On February 29, 2024, the Constitutional Court of the Republic of Indonesia (MKRI) decided case Number 84/PUU-XXI/2023 concerning Material Review of Law Number 28 of 2014 concerning Copyright (Copyright Law) and declared Article 10 of the Copyright Law to be contrary to the 1945 State Constitution of the Republic of Indonesia (Constitution of Indonesia). How is this possible?
This case began when PT Aquarius Pustaka Musik, PT Aquarius Musikindo, and songwriter Melly Goeslaw (hereinafter referred to as the Petitioner) discovered that songs created and/or owned Copyright were being used by a User Generated Content (UGC)-based digital service platform. In early 2020, the Petitioner even filed a civil lawsuit against Bigo Technology Ltd. as the digital service platform ‘Likee’ manager to the Central Jakarta District Court’s Commercial Court for using songs whose Copyright is under his auspices without permission. Unfortunately, the panel of judges rejected the lawsuit because the videos shown were UCG-based, i.e., originated, created, and uploaded by application users, not by Bigo. Thus, Bigo cannot be held responsible.
The Indonesian Copyright Law Does Not Yet Regulate UGC
The rejected lawsuit to Bigo and Likee could occur because there is a vacuum in the Copyright law used for UGC-based platforms. Hence, the platform manager ignores and deliberately hides behind the Circular Letter of the Ministry of Communications and Informatics Number 5 of 2016, Chapter V-C Provisions Number 2(b), which states that the UGC Platform is not responsible for goods and/or services containing content that violates Intellectual Property Rights if it can be proven that there was an error and/or negligence on the part of the merchant or Platform user.
In fact, in Article 28-C and 28-D paragraph (1) of the Constitution of Indonesia, the state guarantees its citizens to benefit from science and technology and the arts to improve the quality of life and for the welfare of humanity, as well as to obtain fair legal certainty. Thus, the Human Rights of the Petitioners must be protected, promoted, upheld, and fulfilled by the State, in this case, the government as mandated in Article 28-I paragraph (4) which explicitly states that “Protection, promotion, enforcement and fulfillment of rights Human rights are the responsibility of the state, especially the government.”
One of the methods that the state must take in protecting and upholding the fundamental rights of the Petitioners is by establishing laws and regulations that can substantively and procedurally guarantee and ensure the implementation of these rights by the instructions of Article 28-I paragraph (5) the Constitution of Indonesia. Therefore, on the one hand, the State must create a legal norm or rule with a precise, firm formulation, without multiple interpretations, and includes or encompasses matters aimed at realizing these fundamental rights. On the other hand, the Petitioners are entitled to the certainty of the quo regulations. This is inevitable for its continuity in a rule-of-law state as required in Article 1 paragraph (3) of the Constitution of Indonesia, which states, “The state of Indonesia is a state of law.”
As stated in Indonesian Copyright Law:
Article 10
Managers of business premises are prohibited from allowing the sale and/or reproduction of goods resulted from Copyrights and/or Related Rights infringements in the location under their management.
Article 114
Every Person managing business premises in all its forms who deliberately and knowingly allows the sale and/or duplication of goods resulting from infringement of Copyright and/or Related Rights in the premises that they manage as referred to in Article 10 shall be sentenced with a maximum fine of Rp100,000,000.00 (one hundred million rupiahs).
Because Articles 10 and 114 of the Copyright Law are deemed not to include protection for UGC and the state is obliged to provide legal certainty, the Petitioner also submitted a Material Review of the Copyright Law to the Constitutional Court on July 30, 2023, based on the Petitioner’s Petition Submission Deed Number 83/PUU/PAN.MK/AP3/07/2023 was recorded in the Constitutional Case Registration Book on August 3, 2023, with Number 84/PUUXXI/2023, corrected and accepted by the Registrar of the Court on September 8, 2023.
Final Verdict in Favor of the Creator
Until then, the Constitutional Court’s decision stated that it had granted the Petitioners’ petition in its entirety and stated that Article 10 of the Copyright Law was contrary to the Constitution of Indonesia and did not have conditionally binding legal force as long as it was not interpreted as “Manager of trading places and/or Digital Service Platforms based on User Generated Content (UGC) is prohibited from allowing the sale, display and/or duplication of goods resulting from violations of Copyright and/or Related Rights on trading venues and/or digital services that it manages.”
In particular, the Constitutional Court stated that the Petitioners’ human rights, as outlined in the Constitution of Indonesia, were impaired due to the enactment of Article 10 and Article 114 of the Copyright Law, considering that the content of the two articles being reviewed did not or did not protect fair legal certainty, because the content was inadequate and too narrow so that it cannot reach/keep up with new phenomena that have emerged as a logical consequence of technological growth and development, where one of the consequences of technological progress, especially in the information sector, has been the violation of the constitutional rights of the Petitioners. Still, the perpetrators will easily avoid legal responsibility because the formulation of the article cannot be used as a basis for prosecuting perpetrators who violate the law.
Furthermore, the Constitutional Court stated that the material content of Article 10 and Article 114 of the Copyright Law is normatively very limited and narrow because it only emphasizes the Management of Trading Places, which are a venue for selling and/or duplicating goods resulting from violations of Copyright and/or Related Rights, despite their speed and sophistication. Information technology has created an extensive space for interaction or mass communication (between people or society) through the provision of digital service platforms, namely in the form of sharing-app, short-video creation app, video hosting services, and/or similar services which are collectively hereinafter referred to as a Digital Service Platform, where the Digital Service Platform is a forum that is deliberately created to be a forum for users to create their own content, known as User Generated Content (UGC) in the form of video images and/or sounds that can be uploaded, displayed on the Digital Service Platform, then shared on social media, and even Several types of applications allow users to benefit from UGC.
In fact, UGC is full of violations of Copyright or Related Rights (duplicating, exploiting, distorting, synchronizing, adapting, publishing, or displaying without permission).
So, just like the Trading Place, the quo Digital Service Platform functions as a forum but is not a medium for buying and selling transactions like the Trading Place. The Digital Service Platform, in this case, should be likened to a digital Trading Place but based on UGC in the sense that the content or material being traded is uploaded by the seller (user/UGC). At the same time, the Manager only provides and manages the platform where virtual buying and selling transactions are carried out. The Digital Service Platform application does not fully involve business transactions but instead provides a means for users (UGC) to self-express by creating and uploading the videos they make. So, Digital Service Platform Managers CANNOT be grouped as Trading Place Managers.
This is where the starting point of the essential problem related to the constitutional rights of the Petitioners arises, where with the enactment of 12 Articles 10 and Article 114 of the Copyright Law, the Human Rights of the Petitioners are to obtain benefits from science and technology and the arts in the context of improving the quality of life based on Article 28C paragraph (1) of the 1945 Constitution and the protection of guarantees of fair legal certainty as emphasized in Article 28D paragraph (1) of the 1945 Constitution are not guaranteed and protected as mandated in Article 28I paragraphs (4) and (5) of the Constitution of Indonesia.
Several Platforms Have Implemented Protection
What happens on Likee cannot occur on other platforms such as Instagram or Facebook, which are under the management of META, or even YouTube, which Google manages. Because on each platform, if we want to add songs manually (with the options provided in the application), the choice of songs is very limited; only songs that have collaborated with that platform are provided. Even if our video uses a popular song before it is uploaded, the platform can detect it and then condition that the royalties be handed over to the Copyright Holder or be asked to be taken down if the use is not permitted.
With the Constitutional Court’s decision, other UGC-based digital service platforms, which are increasingly booming and whose content contains copyrighted works from a Creator, MUST HAVE PERMISSION from the Creator or relevant Copyright Holder. In this way, Copyright Holders or Related Rights Owners feel respected, and their economy is protected.
Should you have further questions about Copyright protection in Indonesia, please do not hesitate to email us at [email protected].
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