Professor of Padjajaran University Ahmad M. Ramli testified for the Government at a judicial review hearing of the Copyright Law, Tuesday (1/30/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Digital platforms have a responsibility to detect contents that infringe on copyrights, said cyberlaw and intellectual property professor of Padjajaran University Ahmad M. Ramli, who were presented by the Government as an expert at a judicial review hearing of Law No. 28 of 2014 on Copyright. The ninth hearing for case No. 84/PUU-XXI/2023 took place in the Constitutional Court’s (MK) plenary courtroom on Tuesday, January 30, 2024.

Ramli explained that digital platforms are able to detect such contents with technology and artificial intelligence (AI). In order to protect content creators, they should implement content management tool (CMT) and content ID.

“Given that AI technology and algorithms have developed so rapidly, digital platforms have an obligation to create an early detection system for copyright-infringing contents,” he said before the hearing chaired by Chief Justice Suhartoyo.

He believes it would be in line with the modification of strict liability, where the responsibility and burden of proof falls on the owner of technology, not on the victims. Platform managers are the owners of the technology. This is different from the conservative principle of liability based on fault, which is applied in countries that are developed in terms of copyright, in which violations by digital platforms or the delay of takedowns can result in copyright infringement lawsuits.

Shift of Business Space

As an academic in cyberlaw and intellectual property, Ramli believes that in principle, Article 10 in conjunction with Article 114 of the Copyright Law can be interpreted extensively to include not only physical space, but also virtual space. This is fair, considering that there has been a transformation of the digital content business model and a very significant shift from physical space to digital space.

“Thus, based on this method of interpretation, Article 10 of the Copyright Law, which reads ‘Managers of business premises shall be prohibited from allowing the sale and/or reproduction of goods resulted from Copyrights and/or Related Rights infringements in the location under their management,’ can be interpreted to include both physical space (physical commerce) and cyberspace (cyberspace commerce), thus, digital platforms can be identified with the phrase ‘business premises’ in Article 10 of the Copyright Law,” he argued.

Criminal Sanctions for Violations

Ramli said the Copyright Law classifies different types of criminal sanctions for perpetrators of the acts of piracy, unlawful reproduction, et cetera. Meanwhile, digital platforms should be sanctioned with Article 114 of the Copyright Law, because their position is limited to landlord liability and not other forms of violations. So, it is enough to use Article 114 and no new types of criminal sanctions are needed.

“Best practices also show that the approach is more civil and administrative than criminal. It is currently realized that the law is always lagging behind technology,” he revealed. 

Ramli said that overcoming this is not easy, because Indonesia adheres to written law. “To overcome this, I am currently developing a transformative legal theory, one of which is the application of extensive interpretation and landmark decisions to overcome legal and technological gaps and the application of the lex informatica,” he said.

He explained that landmark decisions based on lex informatica is a judge’s decision that applies a significant new legal principle or concept related to digital transformation, or something else that substantially changes the interpretation of the existing law. In the context of transformative legal theory, the law consists of principles in which there are also the lex informatica principle, norms that are not free from non-legal factors, institutions consisting of lawmakers, law enforcers, and regulators, as well as the process of forming, enforcing, and implementing the law.

Extensive Interpretation

Responding to the expert testimony, Deputy Chief Justice Saldi Isra asked about the need for an extensive interpretation of Article 10 of the Copyright Law.

“I would like to ask, is the Petitioners’ petition requesting that the Court declare Article 10 of Law No. 28 of 2014 on Copyright unconstitutional and not legally binding as long as it is not interpreted as ‘Managers of business premises and/or user generated content (UGC)-based digital service platforms shall be prohibited from allowing the sale and/or reproduction of goods resulted from Copyrights and/or Related Rights infringements in the location and/or digital service under their management’ among the extensive interpretation that Prof. Ramli is referring to?” asked Justice Saldi.

Ramli replied that if the Court wanted to declare Article 10 of the Copyright Law conditional constitutional while providing additional interpretation, of course that would be within its authority. “And that, in our opinion, will create better legal certainty in the field when judges deal with other cases,” he replied.

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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 as 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  : 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.

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