MINISTRY OF RESEARCH, TECHNOLOGY AND HIGHER EDUCATION

UNIVERSITAS GADJAH MADA

FACULTY OF LAW

THE APPLICATION OF INDONESIAN COPYRIGHT LAW TO A TRANSNATIONAL

COPYRIGHT INFRINGEMENT CASE AND ITS VIABLE LEGAL REMEDY
SUBMITTED AS PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE
SARJANA HUKUM
Albertus Aldio Primadi
13/344090/HK/19379
Yogyakarta
2016

TABLE OF CONTENTS

I.

BACKGROUND.......................................................................................................2

II. RESEARCH QUESTIONS:.......................................................................................3

III. OBJECTIVES..........................................................................................................4
IV. ORIGINALITY OF RESEARCH................................................................................4
V.

BENEFITS OF RESEARCH......................................................................................4
A.

Theoretical Benefits....................................................................5

B.

Practical Benefits.......................................................................5

VI. THEORETICAL REVIEW........................................................................................5

A.

Copyright.................................................................................5

B.

Infringement.............................................................................6

C.

Transnational Infringement...........................................................7

VII. RESEARCH METHODS...........................................................................................8

TYPE OF RESEARCH.....................................................................8

A.

1. Type of Data..........................................................................8
2. Data Collection.....................................................................9
VIII.

OUTLINE.........................................................................................................9

I.

Background
The divergence of culture in Indonesia is on the hands of its artists. This includes
musician. By writing various musics, those musicians significantly contribute to
Indonesias uniqueness and diversity in culture. However, musician is prone to the
infringement of its copyright. Every musician is entitled to the protection of its
copyright.1 This right is an exclusive right for the Author of its product. 2 This means,
if a musician gave birth to a song, that musician is automatically granted an
exclusive right over that song.
Indonesia shall be acting as the guard to protect those musicians from the
infringement of its copyright. When an infringement is apparent, then the State shall
take actions to punish that infringer. This is reflected through the enactment of UU
No. 28 Year 2014 on Copyright. It is obvious that the State has the ultimate power to
punish the infringer if the infringement occurs in the territory of Indonesia. However,
there are cases where the infringement does not occur in Indonesians territory.
That is what happened in Ariel Case. Ariel is a well-known vocalist from a sterling
Indonesian band, Peterpan. One of its top song Tak Bisakah" was being allegedly
copied by Indias song titled as Kya Mujhe Pyaar Hain. Even though that is a clear
violation to the Indonesian Copyright Act, it is still a question whether Indonesian
Law can be applied to a transnational infringement case.
The purpose of this research is to reveal the answer to that question. The Author shall
elaborate on this research the mechanism as to how Indonesian Copyright Law can

1 UU No.28 Year 2014 on Copyright, Art. 2(a)

2 Nainggolan, Bernard. Pemberdayaan Huku Hak Cipta dan Lembaga Manajemen Kolektif,
(Bandung, PT Alumni 2011), p.9

be extended to other jurisdiction. The Author will also provide the viable measure for
Ariel or any other person in the same position of Ariel to seek legal remedy.
II.

Research Questions:
That being said, the Author will dedicate its time and effort to seek the answers for
the following question:
1. Under what condition the application of Indonesian Copyright Act can be extended
to infringement that is occurred in Indias territory?
2. What are the viable measures for Ariel to seek legal protection?
III.

IV.

Objectives
1. To understand the Application of Indonesias Copyright Act
2. To analyze the possible legal remedy if the infringement of copyright is transnational
Originality of Research
The Author is unable to find another research that share the same topic with this
paper. Originality can be described as something that has not been conceived of or
done before by someone. While it is true that there are a lot of researches that
focusing on infringement or Indonesian Copyright Law. However, none of them is
talking about the application of Indonesian Copyright Law on Transnational
Infringement Case, in particular to the infringement of a song.
The closest research paper that possess similar topic with Author is Perlindungan
Hukum Hak Cipta Terhadap Karya Cipta Lagu dan Musik dalam bentuk Ringtone
pada Telepon Seluler" by Tommy Hottua Marbun in 2012. But the aforesaid research
paper did not explain about the case of Transnational Infringement, only about the
protection of copyright in Indonesia.
Thus, bearing in mind that the spotlight of this research paper is on the Transnational
Infringement case, and most of the research paper is only discussing about the
infringement that occurred in Indonesian Territory, the originality of this research
paper stands firmly.

V.

Benefits of Research
Through this research, it is expected to gather the following benefits:
A.

Theoretical Benefits
The results of this study are expected to provide benefits for education, especially
science Educational Technology in the area of development, especially the library as
a learning resource center and information that can provide excellent service
(Service Excellence) to pemustaka as well as the utilization and development of
information media diperpustakan in contributing erhadap improving the quality of
learning, especially in the completion of scientific papers.

B.

Practical Benefits
The results of this study are expected to provide benefits to all parties involved in
this research, including:
a. To enlighten any musician that experience the exact same case, so that they
will be able to find viable legal remedy;
b. To give inputs for any legal professionals that is also seeking the answer for
their questions related to this topic;
c. To be used as a reference for students in the development of science and
technology, education, especially in the development of the library resource
center, especially the use of repository as a medium to facilitate the completion
of the writing of thesis; and
d. Hopefully this research can be used as a reference for other researchers to be
the same theme but with different viewpoints.

VI.

Theoretical Review
A.

Copyright

1.

Definition
Copyright is a legal term used to describe exclusive rights granted to authors, artists
and other creators for their creations. Copyrights allow for the exclusive right of an
author or a copyright holder to publish or reproduce their work. This right is granted
automatically following the creation of a work. The kinds of work protected by
copyright laws in Indonesia are in the field of science, arts, and literature.
2. Rationale of the Implementation of Copyright
Copyright is important to creators like writers and artists as well as those such as
publishers that own rights, as it provides them with a legal right of ownership of the
work that they produce.
This means that creators of an original piece of work can have some control over
how it is used, which is not only fair but necessary for them to make a living from
their talent and efforts. When they have the means to make a living from their work
then they can continue to invest their time, and, in the case of publishers, their
money into the production of new work.

B.
1.

Infringement
Definition
Copyright infringement is the use of works protected by copyright law without
permission, infringing certain exclusive rights granted to the copyright holder, such
as the right to reproduce, distribute, display or perform the protected work, or to
make derivative works. The copyright holder is typically the work's creator, or a
publisher or other business to whom copyright has been assigned. Copyright holders
routinely invoke legal and technological measures to prevent and penalize copyright
infringement.

2.

Sanction for infringement under Indonesian Copyright Law

The Indonesian Copyright Law allows the victim to submit claim to sought
compensation to the Commercial Court.3 The victim may also request the Court to
seize the copied product,4 as well as requesting to ban the distribution of the copied
product.5

C.

Transnational Infringement
1. Definition
According to Asako Matoba,6 there are 5 situations where transnational infringement
may occur:
a. Where a person based in country B infringes a patent right registered in country
A in country A.
b. Where multiple infringers individually infringe any parallel patent rights in
countries where the relevant patent rights have been registered
c. Infringement of a unified intellectual property right in multiple countries
d. Where it is not easy to locate the place of infringement"
2.

Indonesian Copyright Law on Transnational Infringement

The Act clearly stipulates that the application of the Act can be applied to:

3 Art. 99(1) on Indonesian Copyright Law

4 Art. 99(4)(a) on Indonesian Copyright Law
5 Art. 99(4)(a) on Indonesian Copyright Law
6 Matoba, Asako. Cross-border Injunctions to Preclude Defendants from Infringing Intellectual
Property Rights. 2010. IIP Bulletin 2011 Vol.20. p. 2

a. All works and products related rights of citizens, residents, nd the Indonesian
legal entity;
b. All works and products related rights are not a citizen of Indonesia, Indonesian
residents, and not the Indonesian legal entity for the first time made
announcement in Indonesia;
c. All works and/or products related rights and users of works and/or products
related rights are not a citizens of Indonesia, Indonesian residents, and not the
Indonesian legal entity provided that:
1. The country has a bilateral agreement with the Republic of Indonesia
concerning the protection of Copyright and Related Rights; or
2. The country and the Republic of Indonesia is a party or participant in
multilateral agreements same protection regarding Copyright and Related
Rights.
From the bolded paragraphs, it can be concluded that the application of Indonesian
Copyright Law can be extended to other country only if the said country has a
bilateral agreement with Indonesia or mutually participated in a multilateral
agreements regarding Copyright and Related Rights.
VII.

RESEARCH METHODS
Research Methods is guidance for a scholar to allow it ability to study and
comprehend the surroundings that he/she faced.7 The Author realizes that without a
clear guidance, this research paper will not be able to be formed. Thus, for the
purpose of this research, the Research Methods are the following:
A.

TYPE OF RESEARCH
This research paper will use normative legal approach to study the relevant law as
well as precedence. Normative legal research method is a type of research that
focuses on legal norms that is derived upon national legislative framework and court

7 Soekanto, Soejono. Pengantar Penelitian Hukum. Jakarta: Universitas Indonesia. 1986 (UI-Press),
p.6

decisions.8 This type of research fits perfectly to the purpose of this research. This is
because the questions to the research questions can only be answered through
thorough analysis regarding Indonesian Copyright Law and also Indonesians Court
decisions regarding this particular matter.

1.

Type of Data
a. Primary Data
Primary Data is a data that is directly gathered from field observation. The Author
shall collect this Data from relevant authorities. Such as the Ministry of Law and
Human Rights in Yogyakarta, Studio Recording, Copyright Officials. The method to
collect this data will be through Interviews and Field Observation.
b. Secondary Data
Secondary Data is extracted through library-research. This data will play essential
role in this paper. This is because the Author will collect numerous vital data such as:
Court Decisions regarding the application of Indonesian Copyright Act in
transnational

case, Commentary by scholars

regarding

the Transnational

Infringement case, etc.

2. Data Collection
a. Interview
In order to retrieve the relevant data that will be use for this research, the Author will
initiate interview to the reliable sources. The reliable sources is including but not
limited to the Ministry of Law and Human Rights in Yogyakarta, Studio Recording,
Copyright Officials, or even Copyright Experts.
b. Documentary Study
The Documentary Study in this case will focus on the Court Decisions regarding the
application of Indonesian Copyright Act in transantional case, Commentary by
Scholars regarding the Transnational Infringement Case.
8 Nasution, Bismar. Metode Penelitian Hukum Normatif dan Perbandingan Hukum. p.1

VIII. Outline
TITLE:THE APPLICATION

OF INDONESIAN

COPYRIGHT LAW

TO A

TRANSNATIONAL

COPYRIGHT INFRINGEMENT CASE AND ITS VIABLE LEGAL REMEDY"

I. CHAPTER I. INTRODUCTION
A. Background
B. Research Questions
C. Objectives of Study
D. Originality of Research
E. The Benefits of Study
II. CHAPTER II. THEORETICAL REVIEW
III.CHAPTER III. THE METHODS OF RESEARCH
IV. CHAPTER IV. RESEAR-CH RESULT & ANALYSIS
A. The condition where the application of Indonesian Copyright Act can be extended to
infringement that is occurred in Indias territory
B. The viable measures for Ariel or any similar person in Ariels position to seek legal
protection.
V. CHAPTER V. CLOSURE
A. Conclusion
B. Recommendations
VI. BIBLIOGRAPHY
VII.
APPENDICES
APPENDIX 1
APPENDIX 2

10