Legal Protection for the Copyright Holder of the SKJ88 Song whose Work was used without Permission for Commercial Purposes by PT. Elang Prima Retailindo
Edi Wahjuni1, Ayu Citra Santyaningtyas2, Enggita Anggraeni Okta3
1,2,3 Faculty of Law, University of Jember, East Java, Indonesia.
ABSTRACT: The goal of this study is to ascertain if PT. Elang Prima Retailindo’s unauthorized commercial use of the SKJ88 song gives the copyright holders legal protection. A normative legal research technique that takes a statutory and conceptual approach is used. According to the study findings, the goal of legal protection for the copyright holders of the SKJ88 song is to safeguard the authors and copyright holders whose work was utilized for commercial reasons by PT. Elang Prima Retailindo without their consent. The implementation of the UUHC is expected to provide clarity regarding the status of creations, so that creators and copyright holders no longer need to worry about the protection of their works. Legal protection in this case involves both internal and external protection. Article 80 Paragraph (1) of the Copyright Law governs internal protection for the copyright proprietor of the SKJ88 song, whose work was exploited for commercial reasons by PT. Elang Prima Retailindo without authorization. However, internal protection is not realized because there is no agreement between the two parties. External legal protection for the copyright holder of the SKJ88 song, whose work is used without permission for commercial purposes by PT. Elang Prima Retailindo, is regulated in Article 27 Paragraph (2) of the Copyright Law, Article 64 Paragraph (2), Article 96 Paragraph (1), Articles 112 to 120 of the Copyright Law, and Article 18 of Government Regulation Number 56 of 2021.
KEYWORDS: Intellectual Property Rights, Infringement, License Agreement, Royalties
INTRODUCTION
The quality of life in a country is greatly influenced by the development and legal protection of art, literature, science, and technological inventions. Various countries around the world, including Indonesia, are making various efforts to develop and protect these fields. One of the steps taken by Indonesia is to establish regulations regarding Intellectual Property Rights (IPR). IPR have rapidly evolved over time. The factual implementation of the IPR system in Indonesia is a significant responsibility considering Indonesia has been a member of the World Trade Organization (WTO) since 1995. The framework of intellectual property regulations is included as part of the WTO agenda, especially the accord pertaining to intellectual property rights and commerce. The pact on Trade-Related Aspects of Intellectual Property Rights, or TRIPs for short, is the name of this pact. (Rahmi Jenned Parinduri Nasution, 2013). Intellectual Property Rights (IPR) are an intangible concept, as they are the result of human creativity manifested in the form of certain creations or inventions. In general, IPR and copyright are the two primary subcategories of intellectual property rights. Works in the arts, sciences, and literature fall under the first category. In contrast, industrial property rights pertaining to design and technology fall under the second group. Written and spoken works, performances, music, artwork, movies, and more are all protected by copyright. Conversely, industrial property rights include the protection of plant varieties, integrated circuit layout designs, trade secrets, patents, and trademarks. (Iswi Hariyani et al., 2020).
The nature of IPR is a property right, which means the right to an object that originates from human intellectual work. The work produced is formulated as a form of intellectuality, so anything resulting from that thought can be considered as intellectual property (IP). In the context of IP, copyright is defined as a subject protected by law. Copyright is a special protection for works produced from intellectual creativity. (Bonaraja Purba et. al, 2023).
Regulations regarding copyright are adjusted according to the provisions in the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement. TRIPs recognizes that creations entitled to copyright protection are those that are expressions or embodiments of ideas in a work, and the work must be original. Law Number 28 of 2014 respecting Copyright, sometimes known as the Copyright Law, now governs copyright laws in Indonesia. Previously, Law Number 19 of 2002 concerning Copyright regulated copyright restrictions.
In Indonesia, using music for commercial reasons without the owner’s consent often results in copyright infringement. Songs are included as one of the works of art that are protected by copyright under Article 40, Paragraph 1 of the Copyright Law. The copyright holder should receive compensation for their work from those who use the song, whether for personal purposes such as purchasing a Compact Disc (CD), or from those who utilize the song for commercial purposes.
An example of a case that occurred is in Decision Number 35/Pdt.Sus-Hak Cipta/2021/PN.Jkt. Pst, which explains that PT. Elang Prima Retailindo, as the defendant, committed an unlawful act of copyright infringement. The defendant is a company that operates a home shopping business called O Shop, which sells a health device called the Bodimax running machine. The defendant used the song SKJ88 without prior permission from the copyright holder of the song SKJ88. The copyright holder of the song SKJ88 is Djanuar Ishak, who is the plaintiff. The defendant used the SKJ88 song for commercial purposes, specifically using the SKJ88 song for advertisements and promotions of the Bodimax running machine, which were broadcast on television and the internet through the defendant’s YouTube channel.
The plaintiff has never objected to the use of the SKJ88 song by users or anyone else for social activities, as this was the original purpose for which the SKJ88 song was created. However, the duplication and use carried out by the Defendant are for commercial purposes, namely creating advertisements for product sales promotion, which were done without the Plaintiff’s permission. This has caused immaterial losses to the Plaintiff as the copyright holder.
The Plaintiff has warned and reprimanded the Defendant to take responsibility for the rights violations committed by the Defendant, but the Defendant has shown bad faith and no intention to resolve the issue. Therefore, Djanuar Ishak brought the issue to court, resulting in Decision Number 35/Pdt.Sus-Hak Cipta/2021/PN. Jkt. Pst. Then, because the Defendant felt aggrieved by the first-instance decision, the Defendant filed a Cassation request, resulting in Decision Number 991 K/Pdt.Sus-HKI/2022.
Given the preceding context, the author is eager to talk about a new topic: how does the copyright owners of the SKJ88 song fare in terms of legal protection when PT. Elang Prima Retailindo uses their work for commercial reasons without permission?
MATERIALS AND METHODS
The normative juridical legal research approach is used in this study. According to (Dyah Ochtorina Susanti and A’an Efendi, 2014), normative juridical legal research is a kind of study that is grounded in primary legal sources and examines pertinent legal regulations, legal theories, legal conceptions, and legal principles. This study’s issue approach is based on both a conceptual and a legislative approach (Peter Mahmud Marzuki, 2019). The investigated issue is resolved by the employment of legal documents. Primary legal resources, secondary legal materials, and non-legal materials are all utilized in this work. Following a methodical organization of these legal sources, a study of the contents is conducted. The results of the legal analysis are then discussed to better understand the issues addressed by the author. Finally, this discussion yields a conclusion that can be justified, thus achieving the goal of the thesis writing, which is to answer the formulated questions.
III. RESULTS AND DISCUSSION
Legal protection for the copyright holder of the SKJ88 song whose work was used without permission for commercial purposes by PT. Elang Prima Retailindo
Protecting the creator and copyright holder is the goal of legal protection for the owner of the SKJ88 song whose work was utilized for commercial reasons by PT. Elang Prima Retailindo without authorization. Therefore, it is anticipated that this endeavor would foster and cultivate the creative spirit in the creation of literary, artistic, and scientific works. The implementation of the UUHC is expected to provide clarity regarding the status of creations, so that creators and copyright holders no longer need to worry about the protection of their works. Creators must understand these principles well so they can be more careful when publishing their works, in order to prevent theft by others. To avoid potential problems in the future, it is very important for creators to always document every work they publish. This documentation will serve as strong evidence in case of a dispute regarding copyright ownership. (Iswi Hariyani et. al, 2020).
Legal protection can be divided into two categories. First, internal legal protection, which serves as a safety barrier formed by both parties when they enter into an agreement. In this context, both parties strive to regulate their interests based on a mutual agreement outlined in the contract clauses they have drafted. In this way, internal legal protection allows each party to obtain balanced protection, ensuring that their rights and obligations are clear and safeguarded. This is important to create harmonious relationships and reduce the risk of disputes in the future. (Moch. Isnaeni, 2017).
Through an agreement based on the freedom to contract, both parties have the ability to make decisions while protecting their own interests. Therefore, this legal protection can be used when the parties have an equal standing. This means that if both parties have equal bargaining power, internal legal protection will be realized. In this case, a healthy contract will be formed when the bargaining power of both parties in the agreement is balanced. According to the mutual agreement mentioned in the contract clause, the parties have established their own internal legal protections. As a result, this legal protection is expected to safeguard the interests of each party. Internal legal protection will be realized when both parties, namely Djanuar Ishak and PT. Elang Prima Retailindo, draft an agreement. This agreement is made with the aim of ensuring that the rights and obligations of each party receive balanced legal protection. This is explained in Article 1338 of the Civil Code, which states that an agreement can have legal consequences for both parties. Thus, it is important for the parties to formulate the agreement clearly and precisely to ensure that their rights are protected and their obligations are well regulated. (Ashibly, 2016). The elements contained in Article 1338 of the Civil Code, namely:
The agreement applies as law for the parties
The agreement cannot be unilaterally revoked
Good faith is essential in the execution of agreements.
The use of a song’s copyright by another party for commercial activities, referred to as “commercial use” in the Copyright Law, requires prior permission from the creator or copyright holder. This permission is usually granted in the form of a license. This license allows the party wishing to use the copyrighted work to do so legally, while ensuring that the rights of the creator and copyright holder are still protected. The licensing process is important to maintain fairness in the music industry and provide fair compensation to creators for their works. (Langit Rafi Soemarsono dan Rianda Dirkareshza, 2021).
A license is a legitimate and official permission to use a copyrighted work. According to Article 80 Paragraph (1) of the Copyright Law, “Unless otherwise agreed, copyright holders and related rights holders have the right to grant licenses to others based on a written agreement to perform acts as referred to in Article 9 Paragraph (1), Article 23 Paragraph (2), Article 24 Paragraph (2), and Article 25 Paragraph (2).” With this license, copyright holders can regulate the use of their works by others while ensuring that their rights are protected. The license granted in the form of a written agreement also provides clarity and legal certainty for all parties involved in the use of the copyrighted work.
In reality, a song’s copyright license does not just grant permission to the licensee. However, the licensing of song copyrights creates rights and responsibilities between the licensor and the licensee. A license becomes an agreement that binds rights and obligations because there is a connection between them.
The licensing agreement must be recorded in the public registry of copyright licensing agreements by the Minister, which requires a fee. Recording is very important because it protects the parties involved in the licensing agreement and facilitates proof in case of disputes in the future. This is because if the license is not recorded, the state will not acknowledge that all parties have rights and obligations. A licensing agreement does not provide a guarantee of legal certainty. According to the UUHC’s Article 83, Paragraph 3, “The license agreement shall have no legal effect against third parties if it is not recorded in the public register as referred to in Paragraph (1).”
The licensing agreement provides internal legal protection to prevent copyright infringement of songs. With the existence of a license, the licensor grants permission to the licensee to produce, distribute, and market the licensed goods, provided that the licensor receives compensation in the form of royalties. This makes things clearer for both parties.
Regarding the case that the author examined in Decision Number 35/Pdt.Sus-Copyright/2021/PN Jkt.Pst and Decision Number 991 K/Pdt.Sus-HKI/2022, both parties, namely Djanuar Ishak and PT. Elang Prima Retailindo did not previously make any agreement, so no binding legal relationship was established. Both parties do not have to fulfill the rights and obligations arising from the agreement because they did not make an agreement. In the event that internal legal protection measures are unsuccessful, external legal protection is available.
The protection offered by the government via rules in the form of unbiased law is known as external legal protection. Since a law should essentially not be partial or biased, this protection must be given to all parties equally (Moch. Isnaeni, 2017).
The government offers inventors, copyright holders, and owners of associated rights exterior legal protection via UUHC, Government Regulation Number 56 of 2021 about the Management of Copyright Royalties for Songs and/or Music, and other legislation. Song works may get external legal protection by registering their inventions or associated rights goods with the Directorate General of Intellectual Property. The purpose of this registration is to protect creations so that their economic value is not exploited by irresponsible parties without permission, and to facilitate copyright holders or creators in granting licenses to other parties in the future. According to Article 64, Paragraph 2 of the Copyright Law, “The registration of works and related rights products as referred to in paragraph (1) is not a requirement to obtain copyright and related rights.” Therefore, even if registration offers more protection, copyright is nonetheless enforceable even if it is not registered.
Losses for creators, copyright holders, and owners of associated rights, whether material or immaterial, due to the actions of others that violate the law are entitled to protection. This protection can be provided through the imposition of appropriate sanctions against the irresponsible party. In this context, civil and criminal sanctions for copyright or related rights violations have been regulated in the Copyright Law. The provisions of this sanction aim to deter offenders and ensure that the rights of creators and copyright holders are respected and legally protected. Thus, the implementation of strict sanctions is expected to encourage compliance with copyright laws and maintain the integrity of the creative industry. The articles in the UUHC that explain civil and criminal sanctions for parties who violate copyright or related rights include:
Civil Sanctions
Granting the right to compensation gives artists, copyright holders, and holders of related rights legal protection in the event that their economic rights are violated. According to the Copyright Law’s Article 96, Paragraph 1, “Creators, copyright holders, and/or related rights holders or their heirs who suffer economic losses are entitled to compensation.”
Criminal Sanctions
If others infringe their rights, creators, copyright holders, and holders of associated rights have the option to seek criminal charges in addition to bringing a civil complaint. It is anticipated that criminal lawsuits will stop a crime from continuing. According to Article 120 of the UUHC, “Criminal offenses as referred to in this Law are complaint offenses.”
The provision in Article 120 of the UUHC classifies copyright offenses as complaint offenses. A complaint offense is an offense that requires a complaint for prosecution, meaning that law enforcement will only follow up on a violation case if a complaint is made by the party who feels their economic rights have been violated. Although it may seem onerous to impose criminal penalties for commercial infringements of the economic rights of authors, copyright holders, and owners of associated rights, these infringements continue to happen on a regular basis. The imposition of such sanctions is commensurate with the losses suffered by the record producer if their work is distributed without permission. Furthermore, the criminal provisions regarding copyright/related rights violations are regulated in Chapter XVII Articles 112 to 120 of the Copyright Law. (Intan Sulystyaningrum, 2022).
In addition, the UUHC protects creators, copyright holders, and related rights holders by regulating fair compensation in the form of royalties for related rights. Regulations regarding royalties are governed by Article 27 Paragraph (2) of the UUHC, which states that “Users must pay fair compensation to Performers and Phonogram Producers if the Phonogram has been commercially announced or the duplication of the Phonogram is used directly for Broadcasting and/or Communication purposes.” The importance of royalties as a form of financial appreciation to creators and copyright holders cannot be overstated. Royalties are the main source of income for creators and artists in the music industry. By receiving royalties, they are incentivized to continue creating quality works, which in turn advances the music industry as a whole. (Raihana et. al, 2023).
Ensuring the preservation and legal certainty of the economic rights of authors, copyright holders, and associated rights owners over songs and/or music works is the goal of Government of the Republic of Indonesia Number 56 of 2021 about the Management of Song Copyright Royalties. By use of an excellent and transparent royalties management system, this regulation ensures better access through information technology. The National Collective Management Institution, established by law, serves as a representative of the interests of creators and rights holders. This institution is responsible for collecting, gathering, and distributing royalties to parties that use the works commercially. Thus, the existence of this institution is crucial in supporting the sustainability of the music industry and protecting the rights of creators and copyright holders. (Edward James Sinaga, 2020). Further explained in Article 18 of Government Regulation Number 56 of 2021 states that:
The Minister creates LMKN to handle royalties, representing the interests of Related Rights owners and creators.
LMKN consists of:
Creator LMKN; and
Related Rights owner LMKN.
Both LMKNs as referred to in Paragraph (2) have the authority to collect, gather, and distribute Royalties from individuals who engage in Commercial Use.
Creator LMKN and Related Rights owner LMKN are each led by independent commissioners.
Provisions regarding the duties and organizational structure of LMKN are regulated by Ministerial Regulation.
LMKN functions as a bridge between creators or copyright holders and users, ensuring that every use of copyrighted works is carried out legally and in accordance with applicable regulations. Additionally, this promotes equity and openness in the way royalties are paid to authors and copyright holders. Article 9 of Government Regulation Number 56 of 2021, which deals with the management of copyright royalties for songs and/or music, makes this clear, which mentions that (Selvia Eka Nurril Laili et.al, 2023):
Through LMKN, anybody may request for a license from the Copyright Holder or Related Rights Owner to utilize songs and/or music commercially in the form of commercial public services.
The minister documents the License Agreement mentioned in paragraph (1) in compliance with the law’s obligations.
Along with the License’s execution as mentioned in paragraph (1), LMKN must receive a report via SILM about the usage of songs and/or music.
Article 64 paragraph (2) of the Copyright Law concerning the registration of creations and related rights products, Article 27 paragraph (2) of the Copyright Law concerning the provision of fair compensation for users who utilize Copyright and Related Rights commercially, and Article 18 of Government Regulation Number 56 of 2021 already provide external legal protection for the copyright holder of the SKJ88 song, whose work was used for commercial purposes by PT. Elang Prima Retailindo without permission. These cases are related to the ones the author studied in Decision Number 35/Pdt.Sus-Copyright/2021/PN Jkt.Pst and Decision Number 991 K/Pdt.Sus-HKI/2022. The Copyright Law’s Article 96, paragraph (1), and Articles 112 to 120 provide that authors, copyright holders, and owners of associated rights who believe that others have infringed upon their rights may be subject to penalties, which can include compensation, fines, or even imprisonment if copyright infringement occurs.
CONCLUSION
Based on the results and discussions outlined by the author, it can be concluded that:
Legal protection for the copyright holders of the SKJ88 song, whose work is used without permission for commercial purposes by PT. Elang Prima Retailindo, is separated into two categories: external and internal legal protection. Internal legal defense for the copyright holders of the SKJ88 song regarding their work used without permission for commercial purposes will be realized if both parties enter into a licensing agreement. This is regulated in Article 80 Paragraph (1) of the UUHC. The external legal protection for the copyright holder of the SKJ88 song against their work being used without permission for commercial purposes is regulated in Article 27 Paragraph (2) of the UUHC, Article 64 Paragraph (2), Article 96 Paragraph (1), Articles 112 to 120 of the UUHC, and Article 18 of Government Regulation Number 56 of 2021.
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