COmPARATIVE LAw mODEL FAIR uSE / COPyRIGHT FAIR DEALING
Organization (WTO) which include agreements on Aspects of trade IPR known as TRIPS (Trade Related Aspects of Intellectual Property Rights), with adoption of Act No. 7 of 1994.
The scope of copyright has the most extensive protected object, as in science, literature and art (art and literary) in which also includes a computer program. The development of creative economy became one of the mainstays of Indonesia and various countries and the rapid growth of information and communication technologies.3
In connection with the foundation philosophy of protection of intellectual property rights (including copyright), there are basically two large blocks philosophy of copyright conflicting namely France (Civil Law System) which holds the view Natural Right and the United States (Common Law System) that more closely follow the views of utilitarian4. France as a country adherent Civil Law System, the philosophy of copyright arrangements is influenced by the views of the law of nature that developed in the middle Ages. On the other hand in Islamic Law System is based on the philosophy of religious values as found in Al_Quran and Al-Hadith.
Today, the development of information and communication technology has become one of the variables in the Law on Copyright, considering information and communication technologies has a role strategic in the development of the Copyright, but on the other hand has also become a tool for violations of the law in this area, Setting a proportionate indispensable, so that functions can be optimized positive and negative impacts can be minimized. Therefore, the authors are interested in in-depth comparative law study model of fair use / fair dealing copyrights in various countries that embrace some of the legal system.
PROBLEm STATEmENT
1. How does the law of comparative model of fair use / fair dealing in civil law system and common law system and Islamic law system?
2. What are the weaknesses and strengths model of setting fair use / fair dealing copyright in the civil law system and common law system and Islamic law system?
DISCuSSION
Comparison of the model Law of fair use / fair dealing in the Civil Law System and Common Law System And Islamic Law System
In the civil law system model of fair use / fair dealing copyright stipulated in the NBW Books 9, like IPR products. Since January 2011 all products IPR legislation is codified in The Netherlands New Civil Code5. Fair Dealing copyright can be found in Section 15-25a Aw. Fair dealing is
3 Elucidation of Law Number 28 year 2014 About Copyright
4 Anis Mashdurohatun, Mengembangkan fungsi sosial hak cipta di Indonesia (studi pada karya cipta buku), Disertasi FH UNS Surakarta,2013,page. 56
5 There are three arguments as the reason for the need for new KUHpdt are as follows: That the civil law is fragmented and it is not clear at the time. The vagueness in the KUHPdt main course, but there are also a wide variety of specific legislation, ie legislation outside KUHPdt, which also regulates the civil law. For example, a wide range of specific contracts, such as agricultural land leases and hire purchase. The existence of a set of special laws has made it difficult to obtain an overview, not only for legal practitioners, but also for the legislators themselves. To some extent, special laws is not interconnected with each other, or even deviate from KUHPdt in a way that can not be explained. This is a serious threat to the unity of and the consistency of civil law; KUHPdt there anyway that have become too old and worn out. Terms that are not clear, some actual problems ignored, there are articles that wrongly placed, and so on. This of course means a threat to the rule of law; since 1838 has developed some new insights related to the principles that should underlie the codification of civil law. On the one hand, he argues that
copyright under the Copyright Act is subject to the three-step test. The three-step test states that exceptions to copyright should only be allowed6: The test for members confines limitations and exceptions to exclusive rights to:
1. Certain cases special
2. Do not conflict with a normal exploitation of the work and
3. Do not unreasonably prejudice the legitimate interests of the rights holder.
Netherlands as a member of the European Union, in accordance with Fair Dealing copyright is also subject to the provisions of the European Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information Provides society in Article 5 an exhaustive list of exemptions that can be implemented a by the Member States. Article 5 Exceptions and limitations.
All the exceptions must comply with the three-step test which implies that exemptions must only apply in certain special cases. The three-step test is central to the regulation of copyright limitations at the international level. Delineating the room for exemptions with abstract criteria, the three-step test is by far the most important and a comprehensive basis for the introduction of national use privileges. It is an essential, element in the international flexible infrastructure that limitation allows national law makers to satisfy domestic social, cultural, and economic needs.7
The three step test known also as The Berne three-step test which is also incorporated within Article 13 of Trade-Related aspects of Intellectual Property rights (TRIPS) agreement which itself is incorporated into the World Trade Organization (WTO) agreement to which Vietnam officially became the 150th member of the (WTO) on 11 January 2007.
Fair Use copyright in Common Law System
In the United States, the use of fair use is a defense that created laws dating from the mid-19th century. It was first codified in the Copyright Act of the United States in 1976. Despite the provisions of sections 106 and 106A, Fair Use of copyrighted work, including such use by reproduction in copies or note or with another way that has been determined, for purposes like critique, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use ‘factors Hattush considered that include:8
1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and
4. The impact of the use on the potential market for a value of copyrighted works.
According to Professor Leaffer, factors that are widely expressed, overlapping, and vague, and the legislative history gives little insight to interpret how their weight, or how they are interconnected.9
History copyright in the UK began in 1476 with the invention of the printing press in the fifteenth century. William Caxton found a printer machine. This machine facilitates the process of reproduction (copy) of the paper, since it does not have to recopy by using a pen or other writing instrument. In 1710 law makers in Britain had issued the Copyright Act, known as the Statute of Anne in 1710. Copyright Act arises because the economic interests of the group members who joined the company in Stationers’ Company10 threatened.
Based Design Copyrights, and Patents Act 1988 (CDPA), allows individuals to make single copies of a “reasonable proportion” of literary, dramatic, musical works and art for “research and private study” and “reporting criticism, review and news “(s. 29, 30) under the terms of a” fair “.
The extent of “reasonable proportion” is not defined in the act.
In his book, “Intellectual Property, Copyright, Trademarks and Allied Rights”, Cornish explained that there are three of the most important of the exceptions that turns on a qualitative assessment. They freed copying for certain purposes if the amount is no more than “fair”. In court cases are left to judge the fairness in light of the circumstances. But other, more factual exceptions, for example, unduplicated copy the way instructions are exempted regardless of the amount copied.
Some higher education institutions in the UK also make interpreting “reasonable proportion” as:
a) One article in a single issue of a periodical or a set of conference proceedings.
b) An extract from the book of 5% of the whole or a complete chapter.
c) An entire poem or short story from the collection, provided that they are not more than 10 pages.
d) In general, copying of sheet music is not allowed.
e) Making more than one copy is not allowed.
Fair use/Fair Dealing dalam Islamic Law System
Islam regulate and protect property / intellectual property rights, including copyrights, but not absolute / absolute, because everything that belongs to Allah SWT. In Islamic law emphasizes the balance between rights and obligations in copyrights, because God created man, and gives knowledge. QS. Al-Alaq: 1-5.
9 Leaffer, Marshall, Understanding Copyright Law, New york: Matthew Bender & Company., Inc. , 1989, at 299 dalam Lesley Ellen Harris Comparing Fair Dealing And Fair Use, published in The Copyright & New Media Law Newsletter, Volume 2006, Issue
10 Group of publishing companies and booksellers in London (booksellers) in 1557 has been awarded a monopoly by the King to publish a book or paper prints. However, the monopoly rights only lasted until 1964. So with the lifting of the monopoly rights’ groups and traders book publishing company feel threatened by the competition. Then they lobbied the legislators that their interests are protected on the grounds that if they were not given protection, there will be anarchy that affect the economic disaster. Craig Joyce, et al, Copyright Law, 5th ed, Mathew Bender &
Co., Inc., member of LexisNexis, 2001, page.15-19. In Agus Sadrjono, Grounding of IPR in Indonesia. Bandung.
Nuance CV Aulia 2009.page. 250
The concept of property rights in view of positive law and Islamic law, can we make a comparison:11
a. That the Islamic world to know what is the name of property rights within a certain limit, which is not the same as understanding the idea of property rights from among the capitalists.
b. Islam recognizes only the absolute property rights belong only to Allah, and could not accept the theory of exclusive ownership of capitalist ideology, which in the end is contrary to Islamic social system.
c. Islam sees property as part of a property that has value and benefits as also suggested by the theory of property rights from the western world, just not always proprietary oriented on the value and benefits of the material itself, but also takes in social terms.
d. The process of ownership rights in Islam are basically attached by itself without a process, whereas in view of positive law, property rights will attach to the owner if there is a process which in this case registration process by authorized institutions. After that just got recognition of property rights and protection.
e. Property rights in Islam refer to the provisions Syara “whereas property rights in positive law to lean towards a product of the Act.
f. In view of positive law, the progress of a nation can be seen from the people perform a discovery and intellectual works whereas in Islam that we can see from history, the progress of a nation lies not only on the number of inventors in finding his works, but the most important and staple create conditions conducive to support and support new embryo of the work of human thought.
g. Basically Islam does not recognize Immaterial property protection, when property rights are abstract was born into a proprietary concrete or the results of its manifestations, the new Islam has a legal protection that is eventually anchored in the law of property rights.
h. Islam considers the use of intellectual person merely disseminating knowledge to mankind as an obligation that is not oriented to the value of the compensation, but the positive law looked at the use of intellectual person in a work as a right that should be protected and maintained even rewarded with a nominal value the price may be very priceless, because it is as a masterpiece of human thought.
i. During the rights owners get their rights in accordance with the provisions of Personality
“or not made a transition to another party, Islam does not recognize the term of use of property rights, such as the intellectual property right in the positive law which has a limit for the owner to master it, which will ultimately be extended or transferred to third parties.
l. Islam only impressed looked copyrights for coverage of small, namely in the form of scientific papers or books, whereas in positive law the scope of the said copyright was not only scientific papers, but further than that, such as: photography, drama, music and so forth.
The Strength and weaknesses of model Fair Use/Fair Dealing in Civil Law System and Common Law System as well as Islamic law System
Friedman argued that there are 4 (four) functioning of legal system. The first, it is as part of the social control system (social control) that regulates people’s behavior. Indeed it comes from the law enforcement community and aims to achieve peace and tranquility in the society itself.
According to Donald Black Law is governmental social12. According to Michael Banton in Law Enforcement and social control, that law enforcement is strongly associated with social control13. Second, it is as a means for resolving disputes (dispute settlement). Third, the legal system has a function as a function of social engineering. Fourth, the law as a social maintenance, which is a function that emphasizes the role of law as the maintenance of “status quo” that do not want change.
One of the factors that can affect the good functioning of the law is legal culture of society. The legal culture of society is closely related to public awareness. According Sunaryati Hartono, legal awareness is an understanding of the creation of the legal scholars, which can not be seen directly in the life of society, but can only be inferred the presence / absence of experiences of social life in a way of thinking and way of interpretation certain.14
Furthermore, William Graham Sumner argued that “The law can not change the customs when legislation does not have strong roots in the ways of life of indigenous’, so that Sumner sure that through education critical is education that can really make the citizens of the nation that good (good citizens) and education was good throughout the procedure is a “Well Developed Critical faculty”.15
A law can be considered good from the point of entry into force if it meets the following requirements:16
1. Applicability legally, it means that the law must be created and issued by an official or authorized government according to legal ordinance. Thus, the law should be formalized and enacted by a rule or procedure specified.
2. Applicable sociologically, it means that the law can be applied effectively being recognized, obeyed or complied with in the community as part of everyday life. The rule of law in society can be imposed from above (by the authorities) or accepted willingly by the citizens.
3. Applicability philosophically, meaning that the law applicable in the society has been followed in accordance with the intention of forming the law. Philosophically legal validity
12 Social control is the aspect of social life. It defines and responds to deviant behavior, specifying what ought to be : What is rights or wrong, what is a violation, obligation, abnormality, or discruption. See Donald Black, the Behavior Of Law., Academic Press, London, page. 2 dan 106
13 Michael Banton, Law Enforcement and social Control, in sociology Of Law, Editor Vilhelm Aubert, Penguin Books, 1977, page 127.
14 Ibid. page 12
15 Hari Purwadi, Bahan Kuliah Mata Kuliah Hukum dan Perubahan Sosial, PDIH UNS,Surakata, 2011.
16 Soerjono Soekanto(ed), Inventarisasi dan analisa Perundang-undangan lalu lintas, Rajawali, Jakarta, 1984, page 12
is determined by the rule of law sociologically. Thus, the rule of law sociologically is an absolute requirement that the law be applicable philosophically.
Changes that occur in the community are faster than the legal changes. This resulted that the law is always behind or in other words, the law never proceed to arrange things that will happen or what has happened, so it is possible for the changes.17
View of our society at large until now different from the views of the Copyright Act, a copyright society still regard as common property (Res Communis) while Law Copyright regard as private property (res nullius). Differences in this view, which is one cause of the rampant infringement of copyright in the community. Because as individuals belonging to the other person can not mimic creation except by requesting permission from the creator.18
Different cultures can lead to a failure to communicate or negotiate if each party is unable to adjust to the culture that is owned by its partners. Instead of ability to adapt culturally opportunities towards the establishment of a successful business relationship, so that sensitivity in understanding the culture is crucial.19 The behavior of Chinese people are strongly influenced by the flow of culture Confucianism (Confucianism), which always uses the principles of basic needs and helping as an organizing principle of the company so that in all relationships, both personal and trade, is very important for China to maintain face/dignity.20
UUHC determines the law of copyright protection purposes, the creation began deemed to exist since at first announced or published, broadcast, voiced or distributed by any means and in any manner that can be read, heard, seen others.21 Copyright is an exclusive right for the author or copyright holder to publish or reproduce creation arising out automatically after the creation is finished born without reducing restrictions under applicable law.
In the copyright there are two rights, moral rights and economic rights. The moral rights attached to the creator although his creations have already switched to other parties. Economic rights (economic rights) are rights that can be transferred to the other party (the other party that owns the copyright) and through this right, the creators of the economic benefit of his creation.
These rights include the right to publish and reproduce or give permission to publish or reproduce his creations. This is what is the legal system is very different to the Indonesian nation, with the Fair Use / Fair Dealing, by promoting moral rights and economic rights of creators, rights exclusive or creator can still balance the interests of society at large. In a global context of each country is very important to always drive the creative economy copyrights as all citizens by providing a reward in the form of royalties worth while balancing the principles of fair use / fair dealing.
copyright in the Netherlands. Since January 2011 all products IPR legislation codified in The Netherlands New Civil Code. In common law fair use copyright system emphasizes economic rights. Fair use is a defense that created laws dating from the mid-19th century.
In the Copyright Act of the United States in 1976, to determine the use of a copyrighted work is a “fair use” by considering three factors, namely: purpose and character of use for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used, and no impact on the potential market for a value of copyrighted works. While in Islamic law emphasizes the balance between rights and obligations in copyrights, because God created man, and gives knowledge. QS. Al-Alaq:
1-5.
2. Weaknesses in the model of fair use / fair dealing in the system common copyright law, civil law and Islamic law substantial namely, structure and culture/legal culture of each country, while the surplus which is to cultivate the creativity of the creators and get a reward in individuals and communities, and the nation, certainly not ignore the fair use/fair dealing copyright balance the rights of individuals and communities. Besides also very useful in law enforcement Copyright / IPR in the future that do not always prioritize legal certainty, but rather on the value of the benefit of copyright.
REFERENCES
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Cipta Indonesia. Semarang. Disertasi Program Doktor Ilmu Hukum Universitas Dipone- goro.
---.2006Dekonstruksi Hak Cipta.Semarang.Klinik HKI UNDIP.
Charles Himawan, 1980, The Foreign Investment Process in Indonesia, Gunung Agung, Jakarta.
Craig Joyce,et al, Copyright Law, 5th ed, Mathew Bender & Co, Inc, member of LexisNexis, 2001.
Donald Black, the Behavior Of Law., Academic Press, London.
Friedmen Lawrence M. 2009. Sistem Hukum Perspektif Ilmu Sosial : the Legal System a Social Science Perpespective. Bandung. Nusa Media.
Gatot Supramono,2010, Hak Cipta dan aspek-aspek Hukumnya,PT Rineka Cipta:Jakarta.
Hari Purwadi, Bahan Kuliah Mata Kuliah Hukum dan Perubahan Sosial, PDIH UNS,Surakata, 2011.