2016, Sejarah Dan Politik Hukum Hak Cipta

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dalam ilmu sosial.86 Dengan demikian di samping menempatkan
undang-undang hak cipta nasional sebagai fenomena normatif dalam
kajian ini undang-undang hak cipta nasional juga ditemaptkan sebgai
fenomena sosio-kultural. Hukum selalu diartikan sebagai produk akhir
dan kristalisasi kebudayaan. Ada juga yang mengartikannya sebagai
produk politik, hasil (resultant) dari kekuatan politik. Sebagai hasil
kebudayaan, sebagai produk politik, sebagai fenomena sosial, mau
tidak mau untuk melihat secara utuh dan bahkan sebagai fenomena
normatif, realiti sosio-kultural hukum, studi ini harus meminjam
metode penelitian dari ilmu-ilmu sosial sebagai metode penjelajahan
semua fenomena itu dan dipadukan dengan metode penelitian hukum
yang murni, yakni metode penelitian hukum normatif. Metode yang
menggunakan pendekatan ilmu sosial oleh Jones disebutnya sebagai
pendekatan non doktrinal riset, sedangkan metode yang murni yang
lazim dipakai dalam ilmu hukum adalah pendekatan doktrinal riset.
Keduanya akan dipadukan, namun keluarannya, adalah hukum. 87

Oleh karena itu langkah untuk menjawab teka-teki itu disusun
tahap demi tahap. Mulai dari tahap inventarisir norma hukum sampai
pada tahap penerapannya. Di antara keduanya (tahap inventarisir dan
penerapannya) dijelaskan pula proses pembuatannya (legislasinya,
dengan pendekatan politik hukum) dengan disana-sini melihat pada
perjalanan sejarahnya (metode sejarah) dan membandingkannya pada
kurun waktu yang berbeda dan melihat pula diberbagai negara lain
secara sekilas untuk memperkaya khazanah penelitian dengan
menggunakan metode perbandingan hukum. Dengan demikian
fenomena transplantasi hukum hak cipta dapat tersingkap, ketimpangan

86 Lihat lebih lanjut Abbas Tashakkori, Charles Teddlie, Hand Book Of Mixed
Methods In Social & Behavioral Research, (Terjemahan Daryatno), Pustaka Pelajar,
Yogyakarta, 2010, hal. 25.

87 Mengenai hal ini, lebih lanjut dapat dilihat dari uraian-uraian Lili Rasyidi
dalam bukunya Lili Rasjidi dan Ira Thania Rasjidi, Dasar-dasar Filsafat dan Teori
Hukum, Citra Aditya Bakti, Bandung, 2007, hal. 55. Hal yang sama juga dapat dilihat
dalam uraian Soetandyo Wignjosoebroto Penelitian Hukum Normatif : Analisis
Penelitian Filosofikal dan Dogmatikal, Yayasan Obor Indonesia, Jakarta, 2009, hal. 65,
demikian juga uraian-uraian Lili Rasyidi, Soetandyo dan M. Solly Lubis dalam
kuliahnya di Program Pasca Sarjana USU sepanjang semester B Tahun 2010 -2011.
Pemaduan antara berbagai metode penelitian ini, tidak bisa tidak harus dilakukan.
Alasannya adalah : 1. Hukum sarat dengan kompleksitas kehidupan sosial, karena itu
tidak bisa dijelaskan dari satu paradigma metodologis saja, butuh beragam perspektif. 2.
Hukum memiliki multi paradigma, oleh karena itu pilihan terhadap metode campuran itu
akan memperluas cakupan dimensi hukum yang multi paradigma itu untuk mendapat
gambaran yang utuh dari realitas sosial hukum yang penuh teka-teki (the full social redity
of legal fenomena).

117

dapat terpecahkan, konsep terpahami dan hubungan timbal balik antara
berbagai faktor yang mempengaruhi hukum sebagai sub sistem dalam
sistem nasional dapat terjalin. Semua penggalan-penggalan informasi
apakah itu diperoleh dari data sekunder atau data primer dapat dijalin
jadi satu. Dengan langkah-langkah ini semuanya bermuara pada
pengembangan teori atau penemuan teori baru sebagai the something
new. 88

Mengacu pada uraian di atas, maka dalam penelitian ini
dipadukan dua model penelitian hukum yakni :
a. Metode penelitian doktrinal riset atau dogmatik.
b. Metode penelitian nondoktrinal riset.89
Untuk pendekatan pertama Soerjono Soekanto 90 menggunakan
istilah penelitian juridis normatif, sedangkan untuk pendekatan
kedua digunakannya istilah sosiologis-empiris.

2. Metode Penelitian Doktrinal Riset
Salah satu dari capaian metode penelitian doktrinal riset

adalah untuk mencari atau menemukan asas hukum atau doktrin hukum
yang terkandung dalam peraturan perundang-undangan yang
berhubungan dengan Hak Cipta, baik itu peraturan Perundang-
undangan Nasional (Undang-undang No. 19 Tahun 2002) maupun
Perundang-undangan yang bersumber dari hukum asing (The
Agreement on Trade Related Aspects of Intellectual Property Rights,
Bern Convention, Rome Convention).91 Metode ini diawali dari
pekerjaan menginventarisir berbagai-bagai peraturan perundang-

88 Lihat lebih lanjut Abbas Tashakkori, Charles Teddlie, Hand Book Of Mixed
Methods In Social & Behavioral Research, (Terjemahan Daryatno), Pustaka Pelajar,
Yogyakarta, 2010, hal. 54. Memang untuk pilihan metode campuran ini perlu kehati-
hatian sebab jika keliru bisa menjadi ancaman serius terhadap validitas, karena asumsi-
asumsi, metodologisnya dilanggar. Namun berapapun tingkat kesulitannya kami
memberanikan diri untuk melakukan pilihan metodologis campuran ini, dengan alasan
bahwa fenomena hukum memang menghendaki pola pendekatan yang demikian.

89 Soetandyo Wignjosoebroto, Makalah pada Penataran Lanjutan Pendekatan
Ilmu Sosial Dalam Kajian Hukum, Cibogo, 15-16 Oktober 1993. Lihat juga Soetandyo
Wignjosoebroto, Metode Penelitian, Bahan Kuliah Bagi Mahasiswa Program Doktor
Ilmu Hukum, Universitas Sumatera Utara, Medan, Tahun 2009/2010 ; Soetandyo
Wignjosoebroto, Hukum Paradigma, Metode dan Dinamika Masalahnya, ELSAM &
HUMA, Jakarta, 2002, hal. 164.

90 Soerjono Soekanto, Identifikasi Hukum Positif Tidak Tertulis Melalui
Penelitian Hukum Normatif dan Empiris, IND-HILL-Co, Jakarta, 1988, hal. 47.

91 Yakni berupa peraturan perundang-undangan yang bersumber dari hukum
kolonial dalam hal ini Auteurswet 1912 No. 600 dan Konvensi Internasional seperti Bern
Convention, Rome Convention dan TRIPs Agreement.

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undangan terkait kemudian dilanjutkan dengan pengujian norma per
norma. Pada zamannya, mengapa norma itu berbunyi demikian ?
Suasana seperti apa yang berlangsung pada saat norma itu disusun.
Konvensi Internasional apa yang berlaku pada saat itu dan bagaimana
penyesuaiannya dengan hukum Indonesia. Misalnya Konvensi Bern
diselaraskan dengan Auteurswet 1912 Stb. No. 600, dan Undang-
undang Hak Cipta No.6 Tahun 1982, karena ketiganya memiliki
hubungan yang kuat dalam proses pembentukannya. Undang-undang
Hak Cipta No.12 Tahun 1997 dan Undang-uyndang Hak Cipta No. 19
Tahun 2002, diselaraskan dengan TRIPs Agreement 1994, alasannya
juga sama, yakni pembentukan dua undang-undang hak cipta Nasional
yang disebutkan terakhir memiliki pertalian atau benang merah dengan
TRIPs Agreement. Pengujian dilangsungkan dengan mengukur tingkat
keselarasan normatif Undang-undang No. 19 Tahun 2002 dengan
ideologi negara (sebagai landasan filosofis penyusunan peraturan
perundang-undangan). Pengujian dilanjutkan juga dengan mengkaji
ideologi yang tersembunyi dibalik norma-norma Bern Convention,
Rome Convention 1961 dan The Agreement on Trade Related Aspects
of Intellectual Property Rights (TRIPs) Agreement 1994.

Inventarisirpasal-pasal yang terkait dalam proses transplantasi
itu dibandingkan satu persatu dalam pasal-pasal undang-undang hak
cipta nasional. Kemudian diikuti dengan klasifikasi norma pernorma,
misalnya norma yang mengatur tentang ruang lingkup hak cipta akan
ditelusuri dalam pasal-pasal undang-undang hak cipta nasional,
sebelum ditransplantasi norma semacam itu akan dilihat dalam
Auteurswet 1912 Stb No.600 atau di berbagai Konvernsi Internasional
yang mengatur tentang itu. Setelah dibandingkan dengan
menempatkannya dalam satu matrik yang sederhana akan dilihat
perbandingannya. Kesamaan pada bunyi norma, akan mengantarkan
pada kesimpulan bahwa transplantasi dilakukan 100 %, begitu
setrusnya. Kemudian tidak berhenti di situ saja, penarikan azas hukum
yang tersembunyi dibalik norma hukum itu juga dilakukan sekaligus
tentu saja ini dilakukukan melalui metode abstraksi. Untuk selanjutnya
kedua asas hukum itu dibandingkan antara hukum nasional dengan
hukum yang bersumber dari hukum asing. Keduanya kemudian
dihadapkan untuk kemudian dipertemukan dengan metode ”Nuances”
menurut kerangka pikir Mahadi. Misalnya ada norma hukum yang
memiliki kecenderungan (ideologi ekonomi) kapitalis yang
dicangkokkan ke dalam undang-undang hak cipta nasional, sedangkan
di sisi lain Pancasila menganut (ideologi ekonomi) kerakyatan,
keduanya dicarikan titik temu, dicarikan nuansa (nuances) norma-

119

norma itu tidak saling berbenturan. Norma-norma undang-undang hak
cipta yang bertentangan nilai-nilai Pancasila itu disarankan untuk
diubah dengan norma yang sesuai dengan kepribadian bangsa, akan
tetapi dihindari kecenderungan konservatif, dengan merangkum
pluralisme yang ada. Norma hukum konkrit yang direkomendasikan
tidak boleh berujung pada penciptaan mitos pendewaan bangsa semata-
mata (commit nationally), akan tetapi menyahuti pula kepentingan
global (think globally), dengan pengakuan pada pluralisme hukum-
hukum lokal (act locally). Formula seperti apa yang tepat untuk dapat
menyahuti itu, hal itu akan menjadi rekomendasi penelitian ini setelah
menemukan sesuatu yang baru (something new).

Dalam kerangka yang lebih luas, analisis diarahkan juga untuk
melihat proses legislasi yang dilakukan, dengan menguji data berupa
memory van toelichting (asbabun nuzul) yang melatar belakangi
kelahiran Undang-undang Hak Cipta dari waktu ke waktu.

2.1.Bahan Hukum
Bahan hukum dalam studi penelitian doktrinal ini adalah
sebagai berikut :
a.Auteurswet Stb. No. 600 Tahun 1912
b.Undang-undang No. 6 Tahun 1982
c.Undang-undang No. 7 Tahun 1987
d.Undang-undang No. 12 Tahun 1997
e.Undang-undang No. 19 Tahun 2002
f. Bern Convention
g.Rome Convention
h.Universal Copy Rights Convention
i. The Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPs) Convention.

2.2. Teknik Analisis
Langkah pertama yang dilakukan dalam analisis data adalah,
menginventarisir seluruh norma-norma hukum yang termuat
dalam Undang-undang Hak Cipta, meliputi Auteurswet Stb. No.
600, Undang-undang No. 6 Tahun 1982, Undang-undang No. 7
Tahun 1987, Undang-undang No. 12 Tahun 1997 dan Undang-
undang No. 19 Tahun 2002, The Agreement on Trade Related
Aspects of Intellectual Property Rights (TRIPs) Agreement.
Proses selanjutnya adalah mebandingkannya dengan
menempatkan dalam matrik. Analisi dilakukan dengan menacri
persamaan dan perbedaan dari kedua norma hukum yang

120

dibandingkan itu. Pada saat bersamaan dilakukan juga analisi
dengan menggunakan metode abstraksi guna menarik asas-asas
hukum yang “tersembunyi” dibalik atau di belakang norma
hukum itu. Prosesnya bertolak dari premis-premis norma hukum
positif yang termuat dalam undang-undang dan norma hukum
asing tersebut, dengan teknik analisis interpretatif induktif.
Interpretatif dilakukan dengan cara membuang hal-hal yang
bersifat khusus untuk mendapatkan hal-hal yang bersifat umum
abstrak. Teknik ini juga dikenal sebagai teknik pengabstraksian
dengan metode analisis induktif. Metode bernalar induktif akan
selalu ditempatkan pada posisi mendahului melalui pengamatan
terhadap pernyataan-pernyataan proposisional yang termuat
dalam norma peraturan perundang-undangan hak cipta yang
disusun sebagai premis-premis dan kemudian kesimpulannya
ditarik melalui prosedur induktif. Dengan memanfaatkan
proposisi-proposisi hasil pengamatan, maka akan diperoleh
proposisi-proposisi baru sebagai kesimpulan induktif yang
berdaya laku umum dalam bentuk asas hukum. Dalam dunia
penalaran ilmu (hukum), asas hukum yang diperoleh secara
induktif ini pada putaran berikutnya akan dijadikan sebagai
proposisi pangkal (premis mayor) untuk mengembangkan
pemikiran deduktif, spekulatif, guna membuktikan asumsi-
asumsi yang telah dikemukakan dalam penelitian ini, yang pada
gilirannya akan dipakai sebagai modal untuk memulai proses
induksi berikutnya sebagai something new (norma hukum hak
cipta yang sesuai dengan the original paradicmatic of
Indonesian values cultural and society.
Langkah selanjutnya adalah memperbandingkan (komparasi)
asas-asas hukum yang ditemukan dalam berbagai-bagai
peraturan perundang-undangan tersebut. Perbedaan pada tiap
periodesasi undang-undang tersebut, akan menjadi kajian
tersendiri pula dengan menggunakan pendekatan metode sejarah
. Tentu saja teknik analisi yang dilakukan adalah teknik analisis
yang mengacu pada perjalanan sejarah peraturan perundang-
undangan tersebut. Tiap suasana penggantian undang-undang
itu, akan dianalisis situasi politik yang mewarnai dan melatar
belakanginya. Informasi dan dokumen menjadi bahan rujukan
utama seperti memory van toelichting, dan catatan-catatan yang
mewarnai pembentukan undang-undang hak cipta nasional itu
dari waktu ke waktu berdasarkan priodik dan itu akan menjadi
dasar untuk pengujian hubungan antara variabel politik dan

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variabel pilihan norma hukum yang tertuang dalam undang-
undang. Teknik ini lazim dikenal dengan “content analysis”
(analisis isi). Teknik ini melulu menggunakan teknik analisis
kualitatif, dengan kata lain menyampingkan teknik analisis
kuantitatif, untuk sampai pada suatu kesimpulan sebagai temuan
baru, sesuatu yang baru (something new).

3. Metode Penelitian Nondoktrinal Riset 92
Metode penelitian nondoktrinal riset dimaksudkan untuk
mengetahui berbagai-bagai gejala empiris yang meliputi gejala
sosiologis (struktur) dan gejala antropologis (budaya hukum)
dan pilihan kebijakan politis yang berkaitan dengan keberadaan
peraturan perundang-undangan tersebut dari waktu ke waktu,
mulai dari Auteurswet 1912 sampai dengan Undang-undang No.
19 Tahun 2002. Hal ini untuk menjawab latar belakang politis
yang mewarnai kebijakan hukum transplantasi dalam
pembentukan Undang-undang Hak Cipta Nasional.
Gejala-gejala empiris itu meliputi gejala kultural dan struktural
dan politis serta ditarik juga dalam perjalanan sejarah yang
panjang selama kurun waktu Auteurswet 1912 No. 600 sampai
pada TRIPs Agreement 1994 yang akan mengungkapkan
tentang pilihan politik hukum nasional dalam rangka
penyusunan peraturan perundang-undangan Hak Cipta Nasional.
Selanjutnya dalam penelitian non doktrinal riset ini juga akan
diuji tingkat daya laku (keberlakuan) Undang-undang No. 19
Tahun 2002 tentang Hak Cipta hasil transplantasi dalam
perlindungan karya sinematografi yang dihubungkan dengan
gejala sosiologis dan antropologis, meliputi budaya politik
dalam kebijakan legislasi, budaya brirokrasi dalam arti penataan
struktur pemerintahan yang menciptakan iklim birokrasi yang
baik bagi upaya penegak hukum, budaya hukum para legal
(dibatasi pada :polisi, jaksa, hakim dan kosultan hukum).
Batasan tentang budaya di sini, lebih dari sekedar prilaku
hukum, tapi juga menyangkut pandangan mereka terhadap pola-
pola prilaku yang berkaitan dengan penegakan hukum karya
cipta sinematografi

92 Lihat lebih lanjut, Soetandyo Wignjosoebroto, Penelitian Hukum dan
Hakikatnya Sebagai Penelitian Ilmiah, Lihat juga Soetandyo Wignjosoebroto, Penelitian
Hukum Normatif : Analisis Penelitian Filosofikal dan Dogmatikal, Dalam Sulistyowati
Irianto & Shidarta (ed), Metode Penelitian Hukum, Konstelasi dan Refleksi, Yayasan
Obor Indonesia, Jakarta, 2009, hal. 83-141.

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3.1.Lokasi Penelitian
Lokasi penelitian ini ditetapkan di Kota Medan di gerai-
gerai penjualan VCD dan DVD hasil karya sinematografi
yang ditetapkan secara multi stage sampling (sampling
bertahap) sehingga Kota Medan dibagi berdasarkan wilayah
kecamatan dan tiap-tiap kecamatan ditetapkan 10
responden. Khusus untuk wawancara juga ditetapkan
beberapa responden yang tinggal di Kota Medan. Gerai-
gerai penjualan VCD dan DVD dipilih masing-masing 5
gerai tiap-tiap wilayah kecamatan untuk pedagang-pedagang
kaki lima ditambah dengan masing-masing 3 gerai untuk
pedagang kelas menengah yang tersebar di toko-toko dan
masing-masing 2 gerai untuk pedagang kelas menengah atas
yakni di plaza-plaza di pusat Kota Medan.
Untuk pedagang kaki lima dan pedagang di rumah toko total
responden ditetapkan sebanyak masing-masing 8 orang tiap-
tiap kecamatan meliputi : 1. Medan Amplas, 2. Medan Area,
3. Medan Barat, 4. Medan Baru, 5. Medan Belawan, 6.
Medan Deli, 7. Medan Denai, 8. Medan Helvetia, 9. Medan
Johor, 10. Medan Kota, 11. Medan Labuhan, 12. Medan
Maimun, 13. Medan Marelan, 14. Medan Perjuangan, 15.
Medan Petisah, 16. Medan Polonia, 17. Medan Selayang,
18. Medan Sunggal, 19. Medan Tembung, 20. Medan
Timur, 21. Medan Tuntungan,
Untuk gerai-gerai pedagang kelas atas, ditetapkan 4 plaza di
Kota Medan yaitu : 1. Medan Plaza, 2. Medan Fair Plaza, 3.
Sun Plaza, 4. Thamrin Plaza dan 5. Aksara Plaza.
Selanjutnya untuk data yang akan diambil dari pihak aparat
penegak hukum meliputi Kepolisian, Kejaksaan dan
Kehakiman.
Kepolisian :
Meliputi di wilayah 1. Medan area, 2. Medan Kota, 3.
Medan Barat, 4. Medan Baru, 5. Medan Timur, 6. Medan
Helvetia, 7. Percut Sei Tuan, 8. Patumbak, 9. Deli Tua, 10.
P. Batu, 11. Kutalimbaru, 12. Polres Pelabuhan Belawan
Kejaksaan :
Ditetapkan di Kejaksaan Negeri Medan.
Kehakiman :
Ditetapkan di Pengadilan Negeri Kelas I Medan.

123

Penasehat Hukum :
Khusus untuk kalangan penasehat hukum, ditetapkan di
wilayah Kota Medan yang lokasi kantornya ditentukan
secara acak.

Konsumen :
Khusus untuk kalangan konsumen, yakni masyarakat lokasi
juga ditetapkan di seluruh wilayah Kecamatan Kota Medan
dan dipilih 1 orang dari masing-masing konsumen yang
berbelanja pada masing-masing gerai yang telah ditetapkan
tersebut. 93

3.2. Sumber Data dan Informasi
a. Data Sekunder yakni :
- undang-undang
- memory van toelichting penyusunan Undang-undang
Hak Cipta Nasional.
- jurisprudensi (putusan pengadilan)
- buku-buku
- karya ilmiah
- majalah (jurnal)
- artikel
- data dari website internet
b. Data primer yakni :
- Kuesioner
- Wawancara
- Observasi

3.3. Penetapan Sampel Penelitian
Sampel penelitian digunakan untuk pendekatan penelitian non
doktrinal riset yakni dari kalangan penjual VCD dan DVD
hasil karya sinematografi, ini dilakukan khusus untuk
menjawab pertanyaan yang berkenaan dengan asal muasal
barang yang dijual, status legalitas barang yang dijual, harga

93 Untuk observasi langsung lokasi penelitian ditetapkan di beberapa kota-kota
di Eropa, Asia dan Asia Tenggara. Kota-kota di Eropa meliputi : Amsterdam, Den Haag,
Brussel, Paris, Barcelona, Swiss, Venezia dan Frankfurt serta Istanbul, sedangkan untuk
kota-kota di Asia observasi dilakukan di Jeddah selanjutnya di Asia Tenggara meliputi :
Malaysia dan Singapura. Observasi ini hanya terbatas pada harga-harga jual masing-
masing VCD dan DVD dan memastikan apakah di counter-counter luar negeri itu
terdapat barang-barang illegal atau bajakan.

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jual tiap-tiap keping VCD dan DVD, jenis-jenis karya
sinematografi yang dijual (meliputi asal negara yang
memproduksi cerita film tersebut dan jumlah konsumen yang
membeli berdasarkan negara asal produksi film cerita
tersebut), berapa pendapatan setiap harinya serta apakah
pernah ada aparat penegak hukum yang melakukan penyidikan
atau razia atas produk-produk yang mereka jual. Jumlah
responden ditetapkan sebanyak 8 orang x 21 wilayah
kecamatan yang ditetapkan secara acak dengan jumlah total
168 responden. Sedangkan untuk untuk responden kelas
menengah atas ditetapkan masing-masing 4 orang x 5 gerai-
gerai di plaza, dengan jumlah total 20 orang, sehingga total
responden untuk penjual VCD dan DVD berjumlah 188 orang
(untuk responden kuesioner).
Dari 188 orang responden, 4 orang diantaranya dipilih sebagai
responden untuk wawancara (namanya akan dirahasiakan).
Untuk kalangan konsumen ditetapkan sebanyak 1 orang untuk
konsumen yang berbelanja di tiap-tiap counter-counter atau
gerai-gerai di wilayah kecamatan yang telah ditetapkan yaitu
sebanyak 168 responden ditambah 20 responden, jumlah total
188 responden.
Selanjutnya untuk responden aparat penegak hukum
ditetapkan :
Kepolisian :
Pihak Kepolisian yang meliputi di : 11 Kepolisian Sektor
Wilayah Polresta Medan dan 1 Polres Pelabuhan Belawan
masing-masing ditetapkan 2 orang. Jadi jumlah responden
total 2 x 12 = 24 orang (responden untuk kuesioner). Dari
jumlah 24 orang ini akan dipilih 4 orang sebagai responden
wawancara.
Kejaksaan, Kehakiman dan Penasehat Hukum
Kejaksaan, Kehakiman dan Penasehat Hukum ditetapkan
masing-masing 4 orang hanya untuk responden wawancara.
Disamping itu ditetapkan juga 3 orang responden wawancara
warga negara Eropa.

3.4. Penetapan Jumlah dan Penyebaran Responden
Berdasarkan penetapan responden sebagaimana diuraikan di

atas, dengan metode penetapan sampling bertahap (multistage
sampling) maka karakteristik dan penyebaran responden dapat
diuraikan sebagai berikut :

125

1. Pihak penjual VCD dan DVD

a. Pedagang Kaki Lima

Masing-masing 5 orang dari tiap kecamatan

1. Medan Amplas = 5 orang

2. Medan Area = 5 orang

3. Medan Barat = 5 orang

4. Medan Baru = 5 orang

5. Medan Belawan = 5 orang

6. Medan Deli = 5 orang

7. Medan Denai = 5 orang

8. Medan Helvetia = 5 orang

9. Medan Johor = 5 orang

10. Medan Kota = 5 orang

11. Medan Labuhan = 5 orang

12. Medan Maimun = 5 orang

13. Medan Marelan = 5 orang

14. Medan Perjuangan = 5 orang

15. Medan Petisah = 5 orang

16. Medan Polonia = 5 orang

17. Medan Selayang = 5 orang

18. Medan Sunggal = 5 orang

19. Medan Tembung = 5 orang

20. Medan Timur = 5 orang

21. Medan Tuntungan = 5 orang

Total = 105 orang

b. Gerai ruko

Masing-masing 3 orang dari tiap kecamatan

1. Medan Amplas = 3 orang

2. Medan Area = 3 orang

3. Medan Barat = 3 orang

4. Medan Baru = 3 orang

5. Medan Belawan = 3 orang

6. Medan Deli = 3 orang

7. Medan Denai = 3 orang

8. Medan Helvetia = 3 orang

9. Medan Johor = 3 orang

10. Medan Kota = 3 orang
11. Medan Labuhan = 3 orang

12. Medan Maimun = 3 orang

13. Medan Marelan = 3 orang

14. Medan Perjuangan = 3 orang

15. Medan Petisah = 3 orang

126

16. Medan Polonia = 3 orang

17. Medan Selayang = 3 orang

18. Medan Sunggal = 3 orang

19. Medan Tembung = 3 orang

20. Medan Timur = 3 orang

21. Medan Tuntungan = 3 orang

Total = 63 orang

c. Gerai plaza 4 x 5 = 20 orang

Masing-masing 4 orang dari 5 Gerai Plaza

1. Medan Plaza = 4 orang

2. Medan Fair Plaza = 4 orang

3. Sun Plaza = 4 orang

4. Thamrin Plaza = 4 orang

5. Aksara Plaza = 4 orang

Total = 20 orang

2. Konsumen (warga masyarakat)

Masing-masing 1 orang konsumen pada 1 gerai Kaki Lima

Gerai Kaki Lima = 105 orang

Gerai ruko = 63 orang

Gerai Plaza = 5 orang

1 x 188 = 188 orang

3. Kepolisian

1. Medan Area = 2 orang

2. Medan Kota = 2 orang

3. Medan Barat = 2 orang

4. Medan Baru = 2 orang

5. Medan Timu = 2 orang,

6. Medan Helvetia = 2 orang

7. Percut Sei Tuan = 2 orang

8. Patumbak = 2 orang

9. Deli Tua = 2 orang

10. P. Batu = 2 orang

11. Kutalimbaru = 2 orang

12. Polres Pelabuhan Belawan = 2 orang

= 24 orang

4. Kejaksaan

4 orang wawancara di Kejaksaan Negeri Medan.

5. Kehakiman

4 orang wawancara di Pengadilan Negeri Kelas I Medan

6. Penasehat Hukum

127

4 orang wawancara di wilayah Kota Medan yang lokasi kantornya
ditentukan secara acak.
7. Responden wawancara warga negara asing sebagai pembanding.
3 orang yakni :
- Ibrahim Bashel
- Pauline
- Ali Cetin

3.5. Langkah-langkah teknis pencarian atau pengumpulan
bahan uji/data
a. Data Sekunder, dikumpulkan melalui penelusuran
kepustakaan dengan menggunakan buku-buku, hasil
penelitian terdahulu, dokumen-dokumen, peraturan
perundang-undangan, majalah ilmiah (jurnal) dan bahan-
bahan kepustakaan tertulis lainnya sebagai instrumen
penelitiannya.
Teknik pengumpulan data sekunder dilakukan melalui
studi-studi arsip dan studi-studi kepustakaan yang
dilakukan sendiri atau dengan bantuan orang lain.
b. Data primer, dikumpulkan melalui teknik wawancara
dengan menggunakan pedoman wawancara sebagai
instrumen penelitiannya dan melalui kuesioner dengan
mengggunakan angket/daftar pertanyaan yang bersifat
kombinasi (tertutup dan terbuka) sebagai instrumen
penelitiannya. Data primer juga diperoleh melalui hasil
observasi langsung.
Teknik pengumpulan data primer sebahagian dilakukan
sendiri, sebahagian menggunakan orang lain atau
informan.

3.6. Teknis Analisis
Teknik analisis data yang bersumber dari wawancara
dilakukan dengan menggunakan teknik analisis kualitatif
dengan langkah-langkah sebagai berikut :
a. Untuk data yang diperoleh dari hasil wawancara
dilakukan penyederhanaan semua bahan yang terkumpul
kemudian diklasifikasikan ke dalam kelompok-kelompok
tertentu sesuai dengan variabel atau materi yang diteliti.
b. Hasil wawancara yang telah diklasifikasikan
dihubungkan dengan bahan yang diperoleh dari data

128

sekunder seperti memory van toelichting, hasil penelitian

terdahulu, buku-buku ilmiah dan jurnal ilmiah

c. Analisis selanjutnya tidak dilakukan berdiri sendiri tetapi

dihubungkan dengan hasil penelitian doktrinal riset yang

telah diperoleh sebelumnya (menghubungkan hasil

wawancara dengan asas-asas hukum yang ditemukan).

d. Kesimpulan akan diperoleh dari persemaian semua data

yang ditemukan dalam butir a, b dan c di atas.

Teknik analisis untuk penelitian non doktrinal riset untuk

menguji penerapan Undang-undang No. 19 Tahun 2002 hasil

transplantasi dalam bidang perlindungan karya sinematografi,

yang telah diwujudkan dalam bentuk Video Compact Disc

(VCD) atau Digital Video Disc (DVD).

Pengujian variabel-variabel penegakan hukum itu dibatasi

pada 7 (tujuh) subyek hukum yaitu :

1. Pihak penjual VCD dan DVD

2. Konsumen (warga masyarakat)

3. Kepolisian

4. Kejaksaan

5. Kehakiman

6. Penasehat Hukum

7. Responden wawancara warga negara asing sebagai

pembanding.

Teknik analisis data dalam penelitian ini disesuaikan dengan

kebutuhan dan pilihan (metode) untuk menjawab

permasalahan. Rancangan analisis data dengan metode non

doktrinal riset, dianalisis melalui tahapan sebagai berikut :

a. Memberikan kode-kode tertentu (coding) pada lembaran

kuesioner untuk kemudian data

dikelompokkan/diklasifikasikan sesuai dengan variabel-

variabel yang telah ditetapkan.

b. Data yang bersifat kuantitatif (baik yang diperoleh dari

wawancara, kuesioner yang merupakan data primer

maupun data skunder) kemudian ditabulasi,

dikelompokkan kemudian dimasukkan ke dalam tabel

frekuensi selanjutnya diberi penafsiran secara kuantitatif

dan kualitatif.

c. Data yang bersifat kualitatif baik primer maupun

skunder, dikelompokkan kemudian diberi penafsiran

secara kualitatif.

129

d. Dalam memberi penafsiran dilakukan penyilangan antara
data yang satu dengan data yang lain, untuk kemudian
ditarik kesimpulan.

Kesimpulan akan ditarik dengan mempertemukan hasil-hasil yang
dicapai dalam kedua pendekatan itu (doktrinal dan non doktrinal riset)
dan dipadukan dengan data dan informasi yang bersumber dari
dokumen-dokumen serta literatur-literatur yang memiliki keterkaitan
dengan isu transplantasi hukum asing ke dalam undang-undang hak
cipta nasional. Hasil dari keduanya ditarik menjadi suatu kesimpulan
sebagai suatu penemuan baru (somethings new) yakni menemukan
prinsip-prinsip hukum yang bersumber dari nilai-nilai paradigma sosial
budaya Indonesia asli (ideologi Pancasila), untuk kemudian dijadikan
sebagai landasan berpijak dalam setiap aktivitas legislasi nasional dan
aktivitas penegakan hukum agar hukum tersebut dapat melindungi
kepentingan nasional (commit nationally), berakar pada sosio-kultural
masyarakat Indonesia dalam arti dapat mengakomodir hukum-hukum
dan kebiasaan local (act locally) tanpa harus terkucil dari pergaulan
internasional dalam arti mampu mengikuti arus perkembangan
globalisasi (think globally). Dari hasil temuan baru itu akan melahirkan
rekomendasi, langkah-langkah politik hukum seperti apa yang mestinya
ditempuh oleh negeri ini ke depan.

130

CHAPTER II
THE DYNAMICS OF THE HISTORY OF LEGAL POLICY IN

THE TRANSPLANT OF COPYRIGHT LAW

A. Introduction
The existence of copyright law in Indonesia these days is

inseparable from the history of the legal policy since the days of the
Dutch East Indies (and even earlier) to post-independence.94The effort
to establish the order of Indonesian legal system was a political effort
that was consciously done by implementing policies that were rooted in
the transformation of the original Indonesian culture and combined
with a foreign legal culture with all the successes and failures.

This cultural transformation implies that the legal transplants
were also part of the political system and culture which was derived
from the history in Indonesian civilization. In essence, there is not a
legal product that was born in Indonesia which was not derived from
the process of cultural transformation that stem from diverse cultures
and transplantation of foreign cultures in a process known as
acculturation and enculturation.

Since the beginning of the development of the Indonesian
legal system, which was derived from colonial law, as Soetandyo
Wignjosoebroto said95 it was strongly influenced by the development of
liberalism policies which try to open the potential opportunities for
private capital of Europe in order to be implanted into a large
companies in the colony (on the other hand remained also to protect the
indigenous people’s right or the rights of indigenous people’s
traditional agriculture). The protection was given by effecting the
enactment of law for them by enforcing the Adat law.

The formula which was used by the Dutch government was to
divide the three segments of the population in the area of Dutch East
Indies, which was:96
1. European group that is equivalent to the European.

94 Before the entry of the Dutch colonialism government, the social order in
Indonesia has a genuine legal form of customary norms, religious norms, and custom
norms which was called as adat recht by Van Vollenhoven , see Ter Haar, Asas-asas dan
Tatanan Hukum Adat, Mandar Maju, Bandung, 2011,

95 Soetandyo Wignjosoebroto, Dari Hukum Kolonial ke Hukum Nasional
Dinamika Sosial-Politik Dalam Perkembangan Hukum Di Indonesia, Rajawali Pers,
Jakarta, 1994, p.3

96 Through Article 75 old RR and then converted to the new RR article 75,
which had previously been written in Article 6-10 AB and finally with Article 131 and
163 IS

131

2. Foreign east group / vreemde oosterlingen (Foreign east such
as Chinese, Arabic and Indian)

3. Bumi Putera / Inlander group (native Indonesian Population)
Against these three segments of population, different kinds of

law applied. For European group that is equivalent to the European,
European law that was Dutch law which was rooted in the legal
tradition of Indo-German and Roman-Christian which was updated
through the various revolutions that later in the field of civil law
loaded in Burgerlijk Wetboek and Wetboek van Koophandel or better
known as the book of Commercial Law was applied. While for foreign
east group, for majority, the Dutch Civil law was applied except for
adoption and partnership. At last for Bumi Putera group, Adat law,
their customary or their religion, was enforced, or known as Godien
Stigwetten Volkinstelingen en Gukuedreken.

There was an effort from Dutch East Indies government to
align the rule of law in their country with the law in force in the
colony. This policy later known as the principle of concordance, that
was to equalize the law in force in the Netherlands with law in force in
the Dutch East Indies colony. Although then the application of the
principle is met with resistance from the Dutch’s own legal scholars
such as Van Vollenhoven and Ter Haar.97

In the field of intellectual property rights, the effort to codify
and European law unification in the colony was run by enacting the
law which was scattered sporadically (which was not codified in the
book of Civil law and Commercial law) in their own country which
were the laws about brand, patents, and copyrights. The copyrights
law in Netherlands that time was the law which was derived from the
copyrights law in France brought by Napoleon’s expedition. In the
time of Dutch colonialism, this law was known as Auteurswet Stb.

97 See more, Soetandy Wignjosoebroto, Hukum Paradigma, Metode dan
Dinamika Masalahnya, ELSAM, Jakarta, 2002, p.266. The story began from European
officials who were recruited to fill positions in the colonial administration and for the
necessary special education in various cities in Netherlands which was in Leiden, Delf,
and Utrecht. They were taught mostly about the law, language, customs, and institutions
of the society in the colony. In the three cities with well operated education, Leiden was
recorded as the greatest and the most influential because Rijks Universiteit domiciled in
Leiden was becoming a center of a liberal way of thinking that embraces ethical political
line when dealing with the affairs in the colony. But Leiden surprisingly was not in line
with the plans of the government official to run the Dutch Indies Government legal
policies. And among the people who failed the attempt, were Van Vollenhoven and Ter
Haar. And then through these two people, Indonesian Indigenous people finally had their
own law known as Adat Rechts or Adat Law which was used for the first time by Snouck
Hurgronje in his book, De Atjech hers and het Gajo Land.

132

1912 No. 600, was enacted in Indonesia with the concordance
principle. The enactment of this law with the concordance principle
created a legal pluralism even wider, for the cultural variety of that
legal pluralism was existed earlier in Indonesian social order itself that
time. The pluralism appeared because of the variety of tribes,
religions, and territorial and the regulations were made based on this
condition.

It can be said that the impact of the dynamics of the Dutch
East Indies government’s legal political choice, until today, has
produced a product of legal pluralism that meets no ending. And also,
after post-independence, the government of Indonesia made its own
choice of legal policy in order to fulfill the demand of legal system in
the time of post-independence in Indonesia. It seems like that the
political factors, can never be completely detached from the activity in
drafting the rule of law or legal system in Indonesia. The influences of
foreign political pressure kept influencing the policy of legal
development in Indonesia. Especially after the ratification of
GATT/WTO 1994 as an instrument in economic globalization (or in
the other field) which put Indonesia in a condition to adjust some
regulations in the field of intellectual property right especially in the
field of copyrights. The factors that influence the political choice are
lack of control of the capital in Indonesia, lack of the ability to master
the science and technology, human resource in Indonesia, and a poor
management system in Indonesia. These are, which according to
M.Solly Lubis, as a weakness which is possessed by Indonesia. It
was put into words:98

They, (Industrial country), have and in charge of systematic
advantages in three things: capital (funds and equipments),
sophisticated technology and rapid and systematical
management advantages. Our weakness and dependence in
those three things, were also a prove of our weak autonomy,
and this dependence was the cause of our inability to avoid
open or covert interventions and dictations from another
countries towards us. Economical exploitation, political
domination, and cultural penetration can be seen everywhere.
These three targets were thre main targets of imperialism
colonialist and capitalist.

98 Look further M.Solly Lubis, Serba-Serbi Politik Hukum, PT.Sotmedia,
Jakarta, 2011, p. 97. Look also Sritua Arief & Adi Sasono, Indonesia Ketergantungan
dan Keterbelakangan, Mizan, Jakarta, 2013

133

The domination of foreign economic policy in Indonesia was
actually not begun at the time of the ratification of conventions which
are related with international trade such as GATT/WTO and the
conventions under the GATT/WTO. The competition of the countries
which today are the ruler of the world’s economic system which also
incorporated in the industrialized countries like G-8 and G-20 was
started with a long journey of history. The event that led to World War
II can not be separated from the struggle of economic resources in the
world. The expansion of European countries to Asia, such as United
Kingdom to India, Burma, Hong Kong and Malaysia, France to Indo-
China (Laos, Vietnam, Cambodia) Netherlands to Indonesia and even
Unites States with its allies, UK, France, Netherlands, participated to
control the activity in Pacific region. Those industrial countries,
including Japan, although were at lost in East Asia War against the
countries in allies (USA and Europe), their domination in economical
politics is growing stronger each day until today. The record from
Stephen E. Ambrose and Douglas G. Brinkey,99 gave us an
enlightenment that can be concluded that the power of economical
politics in Asia will be still under the power of Western countries (USA
and Europe).

On the other side of the world the United States, in
combination with the British, French and Dutch, still ruled the
Pacific, American Control of Hawaii and the Philippines,
Dutch control of the Netherlands East Indies (N.E.I., today’s
Indonesia), French control of Indochina (today Laos,
Cambodia (Democratic Kampuchea ), and Vietnam), and
British control of India, Burma, Hong Kong and Malaya gave
the Western powers a dominant position in Asia. Japan, ruled
by her military, was aggressive, determined to end white
man’s rule in Asia, and thus a threat to the status quo. But
Japan locked crucial natural resourced, most notably oil, and
w as tied down by her war in China.
The introduction of copyright law in Indonesia is one of the
examples of a conscious political choice which was made by the Dutch
East Indies government until post-independence through political
choice of law transplantation into the copyrights law which was

99 D Stephen E. Ambrose and Douglas G. Brinkey, Rise to Globalism,
American Foreign Policy Since 1938, Penguin books, London, 2011, p. 1

134

enacted in Indonesia (In the time of Dutch East Indies) or in the
Republic of Indonesia (post-independence).

B. Auteurswet Period Stb No. 600 (1912 – 1982)
Before the enforcement of Auteurswet 1912 Stb No. 600 in

Indonesia, this country was not a country with a legal vacuum
condition, especially in the field of copyrights. Measured by the
normative standard from Meester in de rechten, (Law graduates from
Netherland), we can see that Indonesia did not have any legal norms
that time. If law was approved to be some sets of rules to regulate the
behavior and actions of the society, then actually, Indonesian society
that time, did have what is called as law. But if the point of view is that
the legal sanction to the violation of norms was given by the ruler, or
the norms must be made by a official ruler who was born from a legal
formal norm based on modern democracy principle, and the application
of the sanction was based on procedural law which subject to the
regulations with the purpose of protecting human rights, then we can
infer that Indonesia did not have law. The terminology about the
existence of law was based on an existing terminology at a group of
society who depended on the territory and the times where the values
was located and enforced.

The adage stated that “ubi societies ibi ius” is an indisputable
axiom which means where society is, there is law. The society will be
extinct automatically when there is no law in the life of the community,
or according to the term stated by Djojodigoena,100there is no ugeran
that can be used to determine how to behave.

The time of Dutch colonialism was lasted for three and a half
centuries in Indonesia. The development of social dynamics and
politics, including legal policy and economical politics and also cultural
politics is somewhat being influenced by the colonial atmosphere. The
Dutch legal policy to duplicate (with concordance principle) the legal
norms, which was enforced in their country to the legal norms enforced
in the colony, did not succeed. The enactment of Auteurswet 1912 Stb.
No. 600 was one of the examples in duplicating the law from

100 Djojodigoena, Reiorientasi Hukum dan Hukum Adat, Gajah Mada,
Yogyakarta, 1958, p.8-9. An ugeran is a law that charged an obligation and prohibition,
while an anggaran is a law, that stated a condition. Both have a relation to a system or
order. Anggaran is to determine, to record what is existed in the nature, so logically it is
posterior to the system, and the ugeran is meant to limit the attitude, behavior, and human
action in order to create a basic system in the society, so logically it is anterior to the
system.

135

Netherland to the colony. Although the substance of legal norms in the
Auturswet 1912 Stb.No 600 was enforced and had already fulfilled the
criteria of the enactment (that was to place it in the Statute Book of
Dutch East Indies (Wet van 23 September 1912, Staatblad 1912-600)
effective since 23 September 1912) but the norms were failed to be
applied. The failure was characterized by the fact that the arrangement
and law enforcement had not actualized in line with expectations and
its purpose ideologically, normatively, and sociologically. This could
be seen in the books published by Balai Pustaka Publisher (In this era,
Balai Pustaka publisher was a stated-own enterprises) which actually
were books that translated from authors from Europe, but in the
publishing process, the publisher from Balai Pustaka did not ask for
approval to translate and to publish the books neither to the authors, nor
to the original publishers as the copyrights holder. To mention, some of
the translated books, are: L’avare, a French author, adapted by S.
Iskandar entitled si Bakhil (1926) ; Le Medicin Lui, also by Moliere,
adapted by Moh Ambri entitled Si Kabayan jadi Dukun (1932).
Probably another hundreds of tittles were published without any
approval from the copyrights holder.101 Although the translation by
Balai Pustaka publisher was done with a good intention and with the
purpose to enrich the treasure of literature for Indonesian society, but
clearly according to Auturswet 1912, a non- permissible translation was
a violation of law. Except, the translation was done from books which
has already belonged to public (public domain), as long as the author’s
name and the original title is mentioned, since the moral rights was still
attached to the creations.

In the time of Dutch colonialism, following the Netherlands,
the Dutch East Indies was registered as a member of Bern Convention.
It meant that Indonesia was subject to International Convention about

101 Sumardjo, Jakob, Dari Kasanah Sastra Dunia, Penerbit Alumni, Bandung,
1985, p.133, which written the list of translated novel from Balai Pustaka “before the
war” and “after the war” in number of 174 tittles ; Bdg also Wink, TH, Undang-Undang
Hak Pengarang, G. Kolf & Co, Bandung, 1952 p. 23 and Ajip Rosidi, Undang-undang
Hak Cipta 1982, Pandangan Seorang Awam, Penerbit Djambatan, Djambatan, Jakarta,
1984, p. 4 Bdg also J.P. Errico stated that the arrangements of law and copyrights of
countries likes Singapore, Malaysia and Indonesia is strongly influenced by the concept
of intellectual property rights derived from western countries. And then these three
countries and the neighboring country, were stated in a very interesting explanation:
These nations were colonies of the West (notably the United Kingdom and the
Netherlands) much longer than the neighbors, and therefore have had their development o
intellectual property protection, industrial policy and technological expansion, controlled
by the West. In fact some countries, like Singapore, have no independent systems of
intellectual property protection to this day.

136

the protection of copyrights. There are not many records that reveal
events about copyrights infringement in the time of Dutch colonialism.
But the records about how Auteurswet 1912 Stb. No. 600 finally had to
be replaced, in many explanations can be said that at that time, many
violations towards copyrights had happened. Those violations were not
merely happened because the ineffectiveness of the law enforcement in
the field of copyrights, but they were because of cultural affairs,
politics affairs, and the economical condition of the society in Dutch
East Indies that time. 102 A relative copyright protects the interests of
the creators in the field of book publishing and cinematography at the
beginning of Auteurswet 1912 Stb. No. 600 enactment in the colony by
the Dutch East Indies government, was not an urgent matter to be
protected. This was marked with not much of publishing and
production effort in the field of cinema which operated in The Dutch
colonial territory that time.103

In the time of Japanese occupation, the situation of law
enforcement was tinged with the political situation and the turbulent

102 Let us just consider that the colonialism had caused a lot of wars with local
scale that happened in every territorial in Republic of Indonesia. The priority to focus on
the aspects of law enforcement by the Dutch colonial government in the field of civil law
and also in the field of business , where Indonesian society that time, subjected to Adat
law, unless those who were willing to subject themselves is voluntary, made the choice of
law enforcement in the field of copyright by the apparatus of law enforcement in the time
of Dutch East Indies was not as the highest priority. The fields of copyrights which were
protected that time were mostly unknown in Indonesian civilization. Such as copyrighted
works of photography, books, cinematography, paints, were known to a very few of
people. Whereas copyrighted works such as dance, batik, which were the original
copyrighted works of Indonesian people, were not a big problem, or considered as a
violation of copyright law if the work was used by the other Bumi Putera without the
approval from the creator. It happened in the time of Dutch colonialism, and it was being
continued until the beginning of post-independence. The violation of copyright law was
not considered as a felony that preoccupied the jurist.

103Activity in the field of cinema for instance just began in 1926, that was
with the production of a movie entitled Loetong Kasaroeng then Eulis Atjih in 1927, and
consecutively in 1928 Lily van Java, Nyai Dasima in 1929. Until in 1942 that was the
beginning of the Japanese occupation, The Dutch East Indies film industry did not much
involve Bumi Putera population, especially among the directors . After the Japanese
occupation, directors from Indonesia began to emerge, such as Raden Arifin, Rustam
Sutan Panidih, B. Koesoma and Inoe Perbatasari. Because of that in the field of
copyrighted works of cinematography , an original Indonesian population was not
considered as an important matter to be subjected to Auteurswet 1912 Stb. No 600.
Beside that, the technology to reproduce the copyrighted works of cinematography
unlawfully, is not as advanced as at the time of the discovery of optical disc technology.
See more Taufik Abdullah, Misbah Y. Biran and S.M. Ardan, Film Indonesia, (1900-
1950), Jakarta, Dewan Film Nasional, 1993, p. 87.

137

war, so that the law enforcement (not only in the field of copyright but
also in another fields did not become priorities that time. The supreme
leader of Gunseikhanbu, (military government of Japan) on the former
Dutch colony land, focused more on military efforts to win the East
Asia War, so that the occupation for three and a half years did not
produce any legal protection in copyright aspect. In that era, there was
a cultural center established (Keimin Bunka Shidosho) which dealt with
the aspects of Indonesian culture, but more geared to the interest of
Japan and the library that was developed in the cultural center dealt
more with archival records and books seized from the Dutch Indies
government. It can be ascertained that the legal protection of copyright
works of the period was not completely focused on the provision of law
which still has a valid power, the Auteurswet 1912 Stb. No. 600.

In the year of 1944, the Japanese occupation ended, coincided
with the end of the East Asia War. The 17th August 1945 proclamation
of the Indonesian Independence day, echoed formally throughout the
nation, was the ending of colonialism regime in Indonesia. Indonesia
immediately constructed its own legal order. In the process of the legal
order construction, for the first time on the 18th August 1945, Indonesia
could apply the basic law of its country, the Constitution of Republic
Indonesia. While the other legislations or laws, were still in
preparation. But in an independent country, a legal vacuum must not be
happened. Considering this situation, Indonesian Independence
preparatory committee, or known in Indonesia as PPKI, arranged the
Constitution of Republic Indonesia, and established in the transition
law to continue using the laws from the colonial legacy. This transition
provision is written in Article II Transition Law in Constitution of
Republic Indonesia 1945:104

All state agencies and regulations existed still apply as long as
the new one is not yet to be applied according to this
Constitution.

104The same transition law is also written in the constitution of Indonesian
Republic Union, the interim of Constitution of Republic of Indonesia. Basically it has the
same meaning with the transition provision in the constitution of Republic Indonesia
which s written in Article 192 in constitution of Indonesian Republic Union and Article
142 in interim of Constitution of Republic of Indonesia. Because of that, Auteurswet
through these transition laws which were written in three different constitutions which
ever enforced in Indonesia is still applied although it is a legacy from the Dutch
government. Auteurswet, legally, is still a Positive Law for copyright arrangement in
Indonesia. After approximately 70 years of the enactment of Auteurswet 1912, by
Indonesia as a independent country, national legislation of copyright, Act Number 6 of
1982 was put in place.

138

To strengthen and explain the realization of the Transition
Law by the President at that time, it was crucial to establish Presidential
Regulation No.2 10 October 1945 which the first provision citation is:

Every state agencies and regulations existed until the
establishment of Republic of Indonesia on 17 August 1945,
according to the Constitution of the Republic, as long as the
new one is not yet to be applied, is still valid providing that it
does not contradict to the mentioned Constitution of the
Republic.
Referring to the above regulation, Auteurswet 1912 Stb. No.
600 is one of the remaining law of Dutch colonialism legacy which the
validity still continued until 1982. Since Indonesia gained
Independence on 17 August 1945, there were 37 years of interval until
the remaining Wet of Dutch colonialism legacy was changed. During
the interval, the law enforcement in the field of copyright did not show
any good news. Copyright infringement specifically in the field of book
publication continued during that period. Even so, during the 70 years
of the enactment of Auterswet 1912 Stb. No. 600 at least in the history
record, this wet became the basis of the establishment of national
copyright law.
In International dimension, Indonesia as the region of Dutch
East Indies during the enactment of Auterswet 1912 Stb. No. 600
legally subject to Bern Convention. After 1 August 1931, the
convention was declared to be valid in the Dutch East Indies territory
which is written in Staatsblad 1931 No.325. The Bern Convention
which was declared as valid was the Bern Convention 1886 that had
been revised in Rome on 2 June 1928. This text was declared binding
the colonies of Dutch East Indies. Therefore during the reign of Dutch
East Indies, there were 2 staatsblad that apply concerning copyright
protection. The first staatsblad is Staatsblaad 1912 No. 600 concerning
Auteurswet that was about protection of copyright in colonial territory
and the second was Staatsblad 1931 No. 325 that was internationally
Copyright protection that subjected to Bern Convention. During the
Dutch colonial period, it was almost certain that the rules about
copyright were more than creating the status quo as depicted by Hendra
Tanu.105 The status quo, or the situation which led to ineffectiveness of

105 Hendra Tanu Atmadja, Hak Cipta Musik atau Lagu, Universitas Indonesia
Press, Jakarta, 2003, p. 41. Hendra Tanu mentioned that Copyright Law in the Dutch
Colonialism, Japanese occupation, even until proclamation of Indonesia Independence
did not take place in law enforcement. He said that that law was dead or not applicable.

139

Copyright laws made by the government of Dutch East Indies,
according to Otto Hasibuan caused by two factors. The first is because
the law itself contains many flaws in substance which includes the
regulation and the sanctions. Second, after the proclamation,
Indonesian government had a desire not to protect copyright as it
should be. The Signs of Indonesian government was not willing to
protect copyrights can be seen, which is according to Otto Hasibuan:106
1. On 1958, during the reign of Djuanda Cabinet, Indonesia declared

to sign out of Bern Convention (With the intention that Indonesia
can freely perform various knowledge transfer activities from
abroad to domestic by translating, imitating, or copying foreign
creation).
2. The government let Balai Pustaka publisher violated the existing
copyright laws.
3. Government, particularly law enforcer let Indonesian authors retell
foreign works without any approval.
4. Although aware that the Auteurswet 1912 is inappropriate and
contains many flaws, government and the House of
Representatives were not serious in creating the new Copyright
Laws.

The reason for Indonesian discharge from being a member of
Bern Convention is more than what Otto Hasibuan expressed.
Indonesian political situations at the time were attempting to reclaim
West Irian. If the membership of Indonesia in Bern Convention based
on the attachment to the registration conducted by the Dutch
government, then it means that Indonesia recognize Dutch sovereignty.
Because of that, Juanda as the leader of the cabinet (that time Indonesia
adhered the cabinet of ministry) took political steps to sign out from
Bern Convention. Moreover, the cultural factors (legal culture) and
sociological factor, also influenced legal behavior of Indonesian
people. Legal aspects which were not rooted culturally and structurally
in Indonesian society would be hard to be enforced. That was the
consequence of legal transplant. Experience in western law
transplantation in history of legal establishment in Indonesia (not only
in the field of copyright) in a lot of cases, was having failures because
of the principles which were the background of western law, did not
similar with the principles which were firmly rooted in the legal norms
of Indonesian people. Although in a long term of period, efforts to

106 Otto Hasibuan, Hak Cipta di Indonesia Tinjauan Khusus Hak Cipta Lagu,
Neighboring Rights and Collecting Society, Alumni, Bandung, 2008.

140

accelerate the European law transplantation process to the colony, said
Soetandyo Wignjosoebroto,107 as an Europeanization of the colonial
legal system that finally happened although it took a pretty long time.
Such as the enactment of book of civil law (BW), book of commercial
law (WvK), book of criminal law (WvS), criminal procedural law
(HIR) and civil procedural law (RbG), all was done with the choice of
legal transplants gradually and took time with three legal policies, that
were: statement of application (topasslijk verklaring), equality of right
(gelijk steling) and subject to voluntary (vrijwillige onderwerping).
These policies were based on realistic consideration with various
compromises between Dutch colonialism government with Indonesian
people and the leaders. Although in the beginning it had been
mentioned that an Europeanization to the colonial legal system met a
lot of resistance including from their scholars.108

Another main reasons to the difficulty of Auteurswet Stb. No.
600 to be applied or enforced, was that the condition of original local
culture that caused the difficulty for a foreign transplant law to develop.
As a record Auteurswet 1912 Stb No. 600 was an enforced law for
European group (vide Article 162 and 131 IS), Bumi Putera group
might use the law based on 1854 regeringreglement 1854 with the
institution vrijwillige onderwerping. Decades after the enactment of
regeringreglement 1854 as written by Soetandyo proved that the
institution vrijwillige onderwerping rarely used by Indonesian people
which indicated that very few of people who were willing to expand the
jurisdiction of European law. This fact showed us the difficulty of
Indonesian people to let their own custom or culture go. They would
rather to walk on what they believe as laws which were based on the
original paradigmatic value of Indonesia culture and society. Those
who were brave enough to leave the Adat law or their customary law,
are those who came from local societies who were segmented by the
divide and rule legal policy which was launched by Dutch colonialism
government. A lot of records mentioned that the legal policies of
European law legal transplant to Indonesian law which existed earlier

107 Soetandyo Wignjosoebroto, Op.Cit, 2002, p.259.
108 The failure of Dutch colonialism government in running the
Europeanization process from colonial law to the colony did not only because of the
cultural barriers, but because of financial problem in the Dutch government especially
after the enactment of Compatabileitswett in 1864 (Ind. Stb. No. 104) which stated that
the finance for Dutch East Indies administration must be borne by the income of Dutch
East Indies itself. But this finally compounded the development and institution of
European law in the colony

141

would not always work well as expected. The policies to enforce the
transplant law in Dutch colonialism can be seen not to be able to alter
completely the legal perception of Indonesian people. Even in the
court, a varied in concreto verdict which is often to be found indicates
that there were variables of culture which were adhered by the
offenders which cause discrepancy between the judges’ perceptions in
making verdict.109

Auteurswet 1912 Stb. No. 600 was actually not enough just
being supported by legal awareness of Indonesian people which was
derived from the original paradigmatic value of Indonesian culture and
society, because of that, in the enforcement of Auteurswet 1912 Stb.
1912. No. 600 must have a resonant with Indonesian people. So it
could be understood why the European law had to be enforced with a
firm external force. So it was not about severe or mild legal sanction. It
can be proved here the truth about the effectiveness in control theory to
control organizational life which was at a sustainable level would not
work if the development of social structure, (the government
organization in the time of Auterurswet 1912 Stb. No. 600 enactment)
was not in line with the development of normative structure (the moral
and legal awareness of Indonesian people). In this matter, it is
interesting to see Seidman’s conclusion, which was achieved from his
studies about British legal transplant into the colonies in Africa, which
succinctly mentioned in the law of non transferability of law, Seidman
mentioned:110
1. Laws are addressed to addresses (here called “role-occupants),

proscribing their behavior.
2. How a role-occupant acts in response to rules of law is a function

not only of their prescriptions but also of his physical environment

109 The enactment of the book criminal law which was designed by the Dutch
for Indonesian people, during the post of the colonist minister Fransen van de Putte
(1872-1874) was not also altered the whole native concept regarding what is bad and
what needs to be punished. In court, what was meant by wederrechtelijk or unsure in
criminal, always caused a variety in concreto verdict, in line with variety culture in
society. It also happened in the enactment of Staatsblad 1862 No. 52 which required
individuele contractsluiting based on the principle of freedom of contract, was not also
altered the customary pattern of Indonesia society to not bind by ending the contract by
trusting the contract completely to their leaders. This provision contained in the
Staatsblad did not make Indonesian people understand about moral principles which was
contained in pacta sunt servanda adage, see more Ibid, p. 260.

110 Robert B. Seidman, The state Law & Development, St. Maartin’s Press,
New York, 1978, p. 36

142

and of the complex of social, political, economic and other
institution within which he makes his choices about how to behave.
3. The physical and institutional environments of different sets of role-
occupants differ from time to time and place to place.
4. Therefore, the activity induced by the rules of law is usually specific
to tie and place.
5. Therefore, the same rules of law and their sanctions in different
times and places, with different physical and institutional
environments will not induce the same behavior in role-occupants in
different times and places.

Although Seidman did not mention cultures and normative
structures as one determined variable in the matter of the effectiveness
of transplanted foreign law, but he was departing from a basic
assumption about behavior of society by saying that someone’s legal
behavior, will be determined more by his decisions and choices by
considering the most favorable alternative. Then, it can be concluded
that legal norm is just one of many institutional determinant which will
influence the choice or decision of the society. Also, because of that,
law which was derived from the transplant policy from foreign law,
when it had to be run in a territory, it should be suspected that there
would be variety in the acceptance of the law. Here, people would
arrive at one conclusion that the transplanted law would not create the
same effect as it had created in the origin place of the law. That is why
Seidman mentioned that law can not be transferred from foreign place
without “ripping apart” the whole institutional system which has
become the context.

Based on the explanation, it can be concluded that Auteurswet
1912 Stb. No. 600 which was rooted on European legal culture, derived
from the Netherland which was brought by France expedition with a
firm rule of law tradition, could develop in Indonesia through legal
transplant policy which country was accustomed to the traditions of
unpretentious law enforcement and subjected to the local discretion or
wisdom. It is not lawlessness when artisan of batik imitated the pattern
of batik which was made by his colleague in a society that has lived
with family atmosphere. A dancer copies a movement from martial arts
which is taught by his master in dancing or the martial arts is also not
unlawful. Borrowing the theoretical framework stated by Seidman, the
law of non transferability of law, then we can conclude that the
concordance policy by the Dutch colonialism who enforced the
Auteurswet 1912 Stb. No. 600 in the colony was a policy that
contradicted with the basis of cultural values. In this matter, Indonesia

143

has to observe the truth that the rule of law concept is not always if
only understood from law aspects, but the human aspects with every
circle of law around, must also be understood. For this country was not
established only to enforce “the rule of law”, but also the “rule of man”.

Referring to this concept, it is not excessive if advised that the
copyright law which is enforced today, derived from foreign law, with
the choice of legal transplant policy, must be returned to the noble
values which were implied in Pancasila ideology which is the original
paradigmatic value of Indonesian culture and society.

C. Period of Copyright Law number 6 of 1982 (1982 – 1987)
Twelve days on April 1982 were such important days in the

history of protection of copyright law in Indonesia. On that day, the
copyright law which was from the Dutch Colonialism in period of 70
years which has become reference for the jurists in Indonesia, was
ended in its domination. The wet which was recognized as Auteurswet
1912 Stb No. 600 was revoked and stated not applicable and as its
substitution would be the Act number 6 of 1982. As an independent
country with its sovereignty, it is not wise if the law enforced was flatly
from the product of the colonial which for 350 years positioned
themselves as imperialist country. Even though on 17 August 1945,
Indonesia was managed to drive away the colonialist to leave
Indonesia, but on the other side the law domination was not also ended
at the same time the colonialism in Indonesia ended. That means that
the atmosphere post independence was not an independent atmosphere
in a whole meaning. The remains of colonial domination in the field of
law was still being enforced. Even in the field of Copyright, the
independence was actually meant independence on the next 37 years
after Indonesia was managed to replace the position of the colonial
product. The word “was managed to” was put in quotation mark
because not all the legal norms originated by the Dutch colonial was
really replaced. Beside the norms were still dominated the new
Indonesian Copyright law, the weltanschung was still stained the spirit
of the new Indonesian Copyright law.

It cannot be denied that the Articles in Auteurswet 1912 Stb
number 600 haunted the legal norms contained in the Act number 6 of
1982. This following matrix would show that the majority of norms
contained in the Articles in the Act number 6 of 1982 were from
Auteurswet 1912 Stb. No. 600.

Matrix 1

144

Auteurswet 1912 Stb. No. 600 norms transplant into Act No. 6 of 1982
(Norms regarding Copyright Terminology)

Regulated Auteurswet 1912 Act 6/1982
material
Copyright Copyright shall be a sole Copyright shall be a
Terminology right of the Author or the
right of those who are privileged right for the
entitled to the right, on
his creation, in the field Author or those who are
of literary, science, or art
to publish and duplicate, entitled to the right to
with remembering the
limitation provisioned in publish or duplicate or
the law (Article 1)
provide permission for that

without abandoning the

limitations referred to the

enforced regulation

(Article 2)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No.
600 and Act No. 6 of 1982.

Regarding the copyright terminology used in the Act number 6
of 1982 contained in Article 2 was similar with the copyright
terminology contained in Auteurswet 1912 Stb No. 600. The difference
was on the word “sole right” replaced with “privileged right”. Beside
that the substance didn’t show any more difference. The legislator had
no courage to put in philosophical value of Pancasila, such as the value
the belief in the one and only God (Ketuhanan yang Maha Esa). The
legislator had no courage to make a redaction that the copyright was a
right born by the talent given by the God Almighty or born by the
blessing from the God to the human. At a glance, the difference if the
believe in one and only God value was put in and not, was not really
obvious in normative juridical way. But by not applying those kind of
values, it can be seen that the legislator just accepted the concept of
Copyright contained in Auteurswet 1912 Stb No. 600 which was
affected by the capitalism ideology which based on the Western values.
It would bring consequences philosophically in searching hidden
principle behind the legal norm Article 2 Act number 6 of 1982. If
there would be a question regarding what legal principle was hidden
behind the legal norm Article 2 Act number 6 of 1982, then the
legislator could not provide answer except saying that the hidden
principle behind the legal norm was the principle hidden behind legal
norm Article 1 Auteurswet 1912 Stn Nom. 600 that was legal norms

145

based on capitalist ideology and Western law civilization. That is why
this Article 2 in Act number 6 of 1982 was the result of a total
transplantation from Auteurswet 1912 Stb no. 600.

Matrix 2
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding Author Terminology)

Regulated Auteurswet 1912 Act 6/1982
Material
Author Unless proven otherwise, then what A person or some
Terminology is considered as the author shall be people who in their
the person who stated as it is or in togetherness by
that creation, or if the statement is their inspiration
not exist, person whom when the gave birth a
creation announced, stated as the Creation based on
author by the person who intelligence,
announced it. When there is no imagination,
announcement regarding the author, dexterity, skill,
when an unpublished verbal speech craftsmanship,
is being held, or when an poured in a typical
unpublished music creation is being and personal shape.
heard, then, unless proved (Article 1)
otherwise, the person who is
considered as an Author shall be the
person who did the speech or the
person who let hear of the music
creation. (Article 3)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No.
600 and Act No. 6 of 1982.

From the matrix above, it can be concluded that human have

such high dignity in the process of confining a copyrighted work. The

legislator had no courage to put in some redaction that in a process of
creation “intervention from God” inspire every mind, imagination,

dexterity, skill, and craftsmanship possessed by human. Why does the

redaction of Article 1 regarding the Author terminology sound that

way? This is because the legislator believed that the copyrighted work
was born because of the “single, personal, typical skill” of the Author.

The definition in Auteurswet 1912 Stb. No. 600 that only mentioned

146

the Author as the copyright subject without the words “based on his

own intelligence, imagination, dexterity, ability and skill poured in a
typical and personal shape” is much better. The divinity values are not

also reflected in the provision in Article 1 the Act number 6 of 1982,

and that means by not mentioning the divinity values at all as stated in

Auteurswet 1912 Stb Number 600.

Matrix 3
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding protected Creation)

Regulated Auteurswet 1912 Act 6/1982
Material
Protected Protected Creation in literary, Protected Creation in
Creation
science or art by this Act shall science, literary and

be: arts, include:

1. Book, brochure, 1. Book, pamphlet,

newspaper, magazine, or all and all kinds of

kinds of written works. written Creation.

2. Creation of performance 2. Seminar, lectures,

and dramatic music. speeches, and the

3. Verbal speech. similar creations.

4. Choreography and 3. Performance

pantomime Creations. works such as

Which the way of playing it music, karawitan

regulated by a writing or musical, dance

such as it. musical, wayang,

5. Music creation with or pantomine, and

without any verbal. another broadcast

6. Portrait, painting, building, creation for radio

statue, lithography, carving, media, television,

and all kinds of picture of movies and

works. recording.

7. Geographical maps. 4. Music and

8. Designs, sketches, choreography

plastically creatios, which creation with or

connected with without text.

architecture, geography, or 5. All kind of fine

a picture of one place or arts such as

other knowledge. paintings and

147

9. Creations of photography statues.
and cinematography and 6. Architecture
creations done in that kind
of way. works.
7. Map
10. Artificial creations used in 8. Cinematography
any handicraft and
commonly all kind of works
works in the field of 9. Photography
literary, science and art,
with way or any shape works
(Article 10) 10. Translation,

commentary,
adaptation and the
preparation of
potpourri. (Article
11 paragraph 1)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No.
600 and Act No. 6 of 1982.

The kind of protected Creation in Act number 6 of 1982 also
referred to the format and substance contained in Auteurswet 1912 Stb
Number 600, even though there was some increase of the copyrighted
works of native Indonesian society such as karawitan, pewayangan,
even though the art of batik has not been attached in the protected
creation as copyright. But by looking at the aspect of culture of
Indonesia which confine a typical copyrighted creation has been put in
the copyright protected object, it has already been the form of the
original paradigmatic value of Indonesian culture and society. Does the
entry of these two objects of copyright protection which are based on
Indonesian culture was based on one deep study, or it was just a
coincidence, has been a serious question. Because it turns out that
Indonesian real creation such as batik art and martial art such as pencak
silat, were missed from the attention of the legislator that time.

Matrix 4
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding the time period of copyright)

148

Regulated Auteurswet 1912 Act 6/1982
Material
As long as the Author As long as the Author live plus
Regarding live plus 50 years 25 years after his death (Article
time period after his death 26)
of copyright (Article 37)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No.
600 and Act No. 6 of 1982.

The time period of Copyright ownership was different in
Auteurswet 1912 Stb No 600 and in Act number 6 of 1982, but the
limitation still referred to capitalist concept. It was proven with the
provision in Article 26 Act number 6 of 1982 which only lasted for 5
years, after that all Copyright laws born after the Act number 6 of 1982
referred back to Article 37 Auteurswet 1912 Number 600. That means,
the time period of Copyright ownership still given to the Author as long
the Author live, plus 50 years after his death. There was no courage of
the legislator to put in redaction in the Article regarding this time
period of copyright to be referred to Pancasila philosophical value that
is the Humanity value and Social Justice value. The legislator had no
courage to attach the social function of copyright as attached in Article
6 of Agrarian Principal Law of 1960 which stated that every right on
land has social function. The Agrarian Principal Law of 1960 has
arranged well the philosophical values contained in Pancasila. What
can we concluded from the provision in Article 26 of Act number 6 of
1982 is that behind the norm of Article 26 still hidden the legal
principles that based on capitalist ideology.

Matrik 5
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding Copyright limitation)

149

Regulated Auteurswet 1912 Act 6/1982
Material
Copyright By the name of the law the It shall not be considered as
Limitation
decisions or the laws copyright infringement :

released by the general a. The Announcement and

authority, also by verdicts Duplication of the symbol of

and administrational the nation or the song of the

decision , shall not be nation in general character.

considered as copyright. b. Announcement and

Also, there shall be not Duplication of everything

copyright on everything announced by or in the name

that is announced by or in of the Government, except

the name of general when the copyright stated as

authority, unless the right protected both by the

is stated protected both in legislation or with a

in its general by the law, statement on the creation

verdicts, or regulation, or itself or when the creation

in one specific condition announced.

with the announcement on c. A taken over, both in a whole

the creation itself when the or in partial, news from the

creation is being news office radio announcer

published. (Article 11). agency or television and

It shall not be considered newspaper after 2 x 24 hours

as Copyright infringement calculated since the first

a summary or an announcement of the news

adaptation from newspaper and its source must be

or magazine on article, completely mentioned.

news, except in novels or (Article 13)

romance without the

consent from the Author or With requirement that the source
must be completely mentioned,
who entitled to the right, then it shall not be considered as
Copyright infringement.:
by the daily newspaper or a. Any adaptation of another

other magazines, as long it party as much as 10% of one
unity from every adapted
is mentioned the creation as a source to
elaborate the proposed issues..
newspaper or magazine b. A taken over of a creation both
in whole part or in partial in
source and there is no order to defend in or outside
announcement that it’s a court.
c. A taken over of creation by
copyrighted work. Also other party both in whole part

regarding the writings

regarding political

concept. News and any

color, shall not be

copyrighted. (Article 15)

Speech that spoken in

150

public and has not been or in partia; for the use of:

printed and published 1. Seminars which only for

mentioned by the person the purpose of education

who did the speech. and science.

(Article 16) 2. Performance or staging

Limited duplicated without any fees.

creations in a few d. Duplication on creation in the

exemplars used for field of science, art, and

personal use for rehearsal literary in braile for the use of

and study. (Article 17) blind except if the duplication

Creation of picture, was commercial.

paintings, buildings, e. A limited duplication with a

lithography, carving and copy or similar process by a

all kinds of pictures seen common library, science or

publicly if the creation is education institution or a non

being duplicated if the commercial documentation

process of the making center only for the use of its

showed a clear difference activity.

more than the real process f. Alteration done on

of making. (Article 18) architecture work such as

Pictures in any shape building based on technical

duplicated, announced, and consideration (Article 14).

published if the things For the purpose of public security

relate to the jurist purpose and or for the faith the criminal

to reveal any criminal act proceeding, any portrait of anybody

in order to establish public in any condition can be duplicated

order. (Article 22) in any ways can also be duplicated

and announced by authorized

institution. (Article 21)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No. 600 and
Act No. 6 of 1982.

The redaction of the Article regarding the limitation of
Copyright as referred to Article 13, Article 14 and Article 21 Act
number 6 of 1982 is a total transplantation of the provision in Article
11, Article 15, Article 16, Article 17, Article 18 and Article 22 of
Auteurswet 1912 Stb No. 600. The legislator also has no courage to
limit the Copyright in the Divinity values, Humanity values and Justice
values or for example on the copyright which has not been regulated in
this Act shall be subjected to Adat law. For example for the duplication
and translation of scripture from any religion in Indonesia if done
without consent from the translator or the publisher shall be considered
as copyright infringement.

151

Matrix 6
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding non-Copyrighted Creation)

Regulated Auteurswet 1912 Act 6/1982
Material
Non By the name of the law, There shall be no
Copyrighted decisions and regulations
Works released by the general Copyright on:
authority also the verdicts and
administrational decision shall a. The result of
not be considered as
copyrighted works. open meeting of
Also, there shall be no
copyright on anything highest
announced by or in the name
of general authorization, institution of
except when the right stated as
protected both in general with nation or highest
laws, decision or regulation or
in one specific condition with institution.
the announcement on that
creation itself or when the b. Legislation
creation published. (Article
11) c. Verdict or

determination of

the judge.

d. The state

speeches or

government

official speeches.

P

e. Arbitration

(Article 12)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No.
600 and Act No. 6 of 1982.

The provisions regarding non copyrighted works are the
provision which adopted “flatly”. The legislators of Act number 6 of
1982 did not have to express their attention to formulate this article
except enough by translating the provision of Auteurswet 1912 Stb
number 600 to be made as redaction of Article in Bahasa Indonesia
which will be poured in Indonesia Copyright law. These kind of
Articles are still found in the Act number 6 of 1982.

Matrix 7
Auteurswet 1912 Stb. No. 600 norms transplant into Act No. 6 of 1982

152

(Norms regarding the Prohibition of Copyright Use)

Regulated Auteurswet 1912 Act 6/1982
Material

Prohibition The prohibition to The Copyright Holder on
of the use of publish any portrait someone’s portrait, to duplicate

Copyright without the consent or announce his work, has to

of the portrayed have a consent from the

person (Article 20) portrayed person, or in 10 years
The prohibition to after the portrayed person’s

publish any portrait death, with the consent of his

which is contradict heir (Article 18 Paragraph 1)

with appropriate

purpose (Article 21)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No.

600 and Act No. 6 of 1982.

Regarding the prohibition of the use of the Copyright
regulated in Article 18 Paragraph 1 the Act number 6 of 1982, was also
adopted 100% from the provision in Article 20 and Article 21
Auteurswet 1912 Stb. 600.

Also the regulation of moral right as regulated in Article 19
and Article 24 the Act number 6 of 1982 as provided in the matrix
below, also based on the provision of Article 25 Aureurswet 1912 Stb
No. 600.

Matrix 8
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding Moral Right)

153

Regulated Auteurswet 1912 Act 6/1982
Material
Hak Moral The prohibition to Copyright holder shall not be able
change the name of to announce the Copyright on a
the Author, the name portrait if the announcement
of the object of the contradicts with the appropriate
creation and the purpose from the portrayed person
object (Article 25) (Article 19)
The prohibition to change the
name of the Author, the Work, the
title alteration and the supporting
title of the work. (Article 24)L

Source : Data Processed from Articles of Auteurswet 1912 Stb. No. 600
and Act No. 6 of 1982.

Matrix 9
Auteurswet 1912 Stb. No. 600 norms transplant into

Act No. 6 of 1982
(Norms regarding registration system of Copyright)

Regulated Auteurswet 1912 Act 6/1982
Material
Registration Adhere the negative Adhere the negative declarative
system of declarative registration registration system.
Copyright system, Copyright of The Work registration in the
someone on his own general list of the Creation does
work has already not mean as the legitimation on
appeared with the the substance, the meaning or
success of the Work in the form of the creation listed.
producing one work (Article 30)
with no other formality
like the registration.

Source : Data Processed from Articles of Auteurswet 1912 Stb. No. 600
and Act No. 6 of 1982.

The Registration system adhered both by Auteurswet 1912 Stb
Number 600 or the Act number 6 of 1982 is the negative declarative
system. The difference in that the Act number 6 of 1982 regulated
clearly about the provision contained in Article 30. But this provision

154

was actually redundant, because that kind of attachment of that
redaction, in reality did not give any good benefit juridically or
practically. The person who register and the person who do not register
shall have similar treatment in front of the law. Even though one person
registered his right, but if there was another person who can prove
otherwise, then the person who register his right, would have his right
aborted.

Matrix 10
Auteurswet 1912 Stb. No. 600 norms transplant into Act No. 6 of 1982

(Norms regarding Criminal Charges)

Regulated Auteurswet 1912 Act 6/1982
Material

Criminal The offense is the crime on The offense is the crime on

Charges complaint. The crimes on complaint. The crime shall

copyright shall not be only be sued except on the

charged unless on the complaint from Copyright

complaint of the Author or Holder (Article 45)

one authorized person to o Copyright infringement shall

the action to defend the right. be sued with penalty of 3 years

Or if there are two persons or imprisonment and fine at most

more who have authority on Rp. 5.000.000,-.

it, the complaint shall be To publish, show off or sell to

done by them (Article 34) public a creation of criminal

To violate someone’s infringement shall be charged

Copyright at most Rp. 5000,- with 9 months imprisonment

(Article 31). or fine at most Rp. 5.000.000,-

To publish or sell to public .

one work which was known To violate the provision of
as a violation on someone’s Copyright on a portrait, shall

copyright, shall be fined at be charged with a 6 months

most Rp. 2000,- (Article 32) imprisonment or fine at most

To publically perform or Rp. 500.000,- (Article 44).

publish a portrait with no

right shall be fined at most

200 (Article 35, infringement

offense)

Source : Data Processed from Articles of Auteurswet 1912 Stb. No. 600 and

Act No. 6 of 1982.

The Criminal provision contained in both Acts, principally had

the same substances. There was no meaningful difference except on the

adjustment on the amount of the former fine which still referred to the

currency of that time. Even if there was a basic difference was on the

155

crime charged on the subject of the criminal offenders that was the
imprisonment. In auteurswet 1912 Stb number 600 the charges was
more human because it was just a fine. For an economic criminal action
such as copyright infringement, the fine penalty was enough to be
conducted. But nowadays, the copyright infringement has already
reached a place to enrich people without paying attention to the right
and purpose of the Author and Right Holder, then, it is now appropriate
if the offender charged with imprisonment.

Matrix 11
Auteurswet 1912 Stb. No. 600 norms transplant into Act No. 6 of 1982

(Norms regarding Civil charges)

Regulated Auteurswet 1912 Act 6/1982
Material
Civil Civil charges shall be able to The civil charges shall be
Charges conduct by the Author or one of done on moral right
the Authors if the work created infringement (Article 41).
together. (Article 26) The copyright shall
Civil charges on an unlawful provide the right to
action shall be conducted by the confiscate the announced
Author (vide Article 1365 book itemns which is
of Civil Law (Article 27)) contradicted with the
The copyright gave an authority copyright and un-allowed
to confiscate announced items duplication and able to sue
which contradicted with the the hand-over of the item
copyright and also the duplication to be his or to charge the
without consent and also able to item to be abolished or
sue the item as his or sue to make tampered to become un-
the work or itme to be abolished used. The compensation
or un-used. The judge shall be charges shall not decrease
able tom order conduct a the criminal charges on
compensation to the Author. That the Copyright
civil charges shall not decrease infringement ( Article 42)
the criminal charges (Article 28).

Source : Data Processed from Articles of Auteurswet 1912 Stb. No. 600 and
Act No. 6 of 1982.

There is no criticize that can be said on the provision of this
civil charges unless with a sentence that the transplantation on this
Article was conducted flatly and wholly by the legislator.

156

If we pay attention on those explanations, it can be assured
that the forming of Act number 6 of 1982 as an act of national legal
product was not fully referred to the philosophical value of Pancasila.
Whereas the desire of the society of Indonesia was very clear to replace
the Auteurswet 1912 Stb number 600 because the Auteurswet 1912 was
not appropriate with the legal need and goal of Indonesian society. The
national legal goal must be read in the context of Republic Indonesia’s
future goal. The goal with the meaning of hope or desire which
formatted in the world of “idea” was formulated in the ideological basic
and the philosophy of Indonesia that is Pancasila. The legal need of the
society in the field of Copyright that moment was to push the creativity
of the Creator to grow and develop well. To push for the sake of the
better life in intelligence of the nation through the protection of
copyright in science and the acceleration of the widening of the result
of the culture. Whereas the national future goal with this new copyright
was hoped to fulfill the national idealism that was to arrange an
appropriate regulation with the philosophical basis of Pancasila and the
juridical basis of the Constitution of 1945 and operational basis
formulated in the state policy, which was TAP MPR No.
IV/MPR/1978. Because of that, Auteurswet 1912 Number 600 was
stated to be revoked.

The history of the birth of the Act number 6 of 1982 was
stained by various situation and condition, starting with the amount of
copyright infringement until a political situation (law) which was not
siding with the purpose of the Author. The validity period of
Auteurswet 1912 Stb number 600 was marked with the amount of the
infringement in book copyright.

Actually since the beginning of the independence, Indonesia
should have arranged its own regulation which referred to Pancasila
and the Constitution of 1945 as the reference in formulating the
national regulation. Even though in the era of President Soekarno was
stained with political fluctuation and various challenge from in or
outside the nation which still discussed about the existence of the
independence of Indonesia in the era of President Soekarno had been
established the Presidential Decree Number 107 of 1958 regarding the
National Legal Development Institution. The reason to publish the
Presidential Decree was mentioned that because in the time of
colonialism, the Indonesia legal system was having a complicated
deflection and all was done by the Colonial Government to fulfill the
need of the government and the colonialist. In the practice, the Colonial
Government with discriminative legal policy that was to divide

157

Indonesian society into groups and to each group was enacted its own
law, caused the discriminative practice in law enforcement was getting
worse. But on the other side, the government of Indonesia post
independence was not also creating the new legal norms. Because of
that, the legal norms of the Dutch Colonial still enforced. It was hoped
in the transition period a review of the Acts of the Dutch Colonial could
be conducted systematically to fulfill the national legal goal that was a
regulation which was rooted from the Pancasila and the Constitution of
1945. It was realized also by the Government of Indonesia, that the
alteration of the Colonial regulation could not be conducted all in once
but was probably can be done step by step. It was also necessary to
divide the enforced law with the outdated law both written in foreign
language (Dutch) or in Bahasa Indonesia. The existed legal review and
the new process of the making of the law which was planned
systematically in order to build a planned legal system became a very
strong reason of the government that time to build an independent
institution which was called as the National Legal Development
Institution.111 Although on the following days this National Legal
Development Institution altered into the National Legal Development
Agency. That alteration was poured in the Presidential Decree number
44 and 45 of 1974.

The validity period of Auteurswet 1912 Stb Number 600 until
the beginning of the independence, and continued 37 years after the
independence both the National Legal Development Institution and the
National Legal Development Agency had tried to arrange its own
Copyright law which was rooted on the Pancasila and Constitution of
1945 to replace the regulation from the legal products of the Dutch
Colonialism. This national legal system has been formulated in a
seminar held by the National Legal Development Agency on 26 until
30 March 1979 which concluded that the national legal system itself
consisted of the reflection of the values of Pancasila in the regulation
and it made Pancasila and the Constitution of 1945 became the national
legal basis. The national legal system must be appropriate with the
legal need and consciousness of Indonesian society with the function as
a tool to take care of the society. In formulating the national legal
system must refer to principles attached in the political line poured in

111 See more the preamble of Presidential Decree of Republic of Indonesia
Number 107 of 1958 regarding the National Legal Development Institution on 30 May
1958 in J.C.T Simorangkir, Serba- Serbi LPHN/BPHN, Binacipta, Jakarta, 1980. P. 25

158

the outline of the state policy which that time was enacted in TAP MPR
Number IV/MPR/1978 which consisted of:

1. The Utility principle
2. The Togetherness and family principle
3. The Democracy principle
4. The Justice and prevalent principle
5. The livelihood and balance principle
6. The Legal consciousness principle
7. The self confidence principle

These principles were the reflection of the values of the spirit
of Indonesian Nation which was implicated in Pancasila which could
be made as the basis to make the Indonesian rule of law and also could
become a reference or a guide to openly test each born legal products.
From the seminar, it can also be concluded that in formulating the law,
the legislator need to accurately and smartly point the values of
Pancasila as the basis of the normative provision contained in the law.
With that, all of the law both in Acts or in implementing regulation
must not contain values which are contradicting the Pancasila. By other
words, the reflection of the values of Pancasila in the law was the
substance in formulating the national legal system. The national law
also directed in written form, this was meant to create a legal order and
certainty although the unwritten law was still part of the national legal
system. And the policy to unify the law must pay attention to the legal
consciousness of the society.112 The legal consciousness of the society
was also have to be a political consciousness, the consciousness to
celebrate a country and a consciousness of the political legal choices
based from the values of the original paradigmatic value of Indonesian
culture and society.

At last it can be understood that the Act number 6 of 1982
which outline was the result of the transplantation of Auteurswet 1912
Stb number 600 could not run well in the process of the legal
enforcement of copyright law as planned. In its journey in 5 years, the
piracy of copyright was never been worse. Even in 1982 – 1987
Indonesia was listed as the second piracy country after China. The
pressure from the internationals appeared one by one. The pressure was
from the United States of America so that Indonesia respect and
appreciate the copyright especially the foreign copyrighted works.

112 The Conclusion of national legal seminar the IV held by National Legal
Development Agency- Department of Justice, Jakarta 26 – 30 March 1979 in Ibid, p. 327
- 320

159

These pressure and reasons were becoming the consideration to alter
the Copyright Law number 6 of 1982.

The information and data and also the writings from
academicians have arrived at one conclusion that the rate of the
violation and piracy of copyright was already at the worst point. The
damage effect was not only to the Authors and producers but also to the
life of society sectors as the consumers. The damage effect was about
the worsen of the legal culture which was awaken because of the
weakness of legal enforcement. And also the loss which was caused
economically on the Authors, the person who was entitled to the right
who also has influence in the publishing industry, the recording
industry and the film industry. In the connection with those things
mentioned, Charles Gielen prevailed that:

The report from the crowd commonly and especially the
Authors and all kinds of professional association who have
interests in Copyright in the field of song or music, books and
publication, film and video recording and computer, reveal
that the violation of Copyright has increased and now has
reached a dangerous rate that is decreasing the passion to
create. In a wider definition, a copyright infringement would
also endanger the basis of common social life. Of course the
increasing of the violation was influenced by many factors.
The limited definition from the crowd of the meaning and
function of copyright, the attitude and passion to get a benefit
from the business easily , plus the difference of the translation
and the action from the legal enforcement official in facing the
copyright violation was the factors that must be paid attention
to. 113

Gielen’s statement above created a belief on industrial
countries who were bothered economically as the effect or the
Copyright piracy in Indonesia. This events made the President of
United States and European Commission and the World Intellectual
Property Right Organization (WIPO) in January 1987 under the
coordination of Arpad Boqsch (General Director of WIPO) to visit
Indonesia to discuss the steps to alter the intellectual property right
regulation including Copyright law.

113 Charles Gielen, Undang-Undang Hak Cipta Baru Indonesia, Implikasi
Untuk Penanaman Modal Asing, Paper on the Intellectual property Rights Seminar, Law
Faculty USU, Medan, 10 january 1989 p. 6 – 7.

160

The United States has applied a one sided sanction to
Indonesia that was to apply the trade policy as the tool to press the
Indonesian government to fix yhe enforcement system of Intellectual
property Right in Indonesia. The improvement expected by the United
States of America was not only from the legal enforcement, but also in
the substance of the regulation. Even according to Gielen114 the
Government of United States in 1986, announced their intention to
reconsider the preferential status of Indonesia based on Generalized
System of Preference (GSP) (based on the trade and tariff law of 1984).
Indonesia was given a chance until 1 March 1987 to alter the existed
Copyright Law or to establish new Act. The time period was prolonged
until 1 October 1987.

It turned out that until 1 October 1987, Indonesia had finished
to arrange its Copyright Law which was enacted on 19 September1987.
Indonesia, which had already received GSP status in 1980 and
continued in 1985 had the right based on the import duty system to get
a preference to be freed from import duty in the matter of the export to
United States from items or goods in maximum range of price US $ 28
million. Even though this is not a big amount, if calculated in the scale
of international trade, but the withdrawal of the preference of course
would hurt Indonesian economy and prevent Indonesia from getting a
bigger export volume to the United States of America.115

Based on the regulation of the board of the European
Commission Number 2641/84 the steps of the trade policy can be run
to the third counties on the basis of unhealthy trade practices in those
countries. Based on this regulation the International Federation of
Phonogram and Videograms Producer (IFPI) propose a complaint to
the European Commission. This commission stated that there were
enough evidences to begin an investigation.116

On that violation and piracy of many foreign intellectual
property right in Indonesia, caused the appearance of a suspicion from
the internationals that Indonesia did not give any protection on
phonogram reproduction, cinematography, computer program, and
another possessed by foreign Author. That incapability was marked by
the amount of the piracy of phonogram in Indonesia. While it
happened, the European Commission decided to give chance to

114Ibid
115 Official Journal, 20 September 1984, L252 in Charles Gielen Ibid P.9
116 Ibid, p. 9

161

Indonesia to improve the system of law enforcement in the field of
Intellectual until 29 February 1988.

The International pressure, especially from the government of
the United States, has caused the establishment of President Soeharto’s
Decree on 30 July 1986 to create a “Special Work Team to search for
the solution to the problem of the enforcement of copyright law, trade
name and trade mark and the creation of a patent law”. This team had
already implemented its function as useful as possible because in the
beginning of 1987 the alteration design had been published. This design
had been delivered to the House of Representative on June and enacted
as an Act on 9 September 1987 and enforced since 19 September 1987.

Remembering that Indonesia had made the alteration on the
Act number 6 of 1982 and let the European Commission know that
Indonesia was ready to discuss a way out in order to provide similar
protection on the foreign works and the works of Indonesian citizen.117
Which means, even though Indonesia had altered its own Copyright
law, the international pressure would keep on going as long the
violations on the foreign intellectual property is still found in the law
enforcement.

D. The Period of Copyright Law Number 7 of 1987 (1987 – 1997)
After 5 years of the establishment of the Copyright Law of

1982, that was between 1982 – 1982, it turned out that there were a lot
of things happened in the enforcement practice of the act. The influence
of the acceleration of computer technology and information had
changed the cultural behavior and legal behavior of the society, which
in turn also influenced the aspect of Copyright Law enforcement. The
alteration and development of the society was not able to be anticipated
by the Copyright law number 6 of 1982. There was a consideration that
the criminal sanction applied in the Act number 6 of 1982 was too low
or the offense which character was categorized as offense on complaint
made the pirate or the copyright offender became free since the
certainty of the Author or the Copyright Holder would not do the
complaint in the law violation they did.118

117 Decree of 23 November 1987, Official Journal on 25 November 1987,
L335, in Ibid.

118 The seller of the pirated VCD/DVD had the belief that the Author or
producer would not do the complaint because beside they would not know the pace of the
event of the piracy also happened in various locations which were hard to be detected, so
that the complaint was not possible to be done especially the pirated DVDs and VCDs
were belonged to the foreign Author and Producers. It was not possible the Americans or

162

Beside that, there were 4 (four) legal consideration which
became the reason to make alteration on the Act Number 6 of 1982 as
poured in the preamble part consideration of the Act number 7 of 1987
regarding the Alteration of the Act number 6 of 1982 of Copyright:

1. Legal protection is given on the Copyright which was meant
as an effort for realization of a better vibe on the growth and
passion of the creation in the field of science, art, and literary.

2. In the middle of the process of the accelerated national
development, especially in science, art and literary, the
copyright infringement has also developed, especially in the
criminal action as piracy.

3. The Copyright infringement has arrived in a dangerous rate
and could damage the system of society life in common and
especially the passion to create.

4. To anticipate and stop the copyright infringement, it was
necessary to alter and perfected some provisions in the Act
number 6 of 1982 regarding the Copyright.119

Referred to the preamble of the act above, it can be understood
that this preamble was far away from the philosophical values. The
considerations were given more on the practical consideration. The
vibe of the idea, goal, or thoughts which were connected with the
philosophical basis of Pancasila and the national goal as contained in
the opening of the Constitution of 1945 was almost cannot be found in
that preamble above. See the explanation regarding the background of
the alteration of the Act number 6 of 1982 was only based on the desire
to provide legal protection on the copyright (probably to the Author).
The target was very pragmatist. Another consideration used was that
this alteration triggered by the existence of the of the activity to violate
the Copyright in criminal action of piracy which had arrived in a
dangerous rate and it was seen as an action that damage the social life
system in common and the passion to create. Practice and very
pragmatist considerations showed the simplicity the thinking pattern

Indians did the complaint at the Police Department of Medan Baru for instance. This kind
of event is what triggered a massive piracy on phonogram and cinematography.
Moreover, in the practice of piracy in both creations has been ingrained in almost all
places in Indonesia. In various report, 90% of the VCDs and DVDs circulated in
Indonesian market were results of piracy. For more see Tempo Newspaper 8 March 2003.

119 The preamble of the Indonesian Act number 7 of 1987 regarding the
Alteration on the Act number 6 of 1982 regarding Copyright part consideration item a, b,
c, and d.

163

developed in the legislator institution that time. Ideologist-
philosophical considerations which referred to the national legal goal
almost cannot be found in the Act’s preamble. Also the political
pressure factors and international legal policy almost cannot be found
in the basis of the consideration because the political steps which
should be poured in preamble as the political basis in national
legislation were also cannot be found. That consideration was
necessary to see the legal policy outline in anticipating the Indonesian
association in International life in globalization era which was meant as
a trade era which no longer limited by national walls of a country. The
globalization demand was felt by the Indonesian government at the
time the pressure from Internationals to alter the Act number 6 of 1982.

There was a dishonesty of the government and the legislator
institution in arranging the Act number 7 of 1987. International
pressure on Indonesia was hidden and wrapped so tidy so that the
alteration of the Act number 6 of 1982 was seen as an appropriate
alteration. That was why in the preamble of the Act a pragmatist and
practical considerations were the ones that showed up and put aside the
ideological considerations. The steps like that would also gave effect in
the weakening of nationalism vigor and the vigor to fight and hold on
in the pressure of global economic powered by practical and pragmatist
steps like that would be brought to the direction of capitalist country’s
economic development, as seen by Fukuyama.120

Actually since the beginning, the founder of this nation hoped
that this country was built on the basis of Pancasila which contain the
religious belief inside it. What was actually hinted by the founder of the
nation was to anticipate both ideology predicted Fukuyama as the
holder that were capitalist and liberal democracy ideology. The
winning of both ideologies by Fukuyama was predicted would still
survived until the next century because both ideology were based on
very elements. Maybe that was caused the Indonesian choice when
arranging the Act number 7 of 1987. The consideration based on
practical, pragmatist and rational consideration. On the other side,

120 Fukuyama in his writing predicted that this world would end with the
winning from liberal and capitalist democracy. The democracy has influenced so much
political thought in the whole world and given birth hundreds or even thousands books
which spoken and considered as the only form of political ideology which is the most
ideal in the whole world. While capitalism even though caused a lot of controversy and
pro-contra but still was the ideology which attracted a lot of people. Capitalism promised
economic welfare and political justice which can be reached by human through
hardworking and self-ability in maximum. See more Francis Fukuyama, The End of
History and The Lost Man, Penguin Books, London, 1992, p. 69.

164

Pancasila was not only put the consideration and the political choice
based on pragmatist, practical, and rational choices. Since the
beginning, the founder of the nation admitted that the Indonesian
independence was realized not based on rational predictions but based
on irrational predictions. That was why in the opening of the
Constitution of 1945 it was asserted that Indonesian independence was
realized on the blessing of the only one God. If the rational
consideration used by Indonesia, it was not possible Indonesia reached
its independence with the bamboo weapon against more modern
weapons used by the colonialist (Netherlands, Japan, and the alliance).
It was also not possible Indonesia achieved its independence if the
diplomacy struggle was just done by some educated people compared
to the opposite side who had better education that time. Once more, that
proved that there were irrational considerations in the political choices.
The choice on the national country for example, which was based on
the difference on tribes, or groups of the society which became the
basis of civil society, religion and belief which was necessary as a
target to achieve the goal of the history.121

For the case in Indoneisa, the elements of religion and belief
borrowed the thought of Fukuma should also made as the target to
achieve the legal future goal. the element of religion and belief would
still dominate the journey of the civilization of Indonesia, even though
in the end capitalism would take control but the achievement there
would take a long time. If since the beginning in many process of the
law making, legislation policy in this country made Pancasila as the
basis of the ideology, it can be predicted that capitalism would be
extinct with a new alteration. There was a belief that the history moved
in circle pattern, if the religion factor and the belief could not be erased,
then the sovereignty (politic and ideology) must be altered. Also in
liberal democracy and capitalist ideology would fall down since no one
could make sure that the liberal democracy can make people to rule in
even, or became leaders, and capitalist ideology could make people rich
or poor. Both ideology could not make people to be in a same spot to

121Fukuyama, Ibid . Also compare it with Ian Adams, Ideologi Politik
Mutakhir Konsep, Ragam, Kritik dan Masa Depannya, Qalam, Yogyakarta, 2004, p. 459
by citing Bell, Ian Adams concluded that Bell and Fukuyama, both showed that the West
with welfare state genre and mixture economic system has achieved the end of
ideological era and enter the last era of history which is like freeing the human from
frustration and realizing the aspiration to get the living standard with the choice of
capitalist ideology and liberal democracy which by Ian Adams called as triumplasme
ideology (the winner’s ideology)

165

enjoy happiness. People would not be in the same position to be
provided by justice. People could not all be smart or be appreciated.
When the most support achieved by someone or a group of people, then
he is going to be the winner, but the winner shall never be appointed as
the winner by the losing one. Here was when the new phase of the
history began, moved in circulation.122

In legal perspective, Indonesian law which would be arranged
was the law based on the spirit contained in Pancasila ideology. It was
not the law which directed the society to become capitalist society with
liberal democracy political system. Pancasila ideology is indeed not
rational. It was not like liberal democracy ideology and capitalist
ideology which counted on rationality. Rational always rooted on brain,
but irrational rooted on mind. The world was believed not only run
based on considerations of the brain but also with the deepest mind. In
liberal democracy ideology and capitalist political choice was not based
on the mind, but on the brain.123

This choice of ideology is very important because if the
ideology was chosen based on the brain’s consideration, it can be
ascertained that human has entered a very dangerous spot because the
effect appeared after that would be a “bad” ideology. If this bad
ideology was believed by a leader for the continuance of the human
civilization forth, what would be happened is chaos. Because of that, it
is wise if the laws o the legislations arranged must based on the right
choice of ideology. And for the case in Indonesia, there is no other
choice except Pancasila ideology. It is wise if the legislators open their
mind and heart to understand clearly the relation between ideology and
the legal policy run by the leader. It is necessary so that since the
beginning it can be realized what kind of norm shall be formulated in
the legislation formulated as national legal policy.

So, the process of the making of Act number 7 of 1987 should
not be based on the considerations attached in the preamble of the Act
above. It was not also to tightening the legal sanction in the
infringement or the criminal action in copyright piracy. The pressure to
strengthen the legal sanction on criminal action actually had let down

122 The description was described in Al-Quran. That the sovereignty would be
altered, nothing is eternal, and nothing last forever except The God that is Allah. That
was put by the founder of the nation as ideological basis that was placed in the first
principle which is the spirit of the other four principles.

123 The appearance of this ideology was begun since the renaissance which
was based on the rationalism ideology.