Ahmad M. Ramli and OK Saidin as experts for the Relevant Party taking oath virtually to testify at the judicial review hearing of Law No. 28 of 2014 on Copyright, Monday (8/8/2022). Photo by Humas MK/Ifa.
Monday, August 8, 2022 | 18:48 WIB
JAKARTA—The Constitutional Court (MK) held the eleventh judicial review hearing of Law No. 28 of 2014 on Copyright on Monday, August 8, 2022 in the plenary courtroom. The case No. 63/PUU-XIX/2021 was filed by PT Musica Studios.
The hearing had been scheduled to hear two experts for Indra Lesmana and Ikang Fawzi (Relevant Parties), Ahmad M. Ramli and OK Saidin. Ahmad M. Ramli said at the hearing virtually that copyright is intangible and belongs to its creator’s creativity exclusively. For song or book specifically, Ahmad said, copyright is not intangible but is owned exclusively by the creator and can be used simultaneously by many.
Therefore, he added, it is peculiar for a creator who produces a creation (in collaboration with others) to record a song or publish a book and then not be able to do it again due to an indefinite outright buyout agreement. Ahmad believed the Copyright Law in principle recognizes and protects not only the rights of creators, but also the rights of relevant parties such as producers, musicians, singers, and broadcasters, especially phonogram producers, whose rights are protected up to 50 years.
“In other words, if a producer is involved in an outright buyout agreement, they will still have economic rights for a total of 50 years. Although the copyright (economic rights) has reverted back to the creator, the owner still has economic rights up to a total of 50 years under the Copyright Law,” he explained.
Rights of Outright Buyer Protected
Ahmad also asserted that the Copyright Law has wisely respected the absolute rights of the parties who have concluded the outright buyout agreement. For 25 years, no party, including the creator, may produce it or cooperate with other parties in producing the copyrighted object. So, for 25 years, the outright buyer’s right is protected in that other competitors are restricted from using the same object.
However, after 25 years, Ahmad added, the object must be returned to the creator so that they have the right to the work’s royalties and economic rights. After 25 years, it can be the best moment for the creator and producer to renegotiate in commercializing the song and/or book. This is relevant, especially in the era of digital transformation, that those who provide ‘royalties’ and economic rights are not limited to producers or publishers anymore. Ahmad illustrated that currently, for example, the potential income from digital platforms is much more significant than from sales of CDs or DVDs, so the revenue sources are very diverse.
“If there is a mutual constructive cooperation after 25 years, Indonesian songs will be more and more popular in digital platforms. So, after renegotiation, producers, singers, and creators are expected to get revenue from this digital commercialization, which may be of higher quality after remastering and subsequent digital processing. This will also benefit the public, so that it will be easier to enjoy their favorite songs without being hindered by copyright infringement. So, we have to encourage the public to respect these copyright actors, among others by directing them to only access songs on official channels owned by the creators or those who are entitled to it,” Ahmad explained.
Characteristics of Copyright
Ahmad then explained copyright time limit. Copyright is limited by the period of protection, which parallels the creator’s economic rights. Based on the Copyright Law and various post-term international practices, the object of copyright will become the public domain so that it is free to be used by anyone.
The next characteristic is moral rights, which is regulated in Articles 5 to 7 of the Copyright Law. In short, moral rights are rights that eternally belong to the creator and cannot be transferred as long as the creator is still alive. However, in practice these rights can be transferred by will or other causes after the creator dies.
“Therefore, any agreement that absolutely prohibits the creator from obtaining their economic rights indefinitely is contrary to the principle of justice and intellectual property, which is based on a period of time. This is the essence of the Copyright Law, which limits outright buyout sale to 25 years,” said Ahmad virtually.
Reversionary Right
Ahmad believed that the reversionary right is in accordance with the constitutional mandate, considering that the Copyright Law was constructed to protect the people’s creativity. He questioned the fate of the nation’s creators in producing quality copyrighted works, especially when their economic rights were not protected. He believed the creator’s position is weak, including in terms of economic value, even though the object of copyright is eternal because it can continue on digital platforms, even re-released and commercialized. For this reason, the state is expected to exercise control to not let great works of the people stagnate due to an outright buyout agreement.
“Many songs were restricted by outright buyout agreements that make creators unable to do anything about the songs. Therefore, it is time for mutual collaboration between creators and related rights to welcome the revival of future digital music based on general reversionary rights principles that have been practiced in various countries,” Ahmad explained.
Intangible Copyright
OK Saidin said that based on Article 499 of the Civil Code, it can be ascertained that copyright is an object. Although the Civil Code does not mention copyright in its articles, in essence copyright is an immaterial property that can be controlled as property rights. Citing Prof. Mahadi, Saidin said the rights to ideas are objects, later become works in science that are protected as copyright.
Science, art, and literature are protected as copyright, Saidin said. The Burgerlijk Wetboek or the Dutch Civil Code, he added, had provisions on intangible objects such as securities, but intellectual property rights have not yet been regulated in the Civil Code. Thus, he asserted, the Burgerlijk Wetboek was an unfinished codification of civil law.
“It was only 65 years after the enactment of the Civil Code, Auteurswet 1912 was promulgated in Staatblad No. 600, September 23, 1912, which is also the lex specialis of the Civil Code. Although it is a lex specialis of the Civil Code, copyright along with patents and trademark rights was categorized by Prof. Sri Soedewi as rights within the scope of zaak as stated in Article 499 of the Civil Code. The assertion ‘every right and every item that can be an object or can be controlled with proprietary rights’ is sufficient reason to categorize patents, trademarks, and copyrights as intangible objects (regten),” Saidin explained.
Before concluding the hearing, Chief Justice Anwar Usman informed the litigants that the hearing would commence on Tuesday, August 30 to hear the testimony of a witness for the Relevant Parties Indra Lesmana and Ikang Fawzi, as well as an expert for Piyu Padi. For this reason, information of the experts who would submit oral testimonies were to be submitted to the Registrar’s Office two days before the hearing.
Also read:
PT Musica Studios Questions Duration of Economic Rights in Copyright Law
PT Musica Studios Reduces Copyright Law Articles to Review
House: Creator Should Have Received Great Economic Benefits
Piyu PADI: Provision on Copyright Duration Protects Songwriters
Copyright in the Eye of Musicians
Marcell Siahaan: Copyright Law Protects Creators and Performers
Flat Fee Agreements in the Eyes of Legal Expert and Music Industry Professionals
Expert Unprepared, Govt Requests Hearing on Copyright Law Delayed
Moral Rights Belong to Creator Indefinitely
Expert’s Testimony Delayed, Hearing on Copyright Law Postponed
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 8/9/2022 15:02 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.
Monday, August 08, 2022 | 18:48 WIB 486