Agus Sardjono testifying as an expert for the Government at the judicial review hearing of Law No. 28 of 2014 on Copyright virtually, Tuesday (7/5/2022). Photo by Humas MK/Panji.
Tuesday, July 5, 2022 | 21:17 WIB
JAKARTA, Public Relations—The legal act of transferring copyright is impossible because it contains moral rights that are eternal and inherent in the creator. It can only occur because of the legal event of death, following the Copyright Law, which states that copyright can change, not be transferred, because of an heir, inheritance, and a will. However, the attribution to the creator remains indefinitely and belongs to the creator. Therefore, according to the Copyright Law, only economic rights can be transferred from copyright, while only the exercise of moral rights that can be transferred.
The statement was made by Agus Sardjono as an expert for the president/Government at a judicial review hearing of Law No. 28 of 2014 on Copyright on Tuesday, July 5, 2022. The hearing for case No. 63/PUU-XIX/2021, filed by PT Musica Studios, took place in the plenary courtroom of the Constitutional Court (MK) and was presided over by Chief Justice Anwar Usman and the other eight constitutional justices.
Agus further explained that Article 4 of the Copyright Law contains two rights: moral and economic. They are an inseparable unity. Although the Law has separate special chapters on moral and economic rights, the separation was meant only in regulation. He illustrated that when one intends to transform a written work into a cinematographic work, permission from the author of the written work must be obtained. A certain amount of payment must accompany this, meaning that there is an economic factor.
In the Copyright Law, Agus added, this transformation is referred to as adaptation. It is regulated in a chapter on economic rights. Such transformation is divided into two: transformation of form and of content of the work. The adaptation of a novel into a film constitutes the former, while the translation from Indonesian to English or vice versa constitutes the latter. Translation of written works is also stipulated in Article 9 paragraph (1) letter c of the Copyright Law. Meanwhile, in music, the transformation of content of a work can also occur through the transformation of the musical genre. In order to perform such a transformation, permission from the creator must be obtained because it relates to their reputation. The transformation can only be performed after the permission is obtained, followed by an economic reward in the form of royalties.
“So, moral and economic rights cannot simply be separated just because they are stipulated in different chapters [in Copyright Law]. Therefore, it is actually almost impossible to transfer copyright in the sense of selling copyright because it contains an inherent and eternal element in the creator, that is, moral rights,” explained the law professor of economic and technology law of the University of Indonesia.
Music Licensing
Aside from transformation, Agus added, there is licensing, which is an important element in copyright of music, especially relating economic rights and commercial use. Licensing agreements allow songs by songwriters to be enjoyed by the public. It includes licensing to the artist and producer to produce a record or phonogram. Artists—musicians and singers—get permission from the songwriter to arrange and sing a song that is then recorded into a phonogram.
The recording process, he said, could be funded by the creator or the producer who financed the production. If the production of a phonogram is financed by a record producer, the Copyright Law grants the producer related rights or neighboring rights to produce the phonogram. Meanwhile, the artists who play the music and sings the song is given performing rights of the phonogram.
“Thus, a phonogram contains three rights: the copyright of the songwriter, the performing rights of the performers or artists on the recording, and the producer’s rights on the related recording,” he said.
Reversionary Rights
Next, Agus explained reversionary rights, or the return of copyright to the creator within a certain period after the rights have been handed over to other parties. He said such rights was first mentioned in the Statute of Anne of 1709 and the US Copyright Act of 1976—Article 203 of which gives the author the right to reclaim the copyright that has been transferred or through a license, or termination of assignment, which in concept is the same or almost the same as reversionary rights.
The rationale for the termination is basically, Agus added, to give creators an opportunity to regain control over their works, thus producing benefits that are more proportional to the value of the work itself. Apart from the US, Canada also enforces provisions on reversionary rights albeit slightly differently because it is related to the creator’s death. The provisions are regulated in Article 14 paragraph (1) of the Canada Copyright Act of 1985. It was based on the idea that the creator’s heirs can still enjoy the results of the commercialization of the copyrighted work.
“The premise of the United States Congress is probably the same as that of the authors of the Indonesian Copyright Law, who also wanted to protect parties with a weaker position in the transfer from the creator to the phonogram producer. Whereas the provision on reversionary rights in Articles 18 and 30 of the Copyright Law is aimed at protecting the interests of those whose positions are weak in transactions between the creator and producer of the phonogram. And please note, this provision does not only apply in Indonesia through Articles 18 and 30, but also in other countries although with different narratives,” Agus explained.
Before concluding the hearing, Chief Justice Anwar Usman informed all parties that the next hearing would commence on Monday, July 25 at 11:00 WIB to hear the Relevant Party’s experts, Ikang Fawzi and Indra Lesmana.
Also read:
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Piyu PADI: Provision on Copyright Duration Protects Songwriters
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Flat Fee Agreements in the Eyes of Legal Expert and Music Industry Professionals
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The case No. 63/PUU-XIX/2021 was filed by PT Musica Studios, who argues that Article 18, Article 30, and Article 122 of the Copyright Law violate Article 28D paragraph (1), Article 28H paragraph (4), and Article 28I paragraph (2) of the 1945 Constitution.
Article 18 of the Copyright Law reads, “The Works of books, and/or all other written works, songs and/or music with or without text that are transferred in a flat fee agreement and/or indefinite transfers, are to be reverted to the Author when the agreement reaches a period of 25 (twenty-five) years.” Article 30 of the Copyright Law reads, “The economic rights to a Performer’s Work of songs and/or music that have been transferred and/or sold, return to the Performer after a period of 25 (twenty-five) years.”
The Petitioner argued that Article 18 of the Copyright Law had harmed their economic rights of works on which outright buyout agreement applies. The article stipulates a limit of copyright duration on a work, and the copyright shall be returned to the original copyright holder after 25 years. The Petitioner believes the provision is detrimental because they only have a status as a leaser and will have to return the right some time to the creator of the work.
They also argued that they lost economic rights due to the enactment of Article 122 of the Copyright Law, because by returning the copyright to the creator, they cannot receive royalties over another party’s exploitation of a phonogram of the work. Therefore, in the petitum, the Petitioner requested that the Court declare Articles 18, 30, and 122 of the a quo law unconstitutional and not legally binding.
Writer : Sri Pujianti
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/6/2022 09:43 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Tuesday, July 05, 2022 | 21:17 WIB 380