The Legal Protection To The Author Form Free Internet Downloading

The Legal Protection To The Author Form Free Internet Downloading

By: Theresia Nolda Agnes Narwadan[1]

 

 

abstract

This paper aims to understand the factors inhibiting legal protection for song creators from free internet downloading and causes for difficulties in punishing downloading songs from the internet. Even though Indonesia has the copyright's act since 1912, but until today the infringement of song copyrights to be on increase. People can get all the songs they want to hear from internet downloading. The Indonesian Recording Industry Association (ASIRI) showed that the authors lost a lot of money because of free internet downloading. According to the Indonesian Recording Association-ASIRI's estimate that Indonesia was losing IDR 462.000.000.000,- a year because of free internet downloading.

The factors inhibiting legal protection, for song creators from free internet downloading include creators' lack of understanding on their own economic rights, and the lack of appreciation in free internet downloading. The dispute resolution faces difficulties in deciding the punishment, for free song downloading from the internet, since the police have no accurate understanding on the Act No 19/2002 regarding Copyrights. In addition, the creators must be more active to file their complaints, despite the fact that the infringement of song copyrights is categorized as ordinary offense in the Act No 19/2002, whenever they find out that their songs are offered for free download without their written permission.

Song creators must play a more active role as they are supposed to know better the originality of their creation.

 

 

PRELIMINARY

 

            The virtual world has indeed changed the habits of many people, namely people who in their lives are accustomed to using the internet. Shopping, sending personal letters, sending job applications, sending photos, searching for information, having long-distance conversations, not unlike making a phone call, making building designs by architects, face-to-face consultations (that is, each party appears on a computer screen with a camera), watching movies, listening to songs, and so on. Practically at this time almost all activities that can be done in the real world (real world), can be done in cyberspace (virtual world).

            Interesting data or creative works on websites on the internet can easily be downloaded, but people often don't realize that downloading data or creative works without the consent of the creator can be categorized as a copyright violation.

            It is permissible for someone to download data or creative works from the internet, but what are the conditions? Law Number 19 of 2002 concerning Copyright (hereinafter referred to as the Copyright Law) Article 12 paragraph (1) states that protected creations are creations in the fields of science, art and literature.[2] Copyright protection for a work can be granted if the copyrighted work has a tangible form. This means that the work is realized in a certain form that can be heard, read or seen.

            In other words, the idea of ​​sculpting, the idea of ​​writing, the idea of ​​singing, the idea of ​​drawing if it is not expressed in a certain form, for example in the form of a statue, paper, compact disks, sketches, and so on, then the idea is not protected by Copyright Law. Technological advances have brought significant changes in the way a work is announced. For example, a songwriter who wants his song to be known worldwide, the most efficient means is through the internet, because it is inexpensive and has a wide reach. The purpose of the announcement is simply to make the public aware, thereby attracting consumers to buy the song. Therefore, it is not surprising that websites (information providers on the internet) or sites on the internet continue to grow over time. The proliferation of websites on the internet, both for commercial and non-commercial purposes, has opened up opportunities for copyright infringement. Moreover, with the increasing sophistication of information technology, these opportunities are becoming even greater.

            A website generally consists of home page (display of information from an organization, company, or individual on world Wide Web internet, for various purposes, both commercial and non-commercial). World Wide Web (www) itself is a collection home page on the internet. These documents are interconnected, forming a single entity. If the website was created by a record company or a famous singer, then home page It will contain albums that have been marketed. Generally, it is equipped with songs, song lyrics, and cover art. compact disks, as well as video clips of songs that are already well known to the public.

            The Copyright Law also regulates certain limits that exempt someone from copyright infringement. Article 15 of the Copyright Law permits others to use someone's work, but with certain conditions. If it is used only for very limited reference purposes, with the source still cited and not for commercial purposes, there is no problem. For example, it can be used for educational purposes, research, writing scientific papers, writing critical reports reviewing a problem, and so on.[3].

            As long as permission has not been obtained from the creator, the work remains the property of the creator. The copyright period for songs or music, with or without lyrics, varies from country to country. In Indonesia, the copyright period is the creator's lifetime plus 50 years after their death, as stipulated in Article 29 of the Copyright Law.[4].  

            So, back to the making home page which contains songs on the internet, then it is not a person's right to make home page said, without obtaining the consent of the Creator. One cannot argue that home page The person concerned actually helps the Creator to promote the Creator's songs.

            Since 1986, the President of the Republic of Indonesia has established the Presidential Decree 34 Team, which was then led by the Minister of State Secretary. The Presidential Decree 34 Team aims to establish an Intellectual Property Rights system and resolve issues arising in the intellectual property rights sector using three components: legislation, administrative systems, and law enforcement.

            Regarding legislation, with the enactment of Law Number 19 of 2002 concerning Copyright, the Government has attempted to demonstrate its seriousness in resolving issues arising in the field of intellectual property rights, particularly copyright. On the other hand, although copyright protection in Indonesia has actually been implemented since 1912 with the issuance of Auteurswet, then Law Number 19 of 2002 has also been in effect for approximately 12 years, however in reality what we encounter every day, song piracy in Indonesia is actually increasing, especially song piracy with the mode of offering to download for free via the internet.[5]

 

 

 

PROBLEM

From the background that has been explained, the problem is formulated: What is the legal protection for copyright holders for songs that are downloaded for free on the internet?

 

 

 

 

DISCUSSION

            Before we discuss, it would be good if we briefly understand the basic concepts:

1.      Law: in Dutch, law is rechs means law or punishment, whereas in English, law is law. Rechs starting from the concept constitutional state which was born from a struggle against absolutism so that its nature was revolutionary, whereas law starting from the concept rule of law which developed evolutionarily. This is apparent from the content or criteria of each, that constitutional state based on the continental legal system called civil law and administrative characteristics, whereas rule of law based on the law called common law characteristic judicial.[6]  Currently, there is no single definition of law agreed upon by various experts, as it is very difficult to define law in a way that satisfies all parties. However, an attempt will be made to provide a definition of law that is acceptable to all parties. According to E. Utrecht, law is defined as a collection of regulations (commandments and prohibitions) that regulate the order of a society and therefore must be obeyed by that society.

2.      Copyright: the exclusive right of the creator or recipient of the rights to announce or reproduce his creation or grant permission to do so without reducing the restrictions according to applicable laws and regulations.[7]

3.      Creator: is a person or several people together who, through inspiration, give birth to a creation based on intellectual ability, imagination, dexterity, skill or expertise which is expressed in a unique and personal form.[8]

4.      Copyright holder: is the creator who owns the copyright, or the party who receives the right from the creator, or another party who receives further rights from the party who received the right.[9]

 

A.    Factors That Hinder Legal Protection for Creators of Songs Downloaded from the Internet

1.      When carrying out song buying and selling transactions, creators prefer verbal agreements rather than using written agreements.

Songwriters prefer verbal agreements, with receipts as proof of payment, over written agreements because they believe they're simpler. They don't need to read through reams of paper (contracts), and they often find it confusing to interpret the clauses contained within the contract.

            This demonstrates the songwriter's lack of understanding of their economic rights. Why? Because the receipt only states that Mr. Y received Rp xxx in payment for the song 'Z'. The receipt is dated, stamped, and signed.

            While the contract will not only include information that a sum of money of Rp xxx has been received from Mr. Y to pay for the song 'Z', but the contract will also contain details regarding everything that the parties concerned want. For example: the identity of the parties; song title; songwriter; form of reproduction of the song; type of music; the need to obtain permission from the copyright holder, if the producer intends to re-distribute the song created by the copyright holder into another album title such as a selection album or similar; in return for the permission granted by the copyright holder, the producer is obliged to make payment to the copyright holder, in one of the ways either by paying in full at the time this agreement is signed or by royalties; dispute resolution; and other things that are to be regulated in the contract.

            The advantage of using a contract for creators is that creators can know in detail about their rights and obligations, as well as the legal consequences if they do not fulfill their obligations, or if their rights are violated. This was also experienced by Mr. A, the creator of the song entitled God. His song entitled God was sold by Mr. flat pay (all at once paid off).

            In early 2013, Mr. A learned that his song, Tuhan, had been offered for free download by www.xxx.com. The offer to download this song as a mobile phone ringtone, is free of charge. www.xxx.com with the permission of the Producer who in 1973 had purchased the song God from Mr. A. Mr. A considered that the sale of the song God to producer A which he had done in 1973, was only for reproduction in cassette form only. Indeed, before selling the song God, Mr. A had often bought and sold songs with the producer. The habit that occurred during that time, Mr. A's songs that were sold to the producer with sufficient receipts as evidence, were only distributed in cassette form. So when Mr. A sold the song God, Mr. A also assumed that the song would only be distributed in cassette form.

            Initially, the song "Tuan A" (God) was distributed on cassette. As it developed, the producer wanted to create a compilation album. One of the songs on the compilation album would be "Tuan A." In early 2013, the producer granted permission to www.xxx.com

 to offer free downloads of God's songs as ringtones to interested internet users. The offer to download God's songs as ringtones for free was intended to attract internet users, leading them to purchase the compilation album distributed by the producer.

            Mr. A, as the copyright holder of the song "God," sent a letter of protest to the producer. Mr. A claimed he never gave the producer permission to offer free downloads of the song "God" online, or to allow anyone else to do so.

            Article 1457 of the Civil Code states that: “a sale and purchase is an agreement, by which one party binds himself to deliver an object, and the other party to pay the promised price.” Here the seller has the obligation to deliver the goods, and the buyer has the obligation to pay the price at the specified time.

            In the sale and purchase of the song entitled Tuhan, the producer has paid Rp 2.000.000,00 (two million rupiah), to Mr. A. Therefore, Mr. A is obliged to hand over the song Tuhan he created to the producer. However, the handover of the song Tuhan does not mean that the Producer then has the right to do anything with the song Tuhan economically. The custom in the 1970s was that the sale and purchase of songs was carried out verbally, with a receipt as proof of payment. In addition, in the 1970s, the existing custom of buying and selling songs was intended only for one album title. Compilation albums were not popular at that time.

            Although the sale and purchase of Mr. A's song was conducted verbally, the producer, as the buyer, should have respected the prevailing customs at the time. This also aligns with Article 1339 of the Civil Code, which states that an agreement is binding not only for matters expressly stated therein, but also for those required by propriety, custom, and law.

            A custom is an event that occurs repeatedly in a relationship of the same kind. Therefore, there must be a behavior in similar events, always carried out. Repeated events can sometimes create pressure that creates the awareness that if someone faces a similar situation, that's how they should act. Therefore, according to Article 1339 of the Civil Code, custom binds residents in the area where the custom applies, regardless of whether the residents concerned want it or not, even if they are unaware of the custom's existence.

            So when the Producer in early 2000 wanted to make a compilation album, and one of the songs in the compilation album was a song entitled Tuhan, then for promotional purposes, the Producer gave permission to another party to offer free downloads of the song Tuhan to internet users, then first the Producer had to ask permission from Mr. A as the Creator, as well as the copyright holder of the song entitled Tuhan.

            The producer must also seek prior permission from Mr. A if there are any copyright restrictions. These restrictions refer to what constitutes copyright infringement and what does not.

            The Copyright Law has determined the creations that are not protected by copyright. Regarding the results of open meetings of state institutions; legislation; state speeches or speeches by government officials; court decisions; decisions of arbitration bodies or decisions of other similar bodies, anyone can reproduce, announce or broadcast, without requiring permission from the creator or copyright holder, and such things are not considered copyright infringement. Furthermore, there is no copyright on works that have expired. The copyright period is valid for the life of the creator, plus fifty years after the creator's death. For works owned by two or more people, copyright is valid for the life of the creator who dies last, plus fifty years thereafter.

            Further restrictions on copyright use also stipulate that, in addition to the source being fully cited or listed, another requirement must be met, namely that it must not harm the creator's legitimate interests. A creator's legitimate interests are those based on a balance in enjoying the economic benefits of a creation.

            From the explanation above, it is clear that the song "God" is not included in the category of works not protected by copyright. Furthermore, the protection period for the song has not yet expired. Therefore, if a third party or producer wishes to offer free or paid downloads of the song "God," they must first request permission from Mr. A, the copyright holder.

            Third parties must also first request permission from Mr. A as the copyright holder, if it is related to the transfer of copyright. Article 3 paragraph (1) of the Copyright Law states that copyright is considered a movable object. Copyright can be transferred, licensed, or sold by the owner or copyright holder.

            Copyright holders have the exclusive right to reproduce their works. This depends largely on the type of material in the work. Copyright can be transferred or assigned, either in whole or in part, through inheritance, a will, a written agreement, or other reasons permitted by applicable laws and regulations.

            Within a certain period of time and for a specific purpose, a person can enjoy or use another person's property rights. This is done by entering into a licensing agreement between the licensor and the licensor. (licensor), with the licensee (licensee). On that basis, the licensee has the right to enjoy the economic benefits of another person's property rights, which the licensor has licensed to him.

            Copyright licensing is carried out with or based on a license agreement, which contains the copyright holder granting special rights to another person to enjoy the economic benefits of a copyrighted work for a certain period of time. Thus, a license agreement only serves as a permit or right to enjoy the economic benefits of a copyrighted work for a certain period of time, with certain conditions, throughout the territory of the Republic of Indonesia.

            The implementation of a copyright license is accompanied by the obligation to provide royalties to the copyright holder by the licensee, the amount of which is determined by agreement between both parties, guided by the agreement of professional organizations. The license agreement must be recorded at the Directorate General of Intellectual Property Rights, so that it can be valid for third parties. This means that registration of the license agreement at the Directorate General of Intellectual Property Rights is a must. A license agreement that has not been registered with the Directorate General of Intellectual Property Rights is not binding or has no legal consequences for third parties.

            Mr. A has never donated or licensed his song "God" to another party. Therefore, if the Producer wishes to offer free downloads of the song "God" to internet users, the Producer must first request permission from Mr. A, the creator and copyright holder of the song.

 

 

2.      Creators are reluctant to register their songs with the Copyright Directorate, because they believe that registering their creations does not guarantee that their songs will not be pirated again.

The function of registering a work in the declarative system emphasizes the presumption of being the creator of the registered right, until someone else can prove otherwise. In other words, even in the declarative system, even if the copyright is registered, the law only recognizes the person concerned as the owner, and legally, this must be proven again if someone else denies the right. As long as someone else cannot legally prove that it is their right, the registrant is considered the only person entitled to the registered work, and every third party must respect their right as an absolute right.

In the copyright registration system under Indonesian copyright law, it is stated that registration of works is carried out passively, meaning that all registration applications are accepted without much investigation into the applicant's rights, unless there is a clear copyright infringement. This passive attitude proves that Indonesian Copyright Law adheres to a declarative registration system.

This is also strengthened by Article 36 of the Copyright Law which states that, "registration of a creation in the general register of creations does not constitute validation of the content, meaning, intent or form of the creation registered."[10] Copyright registration does not substantively mean that the Directorate General of Intellectual Property Rights is responsible for the authenticity of the copyrighted work. This provision is crucial because a small portion of the copyrighted work may be the creator's creation, while the remainder may be copied from the work of others. In such circumstances, the Directorate General of Intellectual Property Rights does not include this as part of its responsibilities. The declarative registration system does not recognize substantive examination, namely the examination of the object or material of the creation to be registered. Furthermore, it can be understood that the function of copyright registration is intended to facilitate proof in the event of a copyright dispute.

Copyright registration itself is not actually required because even without registration, a creator's copyright is protected by law. However, unregistered creations will be more difficult to prove in the event of copyright infringement, compared to registered copyrights. This can be concluded from Article 5 paragraph (1) letter a of the Copyright Law, which states that unless proven otherwise, the person considered to be the creator is the person whose name is registered with the Copyright Directorate.[11]

From the general explanation above, it can be concluded that registration is not a requirement for the validity (recognition) of a copyright, but only to facilitate proof in the event of a dispute. This means that the person who registers a copyright for the first time does not necessarily mean that he is the legal owner, because if someone else can prove that it is his right, then the legal force of a work registration can be revoked. Therefore, the copyright holder can file for compensation, request confiscation, hand over all or part of the income obtained from copyright infringement, stop the activities of announcing, reproducing, distributing and selling works or goods that are the result of copyright infringement. The lawsuit can be filed through a commercial court.

The most important aspect of registration is that it is expected to provide some form of legal certainty. Registration of a work in the general register of works is carried out upon application from the creator or copyright holder. The procedures for copyright registration are regulated by the Regulation of the Minister of Justice of the Republic of Indonesia.

 

B.     The difficulty of criminally resolving disputes over songs downloaded for free on the internet

In the Copyright Law, Article 72 paragraph (1) states that: anyone who intentionally and without the right carries out an act as referred to in Article 2 paragraph (1) or Article 49 paragraph (1) and paragraph (2), shall be punished with imprisonment of at least 1 (one) month and/or a fine of at least Rp. 1.000.000,00 (one million rupiah), or imprisonment of at most 7 (seven) years and/or a fine of at most Rp. 5.000.000.000,00 (five billion rupiah).

While criminal penalties already exist, we still encounter websites offering free song downloads without first requesting permission from the songwriters. Should fines be increased, or should prison sentences be increased before perpetrators of song piracy can be deterred?

In social life there are always different interests between one person and another, so the purpose of law is to protect these interests, do not let any interest be ignored, so in safeguarding these interests a middle way must be sought, then a fair and wise compromise must be sought. When the law is no longer able to protect interests, and when the law is no longer able to provide a middle way from disputes that occur in society, there are only two possibilities that can be used as a solution, namely replacing the new law that is able to protect the interests of a dynamic society, or increasing the professionalism of law enforcement officers. 

 

REFERENCES

 

Book:

Anwar Chairul, Copyright Copyright Infringement and the Latest Indonesian Copyright Laws, Novindo Pustaka Mandiri, Jakarta, 1999;

            Damian Eddy, Copyright Law, Alumni, Bandung, 2002;

            Irawan Chandra, Indonesian Intellectual Property Rights Law Policy, Mandar Maju, Bandung, 2011;

            Lutviansori wise, Copyright and Protection of Folklore in Indonesia, Graha Ilmu, Yogyakarta, 2010;

            Santoso Agus, Moral Law & Justice: A Study of Legal Philosophy, Kencana, Jakarta, 2012;

            Sutedi Adrian, Intellectual Property Rights, Sinar Grafika, Jakarta, 2009.

Constitution:

Law Number 19 of 2002 concerning Copyright.