A material judicial review hearing of Law No. 28 of 2014 on Copyright to hear the House and the President, Thursday (10/19/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Indonesia has ensured the protection of copyrighted works, especially in the digital era, by ratifying international treaties related to copyright in the digital era such as the WIPO Copyrights Treaty (WCT) through Presidential Decree No. 19 of 1997, the WIPO Performances and Phonograms Treaty (WPPT) through Presidential Decree No. 24 of 2004, and the Beijing Treaty on Audio-Visual Performance through Presidential Decree No. 2 of 2020. These three treaties regulate economic rights and moral rights for creators and performers, including those related to music and songs in the digital (internet) era.
This was the Government’s statement read out by the Law and Human Rights Ministry’s advisor for the reinforcement of bureaucratic reform Asep Kurnia at a judicial review hearing of Law No. 28 of 2014 on Copyright on Thursday, October 18, 2023. The fourth hearing for case No. 84/PUU-XXI/2023 was to hear to the testimonies of the President and the House of Representatives (DPR).
Asep said that the Government has a strategic role in supporting national development and promoting public welfare as mandated by the 1945 Constitution. So, it is reasonable for the state to be involved in providing strict regulations with the principles of balance and justice as well as fully guaranteeing the protection of all kinds of intellectual works in the fields of science, art, and literature.
“The State considers it necessary to regulate the prohibition for trade center managers against allowing the sale of products that indicate intellectual property violations, especially copyright as stipulated in the provisions of Article 10 and Article 114 of the Copyright Law,” said Asep before Chief Justice Anwar Usman and the other constitutional justices.
Asep further explained that Article 10 of the Copyright Law is a provision that regulates 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. This norm is intended to realize the value of justice, especially for creators, as an effort to ensure the acquisition of economic rights of the creator and specifically gives responsibility to market manager as managers of places of commerce to oversee the sale, duplication, and transaction of products resulting from copyright infringement. Constitutionally, the arrangement is also based on the provisions of Article 1 paragraph (3) of the 1945 Constitution, which reads, “The State of Indonesia is a state based on the rule of law.”
“In this case, the provisions of Article 10 of the Copyright Law has provided more protection to creators or copyright holders compared to previous laws because it can be considered to provide a sense of justice for the creator for sharing any act of infringement of economic rights of a work as well as intended for market managers to appreciate the work of creators. Thus, the responsibility for the circulation of illegal copyrighted works does not only rest on the multipliers and sellers only. This also aligns with the provisions of Article 28C paragraph (1), Article 28D paragraph (1), and Article 28I paragraphs (4) and (5) of the 1945 Constitution,” explained Asep.
He also emphasized that the Copyright Law seeks to ensure the protection of the rights of creators, which must be more effective and efficient amid the current development of information technology. As a result, the Government through the Ministry of Law and Human Rights and the Ministry of Communication and Information Technology has issued joint Regulations No. 14 of 2015 and No. 26 of 2015 on the implementation of the closure of content and/or right of access for users of copyright infringement and/or relevant rights in electronic systems based on the provisions of Article 54 and Article 55 of the Copyright Law. These regulations provide a legal basis for copyright holders to apply to the relevant ministry or agency to close access to or remove content that infringes copyright or relevant rights on certain digital platforms or websites. This process is carried out with due consideration of the principles of fairness and balance of rights as well as the rights of users of information and technology.
“This regulation also includes procedures for reporting, handling complaints, and review for parties affected by the closure of content or access. The purpose of this regulation is to effectively protect copyright and related rights in the digital environment, minimize copyright infringement, and create a legal environment that respects creative rights in the era of information and communication technology,” Asep explained.
Meanwhile, the House, represented by of Commission XI member Wihadi Wiyanto, said that the digital platform as a form of information technology advancement is an online infrastructure based on software or devices that facilitate user interactions and transactions. Digital platforms allow all activities mentioned to be done in one place where informants, receivers, providers, and users of services, as well as sellers and buyers convene.
Due to its extensive nature, there are different types of digital platforms and these differences emerge along with their diverse functions and purposes. Until today, digital platforms continue to develop from static to interactive. The use of digital platforms in the form of user-generated content (UGC) is one example of the such development. The UGC digital platforms are currently in demand and at the same time with the development of copyright, most UGCs provide users with access to songs or videos that aim to attract a large audience, this encouraging users’ creativity in incorporating original copyrighted works into unique and interesting contents.
“In the context of Indonesian positive law, UGC-based digital platforms have been regulated by electronic system operators or PSEs in the scope of private UGC in Law No. 11 of 2008 in conjunction with Law No. 19 of 2016 concerning electronic information and transactions or EIT Law and the Regulation of the Minister of Communication and Information Technology No. 5 of 2020 on electronic system operators,” added Wihadi.
Unable to Sue Platform Providers, Aquarius Musikindo Challenges Copyright Law
Aquarius Musikindo Revises Legal Standing
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. The Petition was registered with Case No. 84/PUU-XXI/2023
The Petitioners revealed 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 (UGC).
The Petitioners 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.
The Petitioner believes the Copyright Law has not regulated such things so 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.
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.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
Translator : Tahlitha Laela/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.
Thursday, October 19, 2023 | 17:16 WIB 35