Legal counsel Ignatius Supriyadi (right) at the preliminary hearing of the judicial review of Law No. 28 of 2014 on Copyright, Monday (8/28/2023). Photo by Humas MK/Fauzan.
JAKARTA (MKRI) — PT Aquarius Pustaka Musik, PT Aquarius Musikindo, and singer Melly Goeslaw challenge provisions on the prohibition imposed on managers of places of commerce against allowing the sale and/or duplication of goods resulting from infringement of copyright and/or relevant rights at the places they manage in Articles 10 and 114 of Law No. 28 of 2014 on Copyright.
At the on-site preliminary hearing for case No. 84/PUU-XXI/2023 on Monday, August 28, 2023, legal counsel Ignatius Supriyadi conveyed the Petitioners’ petition. “This started with a concrete case in which social media platforms broadcast songs or master recordings belonging to the Petitioners without their permission. However, the Copyright Law has not regulated the accountability of digital service providers, especially ones that [have user-generated content or UGC],” he said before the panel chaired by Constitutional Justice Arief Hidayat.
He revealed that the Petitioners had sued one of platform providers over the prevalence of contents that violated the Petitioners’ copyright of their songs or masters, but it claimed that based on statutory regulations, platform providers are not liable for contents uploaded by users nor for taking down those contents upon objections by the copyright holders.
Supriyadi said the Copyright Law has not regulated such things so the Petitioners believe Articles 10 and 114 of the Copyright Law are the chief harbor of prohibition against any place of commerce allowing services or duplication of contents that infringe on copyrights. However, those articles have not accommodated current phenomena such as UCG-based social media.
“We see that there is a legal vacuum relating to this issue. Losses have resulted from the legal vacuum because the Petitioners cannot sue platform providers. After we filed a lawsuit, the judge held that it is the full responsibility of the UGC [uploaders]. Platform providers are not liable as long as it cannot be proven that there is a connection between the UGC uploader and their video and the platform provider. In such a context, we see that the a quo articles are too narrow thus unable to accommodate current developments,” Supriyadi stressed.
Therefore, the Petitioners believe there is constitutional impairment, especially relating to Article 28D paragraph (1) on the guarantee of fair legal certainty. The Petitioners also feel that their constitutional rights have been disregarded why enablers cannot be held accountable. The passiveness of UGC-based platform providers, who only wait for requests to take down contents, also reflect lack of justice.
“Therefore, their model must be changed to active and careful attitude to ensure that contents that infringe on copyrights are not allowed to exist in the platforms [the providers] manage,” Supriyadi said.
As such, in the petitum, the Petitioners request that the Court declare Articles 10 and 114 of the Copyright Law conditionally unconstitutional and not legally binding.
Constitutional Court Not a Positive Legislator
In response, Constitutional Justice Arief Hidayat emphasized that the Petitioners should not make the Court a positive legislator. They must elaborate the argument for requesting that the Court be one.
“Politically, it should receive the people’s approval. Scientifically, the law is always lagging behind the development of science and technology. Due to technological advancements, legal vacuums exist. Change through legislation takes time. In this case, the Court is expected to become a positive legislator. This can be a reason,” he said.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised that the Petitioners avoid the petition be declared ne bis in idem by using other touchstones. He also advised that they elaborate in the petitum how they would like the Court interpret the a quo articles.
Next, Constitutional Justice Wahiduddin Adams asked the Petitioners to clarify their constitutional impairment. “But in a longer elaboration. Currently, the elaboration of the norms used as touchstones—Article 1 paragraph (3) and Article 28D paragraph (1)—is very little when the case is the judicial review of a law against the Constitution. [The norms] must be reviewed against the touchstones so there must be sufficient elaboration,” he said.
The panel announced that the Petitioner had 14 workdays to revise the petition and submit it no later than Monday, September 11 to the Registrar’s Office.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
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 28, 2023 | 16:22 WIB 124