ASPEK PERLINDUNGAN HUKUM TERHADAP RAHASIA PERUSAHAAN

A. DASAR HUKUM

1. Law of the Republic of Indonesia No. 5 of 1999 regarding the Prohibition of

Monopolistic Practices and Unfair Competition (“Law No. 5/1999”);

2. Law of the Republic of Indonesia No. 30 of 2000 regarding Trade Secrets (“UU No.
30/2000”);

3. Regulation of the Minister of Law and Human Rights of the Republic of Indonesia
No. 8 Tahun 2016 regarding Terms and Procedures for Application to Registry an
Intellectual Property License Agreement (“PERMENKUMHAM No. 8/2016”).

B. LAW PROTECTION FOR TRADE SECRET BASED ON LAW NO. 5/1999

1. The existence of Company Secrets as a competitive tool began to be accommodated

in the provisions of Law No. 5/1999.

2. Regarding Article 21 Law No. 5/1999 state that Business actor shall be prohibited
to commit fraud in fixing production costs and other costs which thus become a part
of the price component of goods and/or services which could result in unhealthy
business competition.

In this case the business actors or a group of business actors carried out one or
several activities by rejecting and/or obstructing the competing business actors or
turning off the business of a competitor in the relevant market.

Fraud in determining production costs and other expenses is an infringement of

prevailing law and regulation to obtain the cost of production factors is lower than
it should be.

3. Furthermore, regarding Article 25 Law No. 5/1999 state that Business actors shall
be prohibited from using dominant position either directly or indirectly to:
a. determine the trade conditions with the purpose of preventing and/or
restraining consumers from obtaining competitive goods and/or services,
either in the point of view of price and/or quality; or
b. limit markets and technological development; or
c. obstruct another business actor who may become a competitor from entering
the relevant market.
4. Business actors shall have a dominant position if:
a. one business actor or a group of business actors control 50% (fifty percent)
or more of the market share of a certain type of goods or services; or
b. two or three business actors or a group of business actors control 75%
(seventy five percent) or more of the market share of a certain type of goods
or services.

C. LAW PROTECTION FOR TRADE SECRETS BASED ON LAW NO. 30/2000

1. Based on Article 3 Law No. 30/2000, Trade Secrets shall be given protection if fulfill
the following elements:
a. The Information is confidential, means that the information is only known
by a certain number of people or such information is not known by the public
in general. In this case, Company as the owner of the Trade Secret must be
able to prove that the information is only known by the Company and is not
general information.
b. The Information has economic value, means that the nature of the
information confidentiality of the information can be used to run commercial
activities or business or can improve economic benefits.
c. The confidentiality of information shall be deemed to be maintained
through effort as it should be, if the owner or the parties that control the
information have taken the necessary step and made an appropriate effort to
maintain confidentiality.

2. Furthermore, The example of the appropriate effort to maintain the confidentiality

of information as referred to the point above is the existence of standard procedures
and internal regulation which state of the person in charge of confidentiality and it
can also be seen from the employment agreement and/or business agreement with
the third party that contain clause of confidentiality. Without that appropriate effort
to maintain the confidentiality, Trade Secret will not obtain legal protection.

3. Regarding Article 13 jo Article 14 Law No. 30/2000, there are 2 (two) an

infringement on Trade Secrets, as follows:
a. an infringement on Trade Secrets takes place when a person deliberately
discloses the Trade Secrets or breaks the agreements or the obligation, either
written or not, to maintain the confidentiality of the relevant Trade Secrets.
b. a person shall be deemed to have committed an infringement on the Trade
Secrets of another party if obtains or possesses the Trade Secrets in a manner
that is contrary to the prevailing laws and regulations.

4. The owner/holder of Trade Secrets can avoid an infringement of Trade Secrets in 2

(two) ways, as follows:
a) Transfer of Rights of Trade Secrets

1. The rights to Trade Secrets can be transferred by:

a. inheritance;
b. donation;
c. testament;
d. written agreement; or
e. other means recognized by Law.

2. The transfer of rights of Trade Secrets shall be completed with the

appropriate documents that indicate the transfer of rights. In the
document does not disclose the Trade Secrets itself.

3. All forms of transfer of rights of Trade Secrets shall be recorded at the

DGIP with the payment of a fee as prescribed in the Law. In this case,
the only data that shall be recorded is the administrative nature of the
documents of the transfer of rights and not include the substance of the
Trade Secret agreement.

4. A transfer of right to Trade Secrets that is not recorded at DGIP shall not
have any legal consequences on any third party.

b) Grant a License

1. The owner of Trade Secrets shall be entitled to grant a license to a third

party based on Trade Secrets License Agreement to enjoy economic
benefits that is given in the certain period of protection, with the limited
rights and with certain condition.

2. Trade Secrets License Agreement shall not contain any provisions that
may directly or indirectly damage the Indonesian economy or any
provisions that can create unfair competition as regulated in prevailing
laws and regulations.

3. Based on the consideration that the nature of Trade Secrets is closed to

other party, the implementation of the Trade Secrets License Agreement
is carried out by sending or assisting directly an Expert who can maintain
the Trade Secrets.

4. Application for Registration of the Trade Secrets License Agreement shall

be submitted either with electronically application through the official
website of DGIP or non-electronically with the written application to the
Minister of Law and Human Rights.
5. Trade Secrets License Agreement shall be recorded at the DGIP with the
payment of a fee as prescribed in this Law. Trade Secrets License
Agreement that is not recorded at DGIP shall not have any legal
consequences on any third party.