402. Indonesia welcomes the inclusion of this agenda item in the TRIPS Council and supports the discussion in the Council for TRIPS of the relationship between IP and Public Interest, especially with regard to the issue of public health and competition policy. As Members are all aware, the TRIPS Agreement sets minimum standards of IP protection, including the issue of competition related to public health. Members have the right to design their own policies in accordance with domestic needs and interests.
403. The legal basis to deal with monopolies and unfair competition Indonesia has Law No. 5 of 1999 concerning the prohibition of monopolistic practices and unfair business competition. It states that this is an unfair business competition and contains specific and comprehensive rules governing competition among business actors.
404. Article 3 states that the basic objective of Law No. 5 is to safeguard the public interest and improve the efficiency of the national economy in order to better the welfare of the public. Indonesia has an independent enforcement agency to enforce the law, i.e. the Commission for the Supervision of Business Competition, Komisi Pengawas Persaingan Usaha (KPPU). Related to intellectual property, Law No. 5 provides exemption from its scope concerning intellectual property rights, trade secrets and franchises.
405. The provision is not an absolute exemption from the existing prohibition. The exemption provision must be viewed in the context of the following:
intellectual property licence agreement is not automatically leading to monopolistic practices and unfair business;
monopolistic practices and unfair business arising from the implementation of intellectual property licence is a condition which can be prevented through competition law;
in order to apply the competition law to the implementation of intellectual property licence agreement, it must be proven that 1) the intellectual property licence agreement is consistent with the law and 2) that there are conditions indicating a monopolistic practice and unfair business.
406. Finally, Indonesia will take the opportunity to support South Africa, China and India as the proponents of this agenda item. Therefore we propose that this agenda item be maintained for the next meeting of the TRIPS Council, especially with regard to the session on IP and Public Interest, including the sharing of experiences regarding the utilisation of flexibilities of the TRIPS Agreement by Members.
