Principle of "fair use" is not a justification for piracy 

By : Dr. Iman Sjahputra., SH., SpN. LL.M

In Indonesia, sales of pirated copyrighted works in the optical disc medium either DVD or VCD are conducted blatantly, ranging from the store in the shopping center (mall) to retail traders alongside the road. This is not surprising considering the huge price difference between the pirated and the original DVD/VCD. The price might vary from 1/10 to 1/20 of the original.

Besides from the price, copying optical disc does not require any special skills, and only needs a simple computer. Indonesia suffered a lot from this piracy. The traders might obtain billions of Rupiahs without paying a dime to the state. Indonesian might also loss their creativity to create their works due to the massive piracy, not to mention the material loss of Indonesian copyright holder itself.

We might find it seldom that the police captured several traders selling pirated DVD/VCDs. Even if the police captured the infringers, they always use the argumentation of “fair use” and “public domain” in copyright law as their shield without even understanding the terms.

The philosophy of Law No. 19 Year 2002 concerning Copyright (“Copyright Law”) is to protect the owner of the copyright for their creation, while providing a “stimulus” for them to keep creatively creating their works. The concept of “fair use” and “public domain” itself are very limited to certain things. In the Copyright Law, the copying of a copyrighted work is only allowed if the sources are fully cited, and the copying is intended for personal use (article 15 (g) of Copyright Law). It is obvious that the conduct of these traders are not included as an exemption regulated in article 15 (g) of Copyright Law, since they are making money from the sale of the pirated goods, by using the exclusive rights granted by the Law to the copyright holder.

Therefore, we might find that the Copyright Law itself has given a decent protection for the copyright holders. However, the enforcement of the law itself still needs massive development to prevent Indonesia from being a pirate’s haven.