COPYRIGHTS
PROTECTIONS OF SONGS IN COVER VERSION ACTIVITIES
Rika Santina, Faisal Santiago,
Megawati Barthos
Universitas Borobudur, Indonesia
E-mail:
[email protected], [email protected],
[email protected]
|
KEYWORDS Songs: cover version; development |
ABSTRACT A phenomenon that is
currently rife is covering songs created by other people to be uploaded on
digital music media for commercial purposes without the creator's permission.
While copyright violations have occurred so far, often without any meaningful
legal settlement. One of the most visited digital music platforms by the
public is a video-based digital music media called YouTube. The results are
not copyright infringement if the creation and distribution of the Cover
Version through information and communication technology media is
non-commercial in nature and benefits the Author or related parties, if the
Author expresses no objection to such production and distribution. If the act
of covering a song does not meet the elements of Article 43 and Article 44,
it is a Copyright infringement. What Gen Halilintar did was copyright
infringement, because he made a cover of a song without fulfilling the above
elements. The author does not fully agree with the judge's decision to
completely reject Nagaswara's lawsuit, because what Gen Halilintar did was a
copyright infringement. The basis for the judge's consideration was that the
purpose of making cover came from subscribers. Many people cover songs
through YouTube, Gen Halilintar covered Nagaswara's �Lagi Syantik� song
without permission but still included the word cover and the song title. The
judge found that the claim for royalties from this song fell to Wahana Musik
Indonesia (WAMI) as the collective management agency, not to Gen Halilintar |
INTRODUCTION
The
development of globalization is also indicated by the development of advances
in technology, information, and communication. It can be seen from how easy it
is to get information in today's internet era. Technology particularly accesses
to existing technology plays a central role in catch-up growth (Thalib, 2016). It is very easy for us to get information and
communicate between cities, between countries, and even between nations via the
internet so that we are not late in getting information. The internet has become
the communication tool of choice-able for meeting the demands of the global
community for faster, more effective, and inexpensive communication as well as
the need for obtaining the most up-to-date information (Tim & Damian, 2002).
Intellectual
Property Rights are loaded with global values and economic content. Various
challenges come at the same time confronting a nation (Syafrinaldi, 2002). Global competition pushes the global economy into an era of creativity
and innovation. Industrial globalization requires society to produce products
that add value to economic activity (Fadhila, 2018). The creative economy can be explained as a production of added value
based on ideas, arising from the creativity of human resources, and based on
the use of knowledge, as well as cultural and technological heritage. The first
dictum of Presidential Instruction Number 6 of 2009 Concerning Creative Economy
Development instructs ministers and officials to: "Support the 2009-2015
Creative Economy Development policy, namely the development of economic
activities based on individual creativity, skills and talents to create
creativity and individual creativity that has economic value and influences the
welfare of the Indonesian people, with the goals, directions, and strategies as
contained in the Appendix to this Presidential Instruction. �
One
form of the creative economy of Intellectual Property Rights is Copyright, in
which Copyright is defined as a right that regulates intellectual works in the
realms of art, science, and literature in a distinctive form. The definition of
copyright in article 1 number (1) of Law Number 28 of 2014 Concerning
copyright, namely: "Copyright as the exclusive right of the creator that
arises automatically based on the declarative principle after a work is
realized in a tangible form without reducing restrictions by the provisions
legislation".
Copyright
is part of IP which contains economic rights and moral rights. Based on
economic rights, it allows an Author to exploit a copyrighted work in such a
way as to obtain economic benefits. Therefore, if a work is not managed in an
orderly manner based on a set of legal principles, it may result in a dispute
between the copyright owner and the copyright holder or other parties such as
copyright users who violate it. For its regulation, a set of effective legal
provisions is needed for all possible violations by those who are not entitled
to a person's copyright (Damian, 2014).
Copyright
in Indonesia has existed for a long time, starting with the issuance of Law No.
7 of 1987 concerning changes to Law no. 6 of 1982 concerning Copyright, then
changed to Law no. 12 of 1997, and then amended again into Law No. 19 of 2002
Concerning Copyright. And now the regulations regarding copyright protection
have been updated in Law no. 28 of 2014 Concerning copyright, the law covers
all types of intellectual activity in the current era (Sutikno & Jannah,
2019).
In
Article 40 of the Copyright Act, there are several types of works that are
protected, one of which is a song. In article 40 letter (d) works that receive
protection are songs. A song is a collection of beautifully arranged words.
Songs accompanied by music are made according to the musical composition and
rhythm and tempo so that the listener is immersed in the feelings that the song
conveys (Anak Agung Mirah Satria
Dewi, 2017). Songs are explained as one of the various types of literary works that
are special because in a song there is a tempo that involves all depths of
meaning (Triatmojo, Hamzani, &
Rahayu, 2021). The song is an artistic combination of successive tones or sounds,
temporal combinations, and connections (usually accompanied by musical
instruments) to create a musical combination that has unity and continuity
(contains rhythm) (Maharani, 2005).
A rife
phenomenon at the moment is covering songs created by other people to be
uploaded on digital music media for commercial purposes without the creators' consent.
While copyright violations have occurred so far, often without any meaningful
legal settlement. One of the most visited digital music platforms by the public
is a video-based digital music media called YouTube (Miladiyanto, 2015).
The
YouTube platform has a large audience since it can be accessed by all levels of
society without requiring paid subscription like other music platforms. Many
singers or creators take advantage of current hits to cover on their YouTube
channels and monetize their videos for commercial purposes without the
Creator's knowledge.
Not a
few YouTube creators in the music field have started their careers and have
made a profit. One of them is on the Youtube Channel named Roni Ramadhan and
Allya Rizki Putri who create cover song content using artists' songs that are
well-known in the country. Not only that, but they also commercialize it and
earn profits with or without the creator's permission. Authors should have full
rights to their song creations, by giving permission to cover singers and
getting an appropriate share of royalties from the results of their creations.
The owner
of the song has economic rights from the results of his copyrighted work to be
able to make a profit, because it is difficult for the copyright owner to find
out that an infringement has occurred on the copyrighted work of his song, he
can seek legal action by the Copyright Act (Utama, Titawati, &
Loilewen, 2019).
According
to the Bern Convention for the Protection of Artistic and Literary Works, copyright
protection is guaranteed for life, plus 50 years after the death of the right
owner. In article 57, the term protection for moral rights to creation is valid
without any time limit. In Article 58 of the Copyright Law, the term for the
protection of economic rights to song copyrights is as long as the creator
lives and lasts for seventy years after the creator dies, counting from the
first of January in the following year. Then, the protection has been valid for
fifty years since the first announcement (Situmeang &
Kusmayanti, 2020). When viewed from the definition of copyright in article 1 of Law number
28 of 2014, copyright is a right where the right arises automatically based on
a declarative principle. It means that copyright protection will be immediately
bound to the creator after the work is realized in tangible form, published,
and can be reproduced. Because a copyrighted work that has not been realized in
a real form based on article Forty-one point (a) of the Copyright Act, does not
receive protection under the Copyright Act. This means that a song that has
been realized in a tangible form will immediately receive protection from the
law (Kusno, 2016).
RESEARCH METHODS
The research is lawful so the focus is substantively on
discussing the law (to state the law), namely discussing normative statements;
and not talking about what was or what happened. Further explained as follows:
The approach used in this research is included in the
qualitative approach. This is because the process or activity of legal research
is argumentative and interpretive. Therefore, the form or writing model used
for reporting this research is argumentative writing which is the process of
conveying legal reasoning or legal argumentation.
Regarding data collection methods, as is usual in legal
research, data referred to as legal materials (legal materials or authorities)
are used. The legal materials in this study consist of primary, secondary, and
tertiary legal materials (primary authority, secondary authority, and tertiary
authority).
The types of interpretive techniques used to refer to interpretive
techniques known in the Science of Law, where in a broad sense the technique or
method is called legal discovery (rechtsvinding or
legal method). There are several types of approaches used in this research,
namely the conceptual approach, the statute approach, and the case approach.
RESULTS AND
DISCUSSION
Copyright
infringement which is a Bundle of Rights in song covers
In
songs and/or music attached moral rights consisting of maternity rights and
integrity rights as well as economic rights consisting of recording rights,
duplication rights, translation rights, adaptation, arrangement and
transformation rights, distribution rights, publication rights, and the right
to communicate songs and/or music. All of these rights are attached to the creator
and cannot be violated. Other parties are prohibited from ignoring moral rights
and are prohibited from exercising the economic rights of creators and/or
copyright holders without the permission of the creator and/or copyright
holder. It should be emphasized that ignoring the moral rights and economic
rights of creators and/or copyright holders is a form of copyright
infringement.
Song
and/or music is art related to a combination of sounds associated with beauty
as well as an expression of thoughts and feelings (Mutiari,
1996). Etymologically, songs and music
have different meanings. A song is a poem that is recited according to a
certain tone, rhythm, rhythm, and melody to form harmony. Meanwhile, music is a
sound that is arranged in such a way that it contains harmony, especially from
the sound produced by tools that can produce rhythm. Even though song and music
are etymologically different, in the Copyright literature there is no
distinction between song and music. Copyright recognizes songs and/or music in
one definition, such as musical works. Under international IPR protection,
songs and music are called musical works.
Copyright
protection appears automatically when the work is expressed in a tangible form.
According to the author, the form of expression of a musical work does not have
to be in a physical form. If a musical work can be read, heard, seen, and
enjoyed by other people, then the musical work will automatically be protected
by copyright without being based on creation registration. Registration of
creations at the Directorate General of Intellectual Property (Ditjen KI) is only declarative in nature.(Anak
Agung Mirah Satria Dewi, 2017)
Attached
and cannot be lost. The concepts of adaptation, arrangement, modification, and
transformation are the concepts that form the basis of the cover version
concept. 40 that is done in a cover version or song cover is to add certain
creative contributions, such as adding new harmonies and rhythms, rearranging
musical notes, including writing and retranslating a piece of music into a
different style of music. The work resulting from the creator's creative
contribution is protected by Copyright as long as it does not interfere with
the moral rights and economic rights of the creator. Then, the question is what
is the limit on the act of covering a song being said to interfere with the
creator's rights or not?
In
the process of creating musical works so that they can be enjoyed and heard by
the public, creators can carry them out themselves or involve other parties. If
the creator carries out the production of the song/music independently, all
moral rights and economic rights over the song/music are fully owned by the
composer. Meanwhile, if the creator involves other parties, it means that the
creator has transferred some of his rights.
In
the music industry, songwriters may be owners of record companies (record
producers). If the songwriter is not the owner of a record company, the
composer usually approaches the record producer and offers his song to be
recorded. However, sometimes the record producer also requests or orders songs
from the creator. Then if the record producer is interested in the songs
offered by the composer, the record producer will agree with the songwriter.
After
an agreement has been reached between the songwriter and the record producer,
in this case the record producer has mechanical rights (the right to reproduce
a work). Furthermore, the producer will look for performers (singers, music
arrangers, or arrangers). Just like songwriters, performers also make deals
with song producers. And after an agreement has been reached between the three
parties (composers, record producers, and performers), the song or music is
recorded to produce a sound recording or master song, and the master recording
is attached to the record producer's rights which are called sound recording
rights, and the rights of performers called performance rights.
Then,
the master songs are reproduced in the form of cassettes, CDs, VCDs, or DVDs,
which are sometimes done by the sound recording producer (as well as the
distributor) himself. However, there are record producers who are not
distributors at the same time, they must involve other parties as distributors.
In this case, there are various kinds of agreements between sound recording
producers and song recording distributors, including:
a)
Break-up trading, namely the producer
duplicates the recording of songs in the form of cassettes or CDs, then the
cassettes or CDs are sold (broken) to distributors and then the distributors
market them in the area under their authority.
b)
Consignment, also called point of sale.
Namely sound recording products that are reproduced by producers and given to
distributors to be sold or marketed. For every record sold, the distributor
gets a commission.
c)
Buying and selling of labels, in which the
producer prints a label for sound recording products and sells the label to the
distributor and at the same time lends the sound recording master (song master)
to the distributor to be reproduced by the number of labels purchased by the
distributor from the producer.
d)
Profit-sharing system, namely producers
and distributors work together in duplicating sound recording products, while
distributors are responsible for marketing them. Profits are shared according
to the agreement.
After the sound
recording products have been reproduced and are in the hands of distributors,
the sound recording products are distributed to sales agents, then forwarded to
retailers or sales shops until they reach the public or consumers. This
distributor agent has the distribution rights to the song creation. Sometimes,
the artwork of the music or song is also published through broadcasting
institutions either with or without cable. Like on television, radio, and the
internet. This broadcasting institution has the right to publish or
announcement of the work. Not infrequently, the publication of musical works of
art via the internet usually utilizes social media such as YouTube, Facebook,
Instagram, Twitter, and so on.
From a juridical
point of view, the entire process and legal relationship above is entirely a
series of births of Copyright protection and concepts of transferring the
economic rights of songwriters and related rights holders, especially record
producers (producers of phonograms), performers, distributors and broadcasting
institutions.
All the actions
taken by the cover actors above have the potential to violate copyright. In
covering songs, cover actors have violated the creator's moral rights (modification
and mutilation of creation) and exercised the creator's economic rights
(arranging, recording, publishing, and communicating creations) which should
have obtained the creator's permission. An explanation of how the activities
mentioned above can potentially violate copyright will be presented as follows.
First,
modification of creation. According to Article 5 Paragraph (1) letter e of the
Copyright Law, in essence, it states that the moral right is eternally attached
to the creator to defend his rights in the event of distortion of creation,
mutilation of creation, modification of creation, or things that are
detrimental to his self-honor or reputation. Such a right is a right of
integrity, namely the right of the creator not to change his work. This right
is eternal for the creator himself and can only be deviated by the will of the
creator. According to the author, cover actors on social media often modify or
change musical works, be it genre, tone, rhythm, melody, or even lyrics. The
creator, in this case, has the right to defend his rights if there is a
modification to his musical work that harms his honor and reputation by suing
the court accompanied by evidence that his honor and reputation have been
harmed by the performer of the cover.
Second, the
mutilation of creation. As with modification of creation, mutilation of
creation is part of the creator's moral rights. The creator has the right to
defend his rights from activities that are considered detrimental to his
self-respect and reputation. If the mutilation of creation in a song cover on social media harms the creator's self-respect and
reputation, then the creator can sue the cover actor along with evidence that
his self-respect and reputation have been harmed by the mutilation of his work.
Third, parties who
record songs and/or music in cover song activities on social media have
exercised the economic rights of creators or copyright holders. There are 2
(two) versions of cover songs, namely the same version as the original song and
a different version from the original song. Recording the same version as the
original song, the cover performers do not change any elements of the original
song but are sung by other parties who were not given the performing rights by
the creators. While recording a different version from the original, namely the
performer changes the elements of the song and/or music such as the melody,
tone, rhythm, and lyrics of the original song. Different versions of the
original song are then sung by parties other than the creators or parties who
are given the performing rights. This is a violation of the economic rights of
the creator, especially the right to copy if the author or copyright holder
does not have permission.
Fourth, in song
cover activities, not infrequently the cover actors also translate the lyrics
of the song. As explained above, music and lyrics are protected as one unit. If
there is a party that 'injures' the rights to the lyrics of a piece of music,
he also directly infringes the copyright on that piece of music. The activity
of translating a piece of music is an economic right of the creator based on
Article 9 Paragraph (1) letter c. What is expected from the activity of
translating this musical work is that the creator gets economic benefits, in
this case, royalties. So that everyone who exercises the economic rights of the
creator or copyright holder must obtain the permission of the creator or
copyright holder.
Fifth, adapting,
arranging, and transforming musical works. According to Vibhaw
and Venkataraman, "adaptation means any arrangement or transcription of
the word and this is done by adding accompaniments, new harmonies, and new
rhythms including tracing it for different musical forces." In carrying
out adaptations, cover actors need intellectual intelligence so that in Article
40 Paragraph (1) letter n jo Article 40 Paragraph (2) of the Copyright Law
protects adaptation, arrangement, modification, and transformation activities
into new copyrighted works as long as they do not reduce copyright on creation.
original. Not reducing the copyright of the original work according to the
author is not interfering with the reasonable interests of the creator, in this
case not violating the moral and economic rights of the creator. Or in other
words, the moral rights and economic rights of creators are not lost. What is
meant by the reasonable interests of the creator are interests that are based
on a balance in enjoying the economic benefits of a work.
Sixth and seventh,
namely performing music works by parties other than those who are given the
right to perform by the creators and communicating them through social media
such as YouTube, Twitter, Instagram, and so on. If this is not accompanied by
permission from the creator, then this activity violates the economic rights of
the creator.
Based on the
explanation above, song covers have the potential to violate copyright because
they have violated moral rights and exercised the economic rights of creators
or copyright holders. But on the other hand, copyright is known as the Fair Use
Doctrine which causes copyright not to be fully owned by the creator or
copyright holder. Cover songs on social media do not violate copyright as long
as they do not interfere with the reasonable interests of the creator or
copyright holder. An explanation of the fair use doctrine will be explained in
the next section.
Cover
Version as a Form of Song Copyright Violation According to Law Number 28 of
2014 Concerning Copyrights in Decision Number 910 K/Pdt.Sus-HKI/2020
Morally,
a form of copyright infringement on songs is without the permission of the
creator, doing: (UUHC, No. 28 TAHUN 2014)
1)
Do not include the name of the creator in
connection with the use of his work
2)
Doing distortion, mutilation, and
modification of works or anything that causes losses in the form of reduced
honor and reduced reputation of the creator.
From
an economic point of view, the form of copyright infringement on songs is
commercial and without the permission of the creator, doing: (UUHC, No. 28 of
2014)
According
to the article above, it can be seen that what can be known as a violation of a
work of creation is if:
1)
There is exploitation (distribution,
duplication, and distribution) of a work that is protected for the commercial
purpose of a copyrighted work without permission or obtaining a license from
the owner or his heirs. This includes plagiarism.
2)
Elimination of the creator's identity in
his work.
3)
Exchange or modification of the creator's
identity in works made without the permission of the copyright owner.
4)
Modify or change the title of a work
without the permission of the creator or his heirs.
In
article 98 paragraph (1) it is explained that the Transfer of Copyright to all
Works to other parties does not reduce the rights of the Author and his heirs
so that they can sue anyone who deliberately and without the rights and without
permission of the Author who violates the moral rights of the Author according
to as referred to in Article 5 paragraph (1).
In
article 99 paragraph (1) it is stated that "The creator, copyright holder
or owner of related rights has the right to file a lawsuit for compensation to
the Commercial Court for violations of copyright or related rights
products."
Even
though copyright has a special or special character, it does not mean that it
is without restrictions. As a general rule, these limitations are stipulated in
the articles of law as is the case with other property rights, but at certain
points, these restrictions are also subject to more important purposes. In
general, the use of copyright in a particular work is considered significant
for the public interest, its use is limited so that an equal harmony arises
between private and public interests.
Article
26 of the Copyright Law states several limitations on copyright protection, in
which the protection does not apply to several points, namely:
1)
The use of short excerpts of Works and or
Related Rights products for reporting actual events is intended only to provide
actual information
2)
Reproduction of Works and or Related
Rights products is only for the benefit of scientific research
3)
Reproduction of Works and/or Related
Rights products is only for teaching purposes, except for performances and
Phonograms that have been Announced as teaching materials; and
4)
Use for educational and scientific
development purposes which allows a Work and/or Related Rights product to be
used without permission from Performers, Phonogram Producers, or Broadcasting
Institutions.
In
terms of restrictions on the use of copyright or the Anglo-Saxon system better known
as Fair Use, articles 43 and 44(1) letter a of Law Number 28 of 2014 provide
several limitations which are actions that are not a form of copyright
infringement, covering the following:
1)
Announcement, distribution, communication,
and/or duplication of the state emblem and national anthem according to their
original nature
2)
Announcement, distribution, communication,
and/or duplication of all things done by the government or on behalf of the
government unless stated to be protected by laws, statements on the said
copyrighted work, or when the said copyrighted work is announced, distributed,
communicated, and/or doubling
3)
Retrieval of actual news, either in whole
or in part from news agencies, Broadcasting Institutions, newspapers, or other
similar sources with the determination of the source must be mentioned in full,
or
4)
Production and distribution of copyrighted
content through information and communication technology media that are
non-commercial in nature and/or the creator or related party who benefits, or
the creator of the work says he has no objection to the creation and
distribution of the created content.
5)
Reproduction, announcement, and/or
distribution of portraits of the President, Vice President, former President,
former Vice President, National Hero, heads of state institutions, heads of
ministries or non-ministerial government agencies, and/or regional heads
concerning dignity and fairness according to the rules Constitution.
�If a copyrighted work, especially art or
literature, is widely accepted and liked by the public, then this gives a sense
of pride and satisfaction to the creator. (Hamzah, 2017) In essence, there are
two important points in moral rights, namely:
1)
The right of recognition of the work,
namely the right that comes from the creator to be announced as the creator of
his creation, so that no other party can claim the work of creation.
2)
Integrity rights, namely rights that
cannot be contested and the right to submit objections to the deviation of the
creator's work or other modifications or actions that can degrade the quality
of the copyrighted work (Margono)
Any
person who produces a cover of a song by covering a song belonging to someone
else then publishes it on a social media network such as YouTube.
Fundamentally, the Copyright Law is not familiar with the terminology of cover,
but with the terminology of duplication, which is implicit in the provisions of
Article 1 number 12 of the Copyright Act, which reads: "Reproduction is
the process, act, or method of duplicating one copy of a work and/or a
phonogram. or more in any way and any form, permanently or temporarily.�
In
the case of this study, the form of copyright infringement committed by Halilintar Anofial Amid and Lenggogeni Umar Faruk as the Defendant was without permission
and without affixing the name of the creator or copyright holder:
1)
Without permission to modify the Work by
changing the lyrics of the song Lagi Syantik in the Defendant's version.
2)
Without permission, committing an offense
in the form of fixing and duplicating the results of modifications to
Plaintiff's copyrighted work, by recording the sound (making a music master) of
Defendant's version
3)
Without permission, recording images
and/or loading the Defendant's version of the song Lagi
Syantik Video Clip and communicating the creation via
the Gen Halilintar YouTube account belonging to the
Defendant without affixing the name of the creator or copyright holder
(Transmission of work via cable or other media other than broadcast media, so
that it can be accepted by the public) and then distribute the defendant's
version of the song creation, namely by circulating and or distributing the
creation and or Related Rights product which results in distortion of the
copyrighted work.
4)
Deliberately omitting information on the
name of the Author or Copyright Holder by Article 7 paragraph 3 of Law Number
28 of 2014 concerning Copyright.
To
see if a song falls under the category of copyright infringement and the cover
version phenomenon, please refer to Section 44.1 Clause Elements. A copyrighted
work and/or related rights product is termed copyright infringement if it is in
whole or in part proper and the source is noted or otherwise fully and fully
included. not.
1)
Which does not harm the reasonable
interests of the Author or Copyright Holder in terms of Education, research,
writing of scientific works, preparing reports, writing criticism, or reviewing
a problem
2)
Security is also the administration of
government, legislature, and judiciary
3)
Lectures that are only for education and
knowledge, or
4)
With the provision that it will not cause
harm to the Author's reasonable interest in the Show or performance which is
free of charge.
The
elements in these articles relate to interests in making cover versions of
songs, including detailed sources, not harming the reasonable interests of the
creator, and not for the sake of commercial interests.
About
publication via social networks, it is also important to pay attention to the
points contained in the provisions of Article 43(d), which is not a form of
copyright infringement if the production and publication of copyrighted content
through social networks with information and communication technology that are non commercially and or in nature the Creator or the party
concerned benefits, or as long as the Creator does not object to the act of
producing and publishing said content. It can be concluded that re-singing
other people's songs without the permission of the creator, or the consent of
the rights owner of the commercial nature, is considered an act of copyright
infringement so when an individual wants to publish another person's
copyrighted work that is commercial in nature, in a modified form, arranged,
and or sung again, it is necessary to obtain permission from the creator or
related rights holder. As long as the cover version of a song does not complete
all the elements contained in Article 43 and Article 44, then it is not a form
of copyright infringement.
Denial
of economic rights and moral rights can degrade the motivation of Creators and
Related Rights owners to continue to create and innovate. The erosion of
creator motivation will have a major impact on the decline of large-scale
creativity in Indonesian society. Reflecting on developed countries, it was
found that adequate protection of copyrights has succeeded in significantly
advancing the growth of the creative economy and providing real participation
for the economy and people's welfare.
In
the decision at the first level, namely in decision number 82/Pdt.SusHak Cipta/2019/PN.Niaga.Jkt.Pst. The judge
gave several basic considerations in making his decision, namely:
Considering
that based on the evidence submitted by each party as mentioned above, and
linked to the statements of the witnesses or the opinions of experts at the trial,
the panel of judges will consider the following grounds:
Considering
that as evidence of P-2 Certificate/Recording Letter No. EC00201994884 with the
date of application July 5, 2019, the title of creation: Lagu
Syantik, which was announced for the first time on
the twenty-third of March two thousand and eighteen in Jakarta, with the
registration number 00145341 issued by the Minister of Law and Human Rights
Directorate General of Intellectual Property, it is proven that the plaintiffs
have exclusive rights that are protected by law. Besides that, as based on
Article paragraph (1) of Law Number 28 of 2014 Concerning Copyright, copyright
is an exclusive right that appears automatically based on the declarative
principle of the creator after the copyrighted work is manifested in tangible
form without reducing the limitations by the provisions of the law.
Considering,
there has been a court fact that the actions taken by the Defendants were a
cover of the song "Lagi Syantik"
created by the Plaintiffs and was carried out without the permission of the
Plaintiffs. This is by evidence P-1. Then the cover recording of the song
"Lagi Syantik"
was circulated via YouTube media by the defendants as evidenced by P-18. The
Defendants still include the word Cover and include the title of the song
"Lagi Syantik".
Considering
that covering songs or re-singing songs belonging to famous artists or singers
with versions of our voices with or without musical accompaniment is currently
being carried out by many Indonesian people through the YouTube application.
This can be seen through evidence T-1.2.7 in the form of a collection of covers
for the song "Lagi Syantik".
Where through this evidence it was not only the defendant who covered and
changed the lyrics of the song "Lagi Syantik", but many others as well.
Considering
that on the basis that cover songs are currently a trend in society, both at
home and abroad. So to find out whether the cover of the song "Lagi Syantik" violates the
law, the Panel of Judges returned to Law No. 28 of 2014 concerning Copyright
were to protect copyright owners, the court can impose compensation as
regulated in article 1 paragraph (25) Law Nomor 28 of
2014 concerning Copyright which reads: "Compensation is the payment of an
amount of money charged to perpetrators of violations of the economic rights of
creators, copyright holders and/or related rights owners based on court
decisions in civil or criminal cases that have permanent legal force over
losses suffered by Authors, Copyright Holders and/or Related Rights
owners."
Considering,
that to strengthen the purpose of making the cover for the song "Lagi Syantik" coming from a
subscriber, at trial the defendants submitted evidence T-1.2.8 in the form of a
printout of requests from fans. And buti T-1.2.10 the
flash disk contains collective evidence of a YouTube link covering a more
beautiful song and a subscriber's request to GEN HALILINTAR to cover the song.
And
at this cassation level, the Judge again decided to reject the Plaintiff's application,
with the decision: Rejecting the cassation request from the Cassation
Petitioners, namely as follows:
1)
PT NAGASWARA PUBLISHERINDO or better known
as NAGASWARA, YOGI ADI SETYAWAN which is also better known as YOGI RPH, PIAN
DARYONO which is also better known as DONALL;
2)
To punish the Cassation Petitioners to pay
court costs at the cassation level in the amount of Rp. 5,000,000.00 (five
million rupiahs).
By
doing cover activities, it is possible to upload them to online social media.
What about the commercial system, are their advertisements in the uploaded
cover, if there are no advertisements then it is social, if there are
advertisements it means that he takes every commercial activity from the upload
process. When there is an upload and the upload is known by the creator it is
also a kind of approval for covering activities. What's more, it turns out that
the creator already gets by the royalty distribution system the results of the
collection from the cover. WAMI (Wahana Musik Indonesia) must collect and distribute royalties. The
form of distribution that is known to the creator, that there is a second,
third and subsequent covering activity, and that generates revenue is one form
of approval, especially if he has received royalties.
In
the judge's consideration of the testimony of witnesses from the respondent who
stated that the purpose of making the cover of the song Lagi
Syantik came from a subscriber's request so that it
could be seen and enjoyed by people of all ages, this is also not quite right.
This is because, even though the original purpose of making a cover version of
the song Lagi Syantik was
the goal, as said by the witness, it was still modifying the song in the form
of covering other people's songs, fixing the creation and then communicating
the creation, without asking permission first, and eliminating the name of the
creator or copyright holder is related and commercialized, this, of course,
violates the exclusive rights of the creator. It is inappropriate to do from a
moral standpoint. The law does not prohibit covers from being made by any party
as long as the motive for making them is whether they comply with the law and
have good intentions or not. In making cover songs, it is mandatory to pay full
attention to the rights of the creators whose works are used. Song cover
creators must pay attention to the moral rights of the creator, both when the
song cover becomes a commercial or non-commercial work.
CONCLUSION
The use of
copyrighted songs and/or cover songs on social media networks is not a
violation of moral rights if it is done not for commercial purposes and changes
are not made to the creation according to the provisions of Article 8 UUHC, but
it is an act that violates economic rights if used for commercial activities
without permission from the Author or Copyright Holder as according to the
provisions of Article 9 UUHC. Second, legal protection for creators of
copyrighted songs and/or music that is sung (cover songs) on social media
networks can be carried out through legal action, namely through arbitration or
court dispute resolution Article 95 Paragraph 1 UUHC through civil lawsuits
submitted to the Commercial Court and criminal charges filed with the District
Court, as well as through other actions through features provided by social
media networking sites such as YouTube Content ID and content identification on
Soundcloud so that content that violates copyright can be closed.
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