The Santosa Hotel
West Lombok Regency, West Nusa Tenggara August 20
th- 23
rd2017
9 7 8 6 0 2 5 0 9 4 0 0 2 9 7 8 6 0 2 5 0 9 4 0 1 9
International Conference
“Intellectual Property and Potential Resources for Public Welfare”
Person in Charge :
Prof. Dr. H. Lalu Husni, SH.,M.Hum Council Committee :
Dr. Kaharudin, SH.,MH Peer Review :
Prof. Erman Rajagukguk, SH.,LLM., Ph.D Prof. Dr. Agus Sardjono, SH.,MH
Prof. Rahmy Jened, SH.,MH Dr. Yuliati, SH.,LLM
Nurul Barizah, SH.,LLM, Ph.D Dr. Agung Sudjatmiko, SH.,MH Dr. Winner Sitorus, SH.,MH Dina W. Karyodimedjo, SH.,MH Head of Steering Commite : L. Hayyan Ul Haq, SH, LLM, Ph.D Deputy of Steering Commite : Dr. Kurniawan, SH.,M.Hum Editor and Layout :
Dwi Martini, SH.,MH Ahmad Zuhairi, SH.,MH
Khairus Febriyan Fitrahady, SH.,MH M. Riadussyah, SH.,MH
All right reserved
Cetakan 1 : Agustus 2017
ISBN: 978-602-50940-0-2 (Jilid Lengkap) 978-602-50940-2-6 (Jilid 1)
Published by:
Faculty of Law, University of Mataram
in Cooperation with Association of Intellectual Property Lecturer of Indonesia
Kata Pengantar
Tentang HKI sendiri di Indonesia walaupun sebenarnya sudah sejak lama diperkenalkan dan diatur, tetapi sepertinya, diam-diam masih banyak pihak mempertanyakan efektifitas keberlakuannya, sehingga dalam buku ini topik tersebut kembali diangkat sebagai bahan diskusi. Efektifitas pemberlakuan HKI di Indonesia dipengaruhi oleh 3 (tiga) faktor, yaitu kualitas perundang-undangan, aparat penegak hukum, dan pemahaman masyarakat.
Hak kekayaan intelektual (HKI) merupakan topic yang selalu menarik dalam diskusi akademis dan juga praktis. Kasus- kasus pembajakan hak cipta dimana person, lembaga, komunitas atau bahkan kita sebagai bangsa sering menjadi korban, semakin memperkuat fakta mengenai pentingnya kajian-kajian akademis mengenai HKI. Buku ini merupakan kumpulan kajian tentang HKI yang ditulis oleh para pengajar Hak Kekayaan Intelektual seluruh Indonesia. Berbagai isu yang terkait dengan topik ini dikaji dari berbagai perspektif dalam buku sehingga semakin memperkaya wacana dan dinamika diskusi mengenai hak kekayaan intelelektual.
Berbagai kajian yang dilakukan oleh para penulis dalam buku ini tentu masih terbuka untuk didiskusikan dan dikembangkan yang tentunya akan semakin memperluas atau memperdalam topik dalam setiap subyek yang didiskusikan. Tulisan-tulisan dalam buku ini memang dihajatkan untuk memancing diskusi yang lebih luas.
Sebagai sebuah upaya akademik, tulisan-tulisan atau kajian-kajian dalam buku ini perlu diapresiasi oleh semua pihak, dengan tetap menghilangkan daya kritis dan inovasi lanjutannya. Penerbit berharap, buku ini bisa menjadi pemantik untuk lahirnya karya-karya lain mengenai subyek yang sama.
Buku prosedding ini dibuat menjadi dua jilid; jilid I merangkum naskah-naskah berbahasa Inggris dan jilid II merangkum naskah- naskah berbahasa Indonesia.
Mataram Agustus 2017 Editor
daftar IsI
SYMPHONIZING IP LAWS IN THE ADVANCEMENT OF CULTURE •1 - 21 Agus Sardjono
INTELLECTUAL PROPERTY FOR THE INFORMATION MANAGEMENT SOCIETY •22 - 32
Rahmi Jened, Didik Endro Purwoleksono, Sujayadi RAL RIGHTS IN COPYRIGHTS •37 - 53
Zulvia Makka, Yahya Ahmad Zein
THE IMPLEMENTATION OF THE COPYRIGHT LAW BASED ON THE PERCEPTION OF LEGAL CULTURE •54 - 68
Hernawan Hadi
LEGAL PROTECTION ON THE FOLKLORE OF TRADITIONAL CEREMONIES AND BRIDAL COSMETOLOGY OF SOUTH TAPANULI/SIBOLGATHROUGH COPYRIGHT
REGISTRATION •69 - 82
Irma Fatmawati, Dina Andiza, Beby Sendy INTELLECTUAL PROPERTY RIGHTS FROM THE VANTAGE OF LEGAL PHILOSOPHY:
PROTECTION OF TRADEMARK RIGHT
BASED ON NATURAL LAW THEORY •83 - 95 Erman Rajagukguk
THIS IS TO CONCLUDE MY REVIEW OF SEVERAL SUPREME COURT DECISIONS IN TRADEMARK
CASES FROM THE VANTAGE OF THE PHILOSOPHY OF LAW PUBLIC INTEREST PROTECTION
IN PATENT SYSTEM •96 - 118 Winner Sitorus
TRADEMARK SETTINGS IN ASEAN ECONOMIC COMMUNITY IN CONNECTION WITH THE AMENDMENT OF THE LAW NO. 20 OF 2016
ON TRADEMARK AND GEOGRAPHICAL INDICATIONS •119 - 132
Delfiyanti
PROTECTION OF GEOGRAPHICAL INDICATIONS: CHALLENGES FOR INDONESIA AND ISSUES IN INTERNATIONAL SETTING •133 - 161
Dina W. Kariodimedjo
LEGAL PROTECTION OF WELL-KNOWN MARK IN INDONESIA (CASE STUDY IN
IKEA TRADEMARK) •162 - 176 Ahmad Zuhairi
OPPORTUNITIES AND CONSTRAINTS OF GEOGRAPHICAL INDICATION PROTECTION
BASED ON ACT NO 20 OF 2016 •177 - 191 Mieke Yustia Ayu Ratna Sari
GEOGRAPHICAL INDICATIONS PROTECTION UNDERTHE NEW REGULATION
IN INDONESIA •192 - 212 Wahyu Sasongko
THE LEGAL REVIEW OF THE RIGHTS OF FOREIGN BRANDS ONWEAKNESSES OF FIRST TO FOLE REGISTRATION PRINCIPLES IN INDONESIA •213 - 227
Muchtar A H Labetubun
THE IMPLEMENTATION OF THE FAIR USE DOCTRINE ATTRIBUTED WITH CREATOR
REPUTATION HONOR IN INDONESIA •228 - 223 Sri Walny Rahayu
IMPLEMENTATION OF DRUG PATENT REGISTRATION AND LACK FACTORS OF DRUG PATENT REGISTRATION BASED ON UU NO 13 YEAR 2016 •244 - 263
Anggraeni Endah Kusumaningrum, Aniek Tyaswati W.L OPTIMIZATION OF BIODIVERSITY-BASED
TRADITIONAL KNOWLEDGE CONTRIBUTION FOR INDONESIA’S SUSTAINABLE DEVELOPMENT THROUGH THE IMPLEMENTATION
OF NAGOYA PROTOCOL •264 - 284 Dwi Martini
LIA CULTURAL EXPRESSION AS A FORM OF COMMUNAL INTELLECTUAL PROPERTY
DEVELOPMENT IN KAILI ETHNICITY OF CENTRAL SULAWESI •285 - 300 Fatimah Maddusila
tHE IMPLEMENtatION Of tHE faIr UsE dOCtrINE attrIBUtEd WItH CrEatOr
rEPUtatION HONOrIN INdONEsIa
302Sri walny Rahayu303
Law Faculty, Syiah Kuala University email: ayoe_armans@unsyiah.ac.id
ABSTRACT
Copyright in Indonesia began to be regulated in the Dutch colonial era, called Austerswet 1912, which prevailed until the independent Indonesia. Austerswet 1912 is repealed by Law No. 6 of 1982 on Copyright.The Copyright Law (UUHC) has repeatedly amended its norms until the last through Law Number 28 Year 2014 (UUHC Year 2014). UUHC Year 2014 revoked Law Number 19 Year 2002 regarding Copyright. Of the entire regime protected by IPR law, in it principle, the regulation equally has an exception, if the property of the individual protected by the law is intersect with the public interest, or for the benefit of education, the public interest takes precedence provided that “does not violate the reasonable interests” of the Creator.This principle is known as “Fair Use Doctrine.” The UUHC of 2014 adopts it in Articles 43-51 on Copyright Restrictions, and Sections 84 -86 of the License.This means Indonesian copyright law permits a person to use or exploit a work without the author’s permission, provided within fair reason.
On the basis of such arrangements the consequences of the use, copying or alteration of copyrights for educational purposes are exempt from copyright infringement. But to what extent is this exception?For example a private school / university owner overall use of his computer device using pirated software is allowed?Or the entire
302 Presented on The International Seminar Intellectual Property Rights 2017,
“Symponizing Intelectual Property for Public Welfare”, Faculty of Law, Mataram University, August, 20-23 2017,
303 Senior Lecture, Law Faculty Syiah Kuala University, Jl. Putroe Phang No. 1 Darussalam- Banda Aceh, Dr.(FH Unpad-Bandung), M.Hum (FH-Unpad Bandung), S.H.
(FH USK-Banda Aceh), email. ayoe_armans@unsyiah.ac.id
collection of books in school / university is a photocopied book?This causes learners do not want to buy the original book.The restriction rules against copyright infringement in UUHC 2014 caused a dilemma.
How is the size or criteria to what extent “one can use or exploit a creation without the author’s permission, provided within reasonable limits”.How is the limitation of the requirement condition “for the benefit of education and research and so on as regulated by Article 44 UUHC” is permitted to take part or all of the substantial matters of copyright, which are the most important, characteristic parts of the Creation as long as the source is mentioned “?
This brief paper discusses the use of fair use doctrine in relation to respect for the reputation of the creator,Whether the size of exceptions based on the fair use doctrine so that its use still respects the economic rights and moral rights of the creator.
Keywords: Fair Use Doctrine, The Award reputation of Creator, Indonesia
bACKgRounD
In the globalization era, human being have invented sophisticated technologies that allow them to compete either with good faith or bad faith. The use of technology may have consequence to the abuse of intelectual property right by any means, including copyright.
Intelectual property rights in any fields such as science, art, and literature has crucial role to support the development and prosperity of indonesia.A creator through its ability and skill can produce a creation of self expression from its creativity and idea. By this reason, state should provide legal protection through the recognition for the creator reputation. It is quite reasonable because the creator need not only ability and skill, but also time, energy, and money to produce an invention.
Copyright law offers creators guarantee, not only to protect their exclusive rights over their creations in half or completely without permission, but also ensure benefit to the creators for their intelectual ideas. Without proper protection, they may refuse to publish their work. Eventually, society could not enjoy what those creators have produced.
Indonesia have already regulated copyright law since dutch colonial era through Austerswet 1912. This regulation applied until Indonesian Independence and was replaced with Act Number 6 of 1982 on Copyright. Since then, this law has been revised several times, including its norm until the latest law which is Act Number 2014 revoking law Number 19 of 2002 on Copyright.
The establishment of law in the field of intelectual property rights is not based on the interest of the society itself. Yet, it is aimed to conform with the need of global trade activity. In global era, many developing countries including Indonesia have no other choices except to accommodate industrial countries’ interests who have provided assistance to them.304
Any regimes protected by Intelectual Property Law basically have the same principle; if individual interest contradictsto public interest or social, politic, education, research, or culture, these interests are prioritized rather than the individual one consideringit does not violate the fair use of creator, namely principle of fair use.305
Subsequently, this journal will apply the Principle of Fair Use afterwards. Rich Stim defines the Principle of Fair Use as follow:306
“In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner.
In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not
304 Agus Sarjono, Membumikan HKI Di Indonesia, Bandung: CV. Nuansa Aulia, 2009, hlm. 11.
305 Henry Campbell,Black’s Law Dictionary, Sixth Edition, West Publishing Co.,St.
Paul, the United States of Amerika, 1990, hlm.598 memberidefinisiFair Use Doctrineyaitu,
“A privilege in others than the owner. To determine whether fair use has been made of copyrighted material, the nature and objects of the selections made, the quantity and value of material used and extent to which the use may diminish the value of original work must be considered. Fair use involves a balancing process by which a complex of variable determine whether other interests should override the rights of a creators. The copyright Act explicity identifies four interest,(1) the purpose and character of the use, including its commercial nature;(2) the nature of copyrighted work;(3) the proportion that was “taken”
and the economic impact of the “taking”
306 Rich Stim, What is fair use, Copyright overview, <http://fairuse.stanford.edu/
overview/fair-use/what-is-fair-use/>, [12/07/2017].
be considered an infringement”.
The implementation of the Principle of Fair Use is regulated under Copyright Act of 2014, in Article 43-51 on the Limitation of Copyright and Article 84-86 on License.307 Article 44 of Copyright Act of 2014 provides “the use, collection, copy, and/or change of a Creationand/or Related Right Product either completely or in half which is substantial is not considered as a violation of Copyright Law if; (1) the source is mentioned or cited properly for the the purpose of education, research, science article, report, critic or problem review without causing unreasonable loss to the creator or copyright holder;
(2) security along with government management, legislative, and justice; (3) lecture related to education and science only; or (4) show or performance that is free of charge provided that it is not disadvantage the right of owner’s fair use... etc.”
The definition of Article 44 of Copyright Act of 2014 which reads “in half which is substantial” is the most important part and unique of the Creation. Moreover, the meaning of“without causing unreasonable loss to the creator or to the copyright holder” refers to the interest based on equity in enjoying economic benefit from related invention.
According to the aforementioned regulation, the use, copy or conversion of copyright purposedto education are excluded from the copyright violation. Nonetheless, to what extent is this exception? For example, is a teacher/ lecturer by the reasoning of Fair Use Principle to educate people in terms of education allowed to use/sell either
307 Several states have developed various limit methods. In India and the UK, one of the limit of copyright protection is Fair Dealing Defence, in the US is called Fair Use Doctrine. Fair Dealing basiccally gives the opportunity to the people to copy a coprighted work for the purpose of critics, parody, education, or research, without requiring permission from the copyright owner. Fair Dealing is often defined as “priviledge owned by people that is not given to the copyright owner. it aims to use a copyrighted work fairly without the agreement by its owner, although the owner has monopoly right over its work”. Those states are also members of Berne Convention as well as TRIPS. According to Article 9 Paragraph 2 of Berne Convention and Article 13 of TRIPS, three step test applies to guarantee the limit of copyright only when such limit “has no conflict of interest with the exploitation of a work and not unreasonable presumption from legitimate interest of copyright owner”. Pan Mohamad Faiz, Penelitian Hukum: Fair Dealing dan Fair Use pada UU Hak Cipta Konsep Hukum “Fair Dealing” di Berbagai Negara Pilihan (Studi Banding Berdasarkan UU Hak Cipta Indona, Inggris, Amerika Serikat, Australia dan German), <http://Jurnalhukum.
a whole or in half of pirated software at school or in the univesity?
Is it allowed by the reason of fair use to provide only copy books at school/university and cause student not to buy original version of book. Another problem is that what is the maximum number or size that someone can copy works of others for the reason of education and research or social culture? Is copying a copyright work for 200 pages along with citing the author’s name in citation/footnote and bibliography considered as following the Fair Use Principle of Copyright Law of 2014?
This short article will discuss about the implementation of Fair Use Principle related to indicators in analyzing the abuse of using Fair Use Principle over its exceptions viewed from the balance of enjoying economic benefit.
LItERAtuRE StuDy AnD AnALySIS
Copyrights is one of the seven types of Intelectual Property Rights regime in Indonesia. Intelectual Property Rights include Patent, Trademark and Geographical Indications, Industrial Design, Layout Design of Integrated Circuit, Trade Secret, and Repression of Unfair Competition. Lack of understanding in our society about Intelectual Property Rights has led to the misconception in differentiating Patent from Copyrights, or Trademark from other Intelectual Property Rights.
All of those types embrace Fair Use Principle. This article merely focus on Fair Use of Copyrights.
Fair use Principle deduces from Anglo-Saxon Law, was adopted by European Continental System and introduced into Indonesian Law as the legacy of Dutch colonialism.308 It means that Indonesian Copyrights Law allows a person to utilize or exploit a creation without permission from its creator in reasonable limits or permitted by Intelectual Property Rights Law of 2014.
Regulation in confining Copyrights violation under Intelectual Property Rights Law of 2014 is perplexed. It is the result of the non- existence of detail information on how to exercise the limit of Fair
308 Bambang Pratama, Fair Use VS Penggunaan Yang wajar Dalam Hak Cipta, http://
business-law.binus.ac.id/2015/01/31/fair-use-vs-penggunaan-yang-wajar-dalam-hak-cipta, [diakses, 12/07/207].
Use Principle on exploiting or utilizing an invention in lack creator’s permission. Even for the purpose of education and research, Article 44 of Intelectual Property Rights of 2014 allows to use in partial or in completeof only substantial part of a creation which is the character of a creation or an invention, as long as the source is cited in.
In other words, the limitation of owner’s exclusive rights under Intelectual Property Rights of 2014 based on Fair Use Principle has not had the exact criteria yet. This situaton may led a person with illicitintentionshielding behind the principle in committing copyrights abuse, although it is purposed for education and research or socio- cultural. It happensbecause the norms in Articles related to owner’s exclusive rights from Copyrights Law of 2014 do not firmly separate public interest value in Fair Use Principle from moral and economic rights of copyright owner which is credited to his/her reputation.
In the US, Fair Use Principle is called Fair Use Doctrine, regulated in Title 17 U.S.C.§ 107. Title 17 U.S.C.§ 107which regulates parameters of Fair Use Principle for any exception of owner’s monopoly right.
Such parameters are the indicators to exercise whether or not copyright abuse occurs. There are four parameters; (1) the purpose and character are not for commercial purpose, ;(2) the nature of the copyrighted work is not changed, ;(3) the amount of use, and ;(4) it has no effect to the market of the copyrighted work.309 Therefore, it can be seen that the US Copyright Code governs the exceptions of copyrights with the obvious parameters.
On the contrary, Article 44 of Law Number 28 of 2014 unclearly specifies the limits of Fair Use Principle and needs further explanation on the future legal dispute derived from the terms “equity in enjoying economic etc...”.
Doctrine of Fair use in the US is taken as the comparison to examine the application of Fair Use Principle in Indonesian Copyrights Law. The Copyright Act of 1976 applies several variables to determine that a work is not a result of plagiarism or copyright abuse as follow:310
309 Sri Walny Rahayu, “Perlindungan Hak Ekonomi Pencipta Terhadap Karya Ciptaan Musik dan Lagu di Indonesia BerdasarkanUndang-UndangNomor 12 Tahun 1997 dikaitkandenganPerjanjian TRIPs-WTO”, Tesis, Bandung: UniversitasPadjadjaran. 2000, hlm. 122.
a. The purpose and character of your use. In other words, it should be examined whether or not it is used for commercial purpose.
b. In 1994, the US Supreme Court insisted the element of The Purpose and Character of your use to be the indicator of Fair Use Principle. A copyrighted work used to create a new creation or just being copied into another work can be determined by two indicators: is there a new expression or meaning added into the orginal work? Does the value added into the original work produce new information, aesthetic, concept, and comprehension?
c. The nature of the Copyrighted Works. Due to the fact dissemination or useful information for public, a factual work such as biography tend to be copied more than a fiction such as drama or novel. Furthermore, the scope of Fair Use Principle is limited on unpublished work.
d. The Amount and Substantially of the Portion Taken in relation with the copyrighted work as a whole.
e. Example: the less you take, the more possibility your copy will be forgiven as the Fair Use. However, eventhough you take small part of copyrighted work, your copy will not be considered as a fair use if the part you take is from the most important part of the copyrighted work. For example, someone takes and copy the intro part of Riff’s song “I can’t get no satisfaction” from a song called “Satisfaction”.
f. The effect of the Use upon the Potentially Market. This provision considers whether the use by the other may pose loss to the copyright owner or damage new market or possibly decrease the value of copyrighted work economiccally.
g. For example, in one case, an artist uses a copyrighted photograph without its owner’s permission to inspire his wooden sculptures by copying all elements of photo into it. The artist then earned hundreds of thousand dollars from selling those wooden sculptures. When the photographer sued him for copying his photograph to make the sculpture, the artist argued that he worked according to the Fair Use principle and thought that the photographer would never consider to turn that photo to be a
overview/fair-use/what-is-fair-use/>, [12/07/2017].
sculpture. In this case, the court disagreed with the artist and stated that no matter whether the photographer ever consider to make a sculpture from his photo, as long as there is potential market for related sculpture, it may bring economic loss to the photographer based on the Effect of th Use upon the Potentially Market ( Rogers v. Koons , 960 F.2d 301 (2d Cir 1992) ).
Those 4 indicators are accompanied with the purpose and reason of copyright offenders. On this matter, if the copyright user does not have intention for earning economic benefit but for education purpose, personal need or personal non-profit research, then it is not considered as gaining personal profit.
The standards of Fair Use as the exceptions in the US Copyright Act, regulated in 17 U.S.C. § 107 (1) are not for commercial use, (2) not change the nature of copyrighted work, (3) the amount used, (4) it has no effect to the market of the copyrighted work. Thus, the implementation of Fair Use Principle in The US has clear parameters as to examine the limit of exceptions in copyrights.
The US Copyright Act of 1976 specifies more detail regulations concerning copyright infringement, as follow:311
1. Verification of access.
Verification relates to the methods of examining words.
2. Substantial similarity
Substantial similarity should relate to substantial part of the original copyrighted work or public domain.
Infringement usually occurs in two steps, firstly, proving that there is infringement and secondly, such infringement happens illegally.
Therefore, it can be concluded that:
a. the defendant takes what belongs to public domain
b. the plaintiff takes copyrighted work that is not from public domain so as he/she does not deserve to obtain copyright.312
311Blakeney, Michael dan Jill McKeough, Intellectual Property: Commentary and Materials, Second Edition, The Law Book Company Limited, Australia, 1999, hlm. 164.
312 Chairul Anwar, Hak Cipta Pelanggaran Hak Cipta dan; Perundang-undanganTerbaru Hak Cipta Indonesia, Novindo Pustaka Mandiri: Jakarta, 2014, hlm. 28. Dan Rich Stim, What is fair use, Copyright overview, < http://fairuse.stanford.edu/overview/fair-use/
Subsequently, the plaintiff have to prove the elements copied from original work, at least half part that is protected by copyright law. According to the norm of copyright law, the difference between copying permissible and restricted part is copying the idea of any work while the restriction aims to protect the expression of the idea.
The US apply standard of quality and quantity of protected work material to prove any infringement of copyright. According to Rich Stim, these two standards are crucial to identify how far a copyrighted work has been used. This statement is reaffirmed by Chairul Anwar that these standards are important in the US Copyright Act.313 For instance, Miller Davis describes the implementation Fair Use Principle in music and song:314
“There are only limited a number of musical elements – the seven tones of tradional western scale (do,re, mi, fa, sa, la, si, ti) plus the half tones – certain similarities between musical works are expected an inevitable. The issue then becomes to decide at what point the inevitable repetitions become impermissible takings.”
In the US, there is conclusion between standard of quality and quantity to prove a copyright infringement. WIPO defines the Fair Use Principle namely:315
“…A general limitation on the exclusive right of the owner of copyright. It evolved as a judicial doctrine and was given statutory recognition….fair use is allowed for purposes such as criticism, commentary, news reporting, teaching, scholarship or research. It is to be determined by considering factors such as whether the use is of a commercial nature or is for non-profit educations purposes, the nature of the work protected by copyright, the amount and substantiality of the work protected by copyright, the amount and substantiality of the portion used in relation to the work as a whole, and the effect of the use upon the potential market for, or value of, the work, fair use is a sort of free use of the work. “
313 Chairul Anwar, Op.cit., 31.
314 Miller, Arthur R. dan Davis, Michael H., Intellectual Property; Patents, Trademarks, and Copyright, In A Nutshell, Second Edition, West Publishing Co., St. Paul, Minn., USA, 1990,hlm.340
315WIPO, Publication, General Information, 1993, hlm. 114.
To understand more about this principle in copyright, it can be referred to the case Duck v. Bates (1884) in Australia. a room in Guy Hospital played music without permssion from the owner. This entertainment is used for patiences and their family, medical staffs like doctors, nurses, medical students who work in the hospital. There was no charge to them to enjoy that music.
The next case is Ernest Turner Electrical Instrument Ltd v Perpoming Right Society Ltd (1943). In the Ernest Turner Electronic Factory, a song was played to keep the employees from boredom.
To determine whether the two cases above are categorized as for profit purpose or a infringement of copyright due to the use of performing right without owner’s permission, a decision by Judge Brett in Duck v Bates Case can be a reference as cited by Blakeney and Mc Keough as follow:316
“In order to entitle the author to penalties, there must be a representation which will injure the author’s right to money; such, for instance, as a representation, which, although it is not for profit, would attract persons who are willing to pay money and would induce them not to go to see a presence licensed by the author.
Suppose that a representation in the presence of friends takes place for amusement of friend and of members of the household in an unfurnished house hired for the occasion; that is not an infringement. The representation must be other than domestic and private. There must be present a sufficient part of the public who would go also to a performance licenced by the auther as a commercial transaction; otherwise the place where the music is represented will not be a “place of music entertainment” within the meaning of the statute”
From this statement, the two cases mentioned early are not infringement of copyrightbecause it did not inflict a financial loss to the copyright owner. There was no profit gained from the activities in the two cases and it was free of charge. It was only for entertainment, not for commercial purpose.
316 Blakeney, Michael dan Jill McKeough, Intellectual Property: Commentary and
The purpose and nature of use relates to whether it is the commercial and non-commercial purpose or it is used for public or personal interest. In this case, commercial purpose is the basic reason that it is not considered as Fair Use while social or education purpose are the basis to constitute as Fair Use.
The following cases are the examples of copyright infringements.
The first case is about the unpublished memoar of the Former US President, Gerald Ford, that were published by The Nation magazine.
The publication was made a few weeks before it was published by other magazines. Important factor: the copying by The Nation have affected the market upon serial scripts of Mr. Ford (Harper & Row v.
Nation Enters., 471 US 539 (1985).317
The next case is a biography who complaint about unpublished letters written by a well-known author, JD Salinger. Although people could read the letters in the university library, Salinger never gave permission to reproduce that biography the university library. In other words, public already read the letters in the paraphrazed biography.
Important factors: those letters were not published. Therefore, those letters might be considered as a tool to utilize Salinger’s interest instead of a critic to the author. (Salinger v. Random House, 811 F.2d 90 (2d Cir 1987).
The other case is when an author copied more than a half of unpublished manuscript to prove that someone was involved in the overthrow of Iran Government. Important factor: majority of the author’s work was taken and were not published. Cinta v. Kwitny , 772 F.Supp 1367 (SDNY, 1989)
From the aforementioned cases, social purpose, education interest or non-profit purpose are often used as aclaim for fair use.
Hence, the purpose and nature of copyright user must be observed.
Using a copyrighted work for personal interest does not fulfill the Fair Use Principle if eventually it results to gain profit
Proportional Amount and Substantial Use
In this matter, the infringement relates to the copyrighted work that is taken by other people without permission from copyright owner
317 Rich Stim, Op.cit.
in its proportional quantity and quality. The two plagiarism factors are important in the US Copyright Act. Moreover, the smallest portion of a copyrighted work can be the most essential part in the plagiarism work.
In the case between Robertson v. Baten Barton, Dustin,& Osborn, Inc 1956, the defendant only used the smallest part of the song owned by plaintiff. Nonetheless, this part is the most commercial value to the song. in this case, Judge stated that a portion of the song is the key part of the work. In its decision, the court decided that such action was against Fair Use Principle due to the economic loss of copyright owner.318
1. Substantial similarity.319
This matter is quite complex and disputed in the copyright law.
Generally, substantial similarity derives from nonexpert opinion.
Nevertheless, for complex matters, such as music, it requires opinion from expert (expert testimony) to limit any possible debate.
2. Parody320
Parody is a literature work or art that intentionally copy the style or word from an author or any other creator to find humour effect.321 Jhon M. Echols and Hassan Shadly define parody as “a mocking imitation or copying to ridicule.322 Furthermore, parody as stated by George Wei as, “An Individual takes a work and makes a parody of it for the purpose of criticizing another individual”.323Thus, parody is a mocking art work, created by imitating and take a part of other’s work for the purpose of criticizing something.
The existence of parody as an art work is still disputed until today. In indonesia, there is lack of understanding by creators, artists, musicians, and even law enforcers concerning parody. The problem
318 Sri Walny Rahayu, Op. Cit., hlm. 126.
319 Loc. Cit.
320 Loc.Cit.
321 Departemen Pendidikan dan Kebudayaan, Kamus Besar Bahasa Indonesia, Edisi Kedua, Balai Pustaka, Jakarta, 1996, hlm. 731.
322 John M. Echols dan Hassan Shadily, KamusInggris Indonesia, Gramedia, Jakarta, 1995, hlm. 418.
is whether parody violates owner’s right both economiccally and morally or it is protected by a special copyright law. In regard to such case, Johann Mattheson, an expert and creator of music from the 18th century as quoted by Paul Goldstein stated “borrowing is something permissible, but it must be returned with flower, which mean the imitating music should be recomposed to be better and beautiful that the original version.324
From the explanation above, it can be concluded that borrowing or imitating in parody is permissible as long as it is better than the original version. Moreover, to obtain a copyright protection, George Wei explained that:
“Parodies often involve significant changes to the form of expression, so much so that the parody will enjoy copyright in its own right as an original literary work which is itself a piratical work, so long as sufficient labor and skill has been expended so as to cloak it with originality. So far as infringement is concerned, the issue remains whether or not a substantial part parodied has been taken.”
That statement indicates that in order to gain copyright protection, a parody has to have significant change of expression from its original work. That is how the parody will be protected and considered as a new work.
To know more about parody, it can be seen from the following case between Joy Music Ltd v. Sunday Pictorial Newspaper, cited by George Wei. Joy Music (Plaintiff) accused Sunday Pictorial (defendant) for committing copyright infringement from the following lyric:
“Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock, Rock-a-Billy, Rock-a-Billy, Rock, Rock, Rock, Rock-a-Billy, Rock-a-Billy, Rock-a-Billy, Rock Rock-a-Billy, Rock-a-Billy, Rock, Rock.”
The defendant wrote an article on Sunday Pictorial to cricize H.R.H Prince Philip. That article created a song from song Rock-a- Billy by changing its lyric, “Rock-a-Philip, Rock-a-Philip, Rock-a-Philip,
324Paul Goldstein, Copyright’s Highway, From Gutenberg to the Celestial Jukebox (Diterjemahkan “HakCipta: Dahulu, KinidanEsok”), Masri Maris (Penerjemah), YayasanObor Indonesia, Jakarta, 1997, hlm. 38.
Rock,”. The plaintiff claimed that the similar lyric between in parody and “Rock-a-Billy” song is just an idea to inspire that parody, and there should not be considered as copyright infringement. It is because copyright law does not provide legal protection to an idea. By that rule, a parody is allowed if it does not contain substantial material from the original music, but it still need expert testimony and judge to decide.
In principle, the exception of copyright is limited, and there is economic principle that should be followed. The principle from the form and character of a work should not be changed and the owner interest on is work should not be violated.
ConCLuSIon
The regulation of fair use in Indonesia which is governed in Article 43-51 concerning the Limitation of Copyright and Article 84-86 concerning License of Law Number 28 of 2014 have not yet provided clear restrictions and need interpretation on how to measure fair use.
It n requires concept interpretation to solve any dispute in the future based on the word “balance in enjoying economic benefit etc...” the US regulate Fair Use Doctrine in 17 u.S.C. § 107. The parameters to determine the exception of Fair Use Doctrine are (1) the purpose and character are not for commercial purpose, (2) the nature of the copyrighted work is not changed, (3) the amount of use, and (4) it has no effect to the market of the copyrighted work. By those four parameters, the US have clear regulation to limit Fair Use Principle.
In principle, the exception in copyright is not unlimited, but there is economic principle that should not be violated, principle on the form and character of work that should not be changed and the the owner interest that should not be violated. By clear restriction on copyright exceptions, the term fair use can be proportional with Principle of Legal Security, Equitable Principle, Personality Principle, and Good Faith Principle in Indonesia Intelectual Property Right Regime.
bIbLIogRAPHy books
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Goldstein,Paul,Copyright’s Highway, From Gutenberg to the Celestial Jukebox (Diterjemahkan “HakCipta: Dahulu, KinidanEsok”), Masri Maris (Penerjemah), Jakarta: YayasanObor Indonesia, 1997.
Miller, Arthur R. dan Davis, Michael H., Intellectual Property; Patents, Trademarks, and Copyright, In A Nutshell, Second Edition, St.
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Wei, George, The Law of Copyright in Singapore, Singapore National Printers Ltd: Singapore, 1989.
Documents and Research Result
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WIPO, Copyright Law Survey, Loose-leaf Publication, 1983. WIPO Publication, General Information, 1993.
Laws
Undang-Undang Nomor 28 Tahun 2014 tentang Hak Cipta
others websites
Bambang Pratama, Fair Use VS Penggunaan Yang wajar Dalam Hak Cipta, <http://business-law.binus.ac.id/2015/01/31/fair-
use-vs-penggunaan-yang-wajar-dalam-hak-cipta>, [diakses, 12/07/2017].
Pan Mohamad Faiz, Penelitian Hukum: Fair Dealing dan Fair Use pada UU Hak Cipta Konsep Hukum “Fair Dealing” di Berbagai Negara Pilihan (Studi Banding Berdasarkan UU Hak Cipta Indona, Inggris, Amerika Serikat, Australia dan German),<http://Jurnalhukum.blogspot.
com>, [diakses 16/7/2017].
Rich Stim, What is fair use, Copyright overview,
<http://fairuse.stanford.edu/overview/fair-use/what-is-fair- use/>, [12/07/2017].
Kamus
Henry Campbell,Black’s Law Dictionary, Sixth Edition, West Publishing Co.,St. Paul: the United States of Amerika, 1990.
Departemen Pendidikan dan Kebudayaan, Kamus besar bahasa Indonesia, EdisiKedua, BalaiPustaka: Jakarta, 1996.
Echols, John M. dan Hassan Shadily, Kamus Inggris Indonesia, Gramedia: Jakarta, 1995.
