Legal Literacy - This article discusses the case of misappropriation of the copyright of the song "Karna Su Sayang" in 2018, which was caused by the creator not registering their work. The author discusses the role of the state in handling this case, the perspective of intellectual property rights and international law, and the method of dispute resolution through private law and theWorld Intellectual Property Organization (WIPO) Mediation & Arbitration Centre.

In 2018, there was a case of misappropriation of the copyright of the song "Karna su sayang" which was motivated by the creator not registering their work with the Directorate General of Intellectual Property, so that a Malaysian citizen registered the work and now owns it. The nature of copyright is first to declare, meaning that the state is obliged to protect whoever announces it first.

An act that is not considered a copyright infringement is regulated in Article 43 letter d Law Number 28 of 2014 concerning Copyright, which states that the creation and dissemination of copyright content through information and communication technology media that is non-commercial and/or benefits the creator or related parties, or the creator does not object to the creation and dissemination. So, if the act is carried out commercially, especially if the creator objects, it is clearly a copyright infringement.

The reason for fair use or reasonable use used in this case is not appropriate, because fair use can only be applied if it does not harm the legitimate interests of the creator or copyright holder.

Method of dispute resolution in cases like this is through private law, so the role of the state here is as a rule maker that protects the rights of creators because this concerns the protection of rights that are personal in nature. Thus, a creator is expected to have the awareness to register their copyright if it has entered the commercial realm which is prone to disputes or conflicts. In addition, legal counsel can help write a letter informing of the possibility of a conflict arising, commonly referred to as a “cease and desist letter” to copyright infringers of the song.

Dispute Resolution in the Perspective of Intellectual Property Rights and International Law

From the perspective of Intellectual Property Rights, if a copyright infringement is committed by a person from another country, the infringement lawsuit must be brought to the court of the country of the person who committed the infringement and will be prosecuted under the copyright law provisions of that country's jurisdiction, not under Indonesian Copyright Law. Copyright law is territorial in nature and applies within the national territory.

Specifically, if the infringement is carried out online as in the case of the song Su Sayang, the creator or copyright holder can send a notification to the service provider platform itself, for example in this case 'TuneCore' regarding material claimed to be infringing or subject to infringing activity posted online using the 'TuneCore' service by completing the DMCA Notification of Claimed Infringement to be sent to the designated 'TuneCore' Copyright Agent. After receiving a valid notification, 'TuneCore' will immediately respond by facilitating the resolution of the problem, namely removing or disabling access to the material claimed to be infringing or subject to infringing activity.

Because this case also involves cross-border issues, it can be resolved by international law. From the perspective of International Law, Indonesia should use the dispute resolution procedure through the World Intellectual Property Organization (WIPO) Mediation & Arbitration Centre because WIPO has principles to protect Traditional Knowledge and Traditional Cultural Expression.

An effective way to deal with this violation is through arbitration or mediation. The benefit of arbitration and mediation is that the parties involved can still monitor the dispute resolution process. Because such things can help maintain good business relationships with other companies that may continue to collaborate or agree to a licensing agreement/agreement in the future. It is a good practice to include mediation and or arbitration clauses in licensing agreements.

*This article is the personal opinion of the author and does not represent the views of the editorial team Legal Literacy Indonesia.