Transcription
I depart from my thesis, I try to discuss from the perspective of legal philosophy. Why do gravestones appear in the graveyard of copyright? So, if we look at the development or what we call disruption, we go through the same trend for a long time. Suddenly, we face a change whose pattern is completely different, so we feel it as a fracture. Now, as we witness, for example, during the digital revolution, the 4.0 revolution, the law did not change. For example, Law Number 28 of 2014 concerning copyright did not change. For example, Article 10 there still formulates the manager of a trading place. Meanwhile, piracy and copyright infringement have shifted from physical piracy to digital. Copyright infringement follows technological developments, but the law does not change, so the law lags behind societal developments. Head rahiming ah deitenan. The law lags behind developments in society.
Now, from a philosophical perspective, the gap, the chasm, or the gaping abyss between law and dynamics in fact is called a lacuna or its plural, lacunae. From a philosophical perspective, there are at least three lacunae. The first is the extra-legem gap or preter-legem gap. The preter-legem gap occurs due to a legal vacuum, so when there is a new case or a new problem, the law is unable to encompass or anticipate the new problem. The second is the technical gap. The law exists, but it is not accompanied by procedures, so it is then called a sui generis gap. This means there is a gap within the law itself. The third is the axiological gap. The law is detached from the rules or the purpose of why the law was formulated, or formulated, or established.
Now, from these three lacunae, we also need to know why lacunae occur. The first is when the law is formulated, when the law is made, the lawmakers photograph or what is called the momentary legal system, photographing a slice of time or a temporary synchronization while society changes. It is possible that when Article 10 was made, piracy was done physically. For example, vinyl records, compact discs, or cassettes at that time, so Article 10 in 2014 was considered fair, or considered adequate, or considered relevant. But then disruption occurred, technological revolution occurred. We use the term revolution because revolution changes rapidly, even breaking its roots.
Now, the second is caused by the limitations of language. So, positive law is burdened by the limitations of language, as legal language is formulated rigidly because it emphasizes legal certainty. This inherent flaw of positive law is also acknowledged by legal positivists, who, if we look at the most rigid school of thought, even the most rigid school of thought like legal positivism eventually opens up or provides solutions and accepts what is called legal interpretation.
So, regarding this issue, when a lacuna occurs, what can be done is amendment by the lawmakers. But if the lawmakers do not do it, then judges can do rest finding. That is for ordinary courts, interpreting the meaning of laws or articles of law without changing the text. But for the Constitutional Court, this is my subjective opinion. For example, expanding the meaning of Article 10, which is inadequate for the manager of a trading place, judges can perform theological interpretation. So, reading Article 10 scripturally fails to grasp the principles within Article 10. Because Article 10 was formulated to protect the moral and economic rights of creators, which are guaranteed by the constitution, guaranteed by Article 28C paragraph 1 and Article 28D paragraph 1 of the 1945 Constitution. So, everyone has the right to utilize art and develop their abilities. So, Article 28 guarantees the natural rights of the creator.
Now, in this context, when a major lacuna occurs, I call it not just a lacuna, but a major lacuna. A major lacuna is a gaping abyss, which is why gravestones appear in the graveyard of copyright. So, the first question is, is it permissible to violate copyright in the name of the public interest? How do the paradigm differences between Locke's thought and utilitarianism, especially benthamite utilitarianism, clash?
So, actually, Locke's thought criticized Robert Filmer's work, Patriarcha, which argued that kings are not chosen by the people but appointed by God. Therefore, the king is God's representative. Because he is God's representative, all of this belongs to the king. Then Locke's critique as an antithesis to Robert Filmer. On the first thesis or proposition, that God created the universe for humans. Second, the second proposition, that God created humans with all the potential inherent in them. The third proposition, that with the potential inherent in them, humans intervene in the universe.
Now, when humans intervene or interact with the universe, they produce products, whether intangible or tangible or intangible. For example, if it's intangible, ideas, concepts, will. Now, that product cannot be taken away, cannot be separated from the intervener, not even by the king. So, that's the first point. Then, if connected with utilitarianism, the greatest happiness of the greatest number. Then, can this be a justification for copyright infringement if it is for the interest or benefit of many people?
Now, from these two opposing thoughts, we seek synthesis, thesis, antithesis, and synthesis. Seeking balance, as Prof. Agus just mentioned. Of course, copyright, the creator's creation, must not be violated. But there are, for example, if it is for education, then it is permissible. But it is not permissible for everyone to violate arbitrarily, for example, to mutilate, to mutilate the work or distort the work. Because copyright is the result of original creative effort. So, so that's the balance. Even if, for example, in the context of this case, a digital service platform, then of course, it must get permission from the creator and is prohibited from mutilating or distorting.
The second point is, if copyright infringement occurs, can a digital service platform be held accountable? So, if there were no digital service platforms, piracy would be localized. For example, if a television station broadcasts piracy. Then, when the television finishes or we turn off the television, it's over, it's not spread. But these digital service platforms, for example, upload, upload or download, then share, spread, for example, mutilation of copyrighted works, it can spread everywhere. So, and does it meet the elements of trade, for example, social media, we imagine social media as nonprofit oriented. Whereas what is called social media, if you are not paying, you become the product. What does that mean? For example, this is no longer common knowledge. How the Cambridge Analytica scandal or the Facebook case, how they monetize data, for example, it can be for advertising purposes, it can be for political purposes. So, and in this era of virtual reality or augmented reality, what is called capital is not just money, but also data. Big data. So, someone is powerful not by how wide the territory they control, but by how wide the data they control. So, that's it.
Then, the next point is about this, indeed, it's a question, if a major lacuna occurs, what about the Constitutional Court? Is it permissible, for example, to expand the meaning or, if more progressive, to add, for example, a norm, the meaning of the phrase "place of trade management" to, for example, "place of digital-based trade management"? Indeed, as we know, the Constitutional Court is a negative legislator, but I have researched seven decisions from the Constitutional Court that are praised, that are praised, as I mentioned, that are praised, for example, Constitutional Court Decision Number 21 of 2014, which tested Law Number 8 of 1981 concerning the Criminal Procedure Code, Article 77 letter A. Previously, it was stated that it was limited to pre-trial, the legality of arrest, detention, and prosecution. Then the Constitutional Court expanded the scope of pre-trial by adding norms, even stating, affirming that Article 77 paragraph A is contrary to the Constitution as long as it is not interpreted as the determination of suspects, searches, and seizures. This is a positive legislator because, based on the arguments I read, to bring the law closer to substantive justice because there is an issue of constitutional rights, there is an issue of human rights, and if we only wait for the formation of laws by the legislator, it will harm the constitutional rights of citizens, human rights, and this context is considered a landmark decision, and I am not comparing it with others, but it means that similar things should be treated similarly.
Then, from the government's side, how can there be constitutional damage while there is no norm regulating it? That is what I just called the preter-legem gap or extra-legem gap. Precisely because of the absence of regulations or the law exists but is not relevant, not functional because it lags behind societal developments. The facts regulated are no longer relevant, so the law is unable to encompass, to anticipate new problems. Precisely that absence of regulation then causes constitutional damage. The second is the axiological gap. The norm exists, but that norm is detached from the purpose. So, we understand that what is called regulation is not just lex but us, so here it is not just lacuna legis but lacuna us. So, that's why we must also delve into the semantic meaning and also delve into the purpose of the law itself.
Then, the next point is why haven't we ratified international conventions, but why is there a gap in Indonesia? If we look at legal developments, it protects tangible property rights more. So, if we look from the Agrarian Law to property law, which is called tangible, existing property, whereas there are also intangible rights, such as intellectual property rights. Even in development, if we look at the development of civilization, intellectual property rights have a great contribution. If we look at how since the Renaissance, Alf Klarung, and in the current virtual reality era, these are also contributions from ideas and concepts. That's why they also need to be appreciated. So, this conventional perspective also needs to be balanced or to see the changed context. If in the past, protection was only given to tangible property, I think now it needs to be added. We have entered the era of virtual reality or what is called augmented reality. Reality has increased. Thank you.
Now, the next point is there is a debate between two legal schools of thought or schools of thought, namely sociological jurisprudence and the historical school. Sociological jurisprudence argues that law is placed before society, then law engineers societal consciousness and behavior, or what is called law as a tool of social engineering. Meanwhile, historical jurisprudence argues that law is not made but develops along with societal development. Sociological jurisprudence tends to be modernist, while historical jurisprudence tends to be conservative or maintain the established order.
Now, the synthesis is that we seek synthesis. I like to think dialectically. The synthesis is progressive law, especially as conveyed by Professor Satjipto Rahardjo. So, if sociological jurisprudence is the thought of Roscoe Pound, who added a new dimension. If previously law was only a dimension of maintaining order and resolving disputes in court, a new dimension was added: law is also a tool of social engineering. Prof. Satjipto Rahardjo, an Indonesian legal thinker, added a new dimension and at the same time criticized the rigidity of legal positivism. He famously questioned whether law is for humans or humans are for law. To borrow Prof. Satjipto Rahardjo's thought or modify it, imagine a hat. If this hat is not big enough for the head, it's not the head's size that should be reduced, but the hat's size that should be enlarged. In this context, if Article 10 is considered inadequate, irrelevant, or insufficient for the "head," so to speak, then the norm and meaning of Article 10, which previously referred to the manager of a trading place, should be expanded to include the manager of a digital-based trading place. That is the way of progressive legal thinking. Thank you. Yeah.