Legal counsel Janteri (left) at the ruling hearing for the judicial review of Law No. 28 of 2014 on Copyright, Thursday (2/29/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) has ruled to expand the prohibition against the sale, broadcast, and/or reproduction of goods resulting from copyright infringement in Articles 10 and 114 of Law No. 28 of 2014 on Copyright. The expansion is by prohibiting user-generated content (UGC) digital service platforms from allowing the sale, broadcast, and/or reproduction of goods resulting from infringement of copyright and/or relevant rights at the places of commerce and/or digital services that they manage.

This expansion is contained in Decision No. 84/PUU-XXI/2023, in which the Court granted part of the petition by PT Aquarius Pustaka Musik, PT Aquarius Musikindo, and Melly Goeslaw. The ruling was delivered on Thursday, February 29, 2024 in the plenary courtroom.

“[The Court] grants the Petitioners’ petition in part; declare Article 10 of No. 28 of 2014 on Copyright, which reads, ‘Managers of business premises shall be prohibited from allowing the sale and/or reproduction of goods resulting from infringements of Copyrights and/or Relevant Rights in the location under their management’ unconstitutional and not legally binding if not interpreted as ‘Managers of business premises and/or Digital Service Platforms based on User-Generated Content (UGC) shall be prohibited from allowing the sale and/or reproduction of goods resulting from infringements of Copyrights and/or Relevant Rights in the location under their management,’” said Chief Justice Suhartoyo delivering the verdict.

In its legal considerations, delivered by Constitutional Justice Arief Hidayat, in order to protect creators, copyright holders, and owners of relevant rights from becoming victims of copyright infringement, the Court emphasizes that strict and clear provisions are needed. That way, managers of the UGC-based digital service platforms can be responsible for copyright-infringing contents by not allowing the sale, broadcast, and/or reproduction of goods resulting from copyright infringement and/or relevant rights in the place and/or digital services they manage without the permission of the creator, copyright holder, or owner of the relevant rights.

In the current era of digital technology, Justice Arief said, UGC-based digital platforms can detect copyright infringement with the help of technology. The Court observed that the purpose of the enactment of the Copyright Law is none other than to provide protection and guarantee of legal certainty for creators, copyright holders, and owners of relevant rights in the midst of the rapidly advancing science and technology.

Therefore, he explained, Article 10 of the Copyright Law needs to be emphasized and expanded to be able to reach the governance and provision of security technology for each UGC-based digital service platforms. This is in order to prevent copyright infringement in Indonesia, which is done by requiring managers of UGC-based digital platforms to ensure that the contents they have do not violate statutory laws and regulations. In other words, any content containing copyrighted work must obtain permission of the creator, copyright holder, and/or owner of relevant rights so that they feel appreciated for their creations and their economic rights are ensured.

“Therefore, for the sake of fair legal certainty, it is necessary to emphasize that the prohibition in Article 10 of Law No. 28 of 2014 also includes places of commerce and/or UGC-based digital service platforms. Thus, according to the Court, the Petitioners’ argument that Article 10 of Law No. 28 of 2014 has created fair legal uncertainty is legally grounded, and Article 10 of Law No. 28 of 2014 must be interpreted conditionally as will be fully set out in the a quo verdict,” Justice Arief read.

The Court also asserts that Article 114 of the Copyright Law is a secondary norm attached to the primary norm, i.e. Article 10. The Court asserts that with the new prohibition as stated in Article 10 of the Copyright Law, as a juridical consequence, the application of Article 114 must be adjusted to the new interpretation. That is, law enforcement officers must apply Article 114 by referring to Article 10, which cannot be separated from the re-interpretation of Article 10, which has a broader scope than before.

In terms of the criminal provisions in Article 114 of the Copyright Law, the legal considerations of the Constitutional Court Decision No. 46/PUU-XIV/2016 apply mutatis mutandis on the legal considerations of the a quo decision. However, it is important for the Court to emphasize that, because the application of Article 114 of the Copyright Law cannot be separated from Article 10 that has been re-interpreted by the Court in the a quo decision, in enforcing Article 114, law enforcement officers is bound by Article 10 that has been re-interpreted by the Court.

“Therefore, although the a quo decision has binding legal force since it is pronounced, it is important for the legislatures to immediately adjust Article 114 of Law No. 28 of 2014 with the new interpretation of Article 10 of Law No. 28 of 2014. Thus, the a quo Petitioners’ argument has no basis in law,” Justice Arief stated.

Also read:

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Expert: Digital Platforms Must Detect Contents Copyright-Infringing Contents

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 had 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 believed the Copyright Law had not regulated such things so Articles 10 and 114 of the Copyright Law were the chief harbor of prohibition against any place of commerce allowing services or duplication of contents that infringe on copyrights. However, those articles had not accommodated current phenomena such as UCG-based social media.

As such, in the petitum, the Petitioners requested 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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