purely instrumental, paintings or similar works of art, architectural works, translations, and computer programs.

There are several written objects that at first glance meet the criteria as protected creations. For example, speeches by government officials or holy books. However, the Copyright Law stipulates that these two objects are not protected creations. This is regulated in Article 42 of the Copyright Law. The same article also regulates several other objects that are not considered creations and receive copyright protection, namely the minutes of open meetings of state institutions, laws and regulations, state speeches, court decisions or judge's stipulations, and religious symbols.

Second Condition: Tangible

Tangible means having a real form that can be seen with the five senses of a normal human being. For this reason, a tangible creation is a creation whose existence can at least be seen, heard, or touched.

The emphasis on the 'tangible' nature is important based on the classic theory of copyright law which does not protect works that are only ideas. No matter how creative a creation is, it will not be protected as long as it does not have a real form.

Copyright protection for tangible creations is closely related to the concept of justice. According to Earl W. Kintner and Jack Lahr, in the book An Intellectual Property Law Primer, through its tangible nature, copyright protection creates justice by balancing the interests of the creator and the interests of the wider community. The interests of both parties lead to ideas.

The creator's interest is the right he has to gain reputation and economic benefits from his creation. The public interest is the right that the public has to freely use every free resource that is in all corners of nature (free resources), one of which is the idea.

A creation is an idea that is realized by the creator based on the results of his thoughts and creativity so that it becomes something unique and provides certain benefits. Everyone can have ideas, but not everyone can become a creator who is able to form creations. For this reason, copyright applies to creators who are able to realize these ideas. Here, the interests of the creator are prioritized.

It's just that, the creator is burdened with the responsibility of proving that he has succeeded in processing the idea into something unique based on the results of his thoughts and creativity. If he is unable to prove the manifestation of the idea, he is not considered a creator and his idea is not considered a creation. After all, ideas belong to everyone. Here, the interests of the community are prioritized.

The 'tangible' nature of a creation is also important as a corrective step for the creation itself. Everyone can assess whether the creation is indeed worthy of copyright protection; at a minimum, the creation has met the classification stipulated in Article 40 of the Copyright Law.

The basic copyright protection for tangible creations is initiated by the provisions in Article 2(2) of the Bern Convention which states,"It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form".

The provisions of the Bern Convention are adopted by the Copyright Law through several provisions. First, we can see it in the definition of creation according to Article 1 number 3 of the Copyright Law. In this definition, it is stated that a creation is any work of authorship expressed in a tangible form. This is reinforced in the definition of copyright according to Article 1 number 1 and the requirements for duplication of creations in Article 40 paragraph (3) of the Copyright Law.

The most explicit provision regarding the 'tangible' nature of creations is regulated in Article 41 letter a of the Copyright Law. In a contrario, this provision states that works that do not receive copyright protection are works that have not been realized in a tangible form.

Unfortunately, the Copyright Law does not regulate the parameters for determining the form of a creation. The Copyright Law does not determine further indicators of a creation that is considered to have a form. Is the form of the creation seen from the percentage of its formation? Or is it possible that the form of a creation is fulfilled with indicators other than the magnitude in percentage?

Third Condition: Original

Original means authentic. An original creation is a creation that is authentic, has never existed before, and does not imitate creations formed by others.

The original nature of a creation shows the character of the creator who is unique and skilled in processing his talent to produce creations.

In the Copyright Law, the original requirement is regulated implicitly. Different from the previous 2 conditions which are regulated explicitly. This requirement is contained in the definition of creation regulated through Article 1 number 3 of the Copyright Law.

In that article, the definition of creation contains the phrase " ... which is produced by inspiration, ability, thought, imagination, agility, skill, or expertise ... ". This phrase is the basis for regulating the requirement of an original creation. Collectively, we will refer to this phrase as "creativity".

Why is "creativity" related to the originality of a creation? Because creativity becomes the expression of the creator, along with his ability and judgment to produce creations. A creative creator will produce creations that are equally creative. As a result, creativity becomes an indicator that a creation is original and able to receive copyright protection.

The original nature of a creation is not related to the idea that underlies the formation of the creation. As a consequence, the creation must first have a form so that its level of originality can be assessed later.

It's just that there is no standard for determining the level of originality of a creation, even in the Copyright Law. The reason for the absence of this standard is not clear. Is it because the classification of creations is so complex that it cannot be reached by originality standards that tend to be fixed?

If so, the Author assumes that the fixed nature of originality standards is not a reason to measure the authenticity of a creation that is able to receive copyright protection. We can still determine the original nature of a creation with a variety of methods.

For example, we can determine the originality of a creation by determining certain elements that show the uniqueness of the creation. A novel has a special narrative, as does a song that has lyrics or certain melodic dynamics, as well as a painting that has its own color spectrum.

The author assumes that, especially in the Copyright Law, the absence of originality standards is due to the responsibility of the creator. The authenticity of a creation does not depend on its classification, but on who created it. For this reason, the absence of standards actually gives creators the freedom to subjectively determine the original elements of their creations that receive copyright protection.

Through his book entitled Copyright Law, Rahmi Jened initiated the measurement of the originality of a creation through a fairly simple method, namely the comparison method.

In the comparison method, there is an attempt to compare more than 1 creation that has the same classification. For example, a song is compared to another song to assess whether both are original. According to Rahmi Jened, if there is even a slight difference between the two, the songs are each considered original and receive copyright protection.

The challenge of applying the originality standard is the creation that can be used as a benchmark for comparison. Therefore, it is difficult to measure the originality of a creation if the creation is new and does not have a pioneer that precedes it.