By: Ichwan Anggawirya

Copyright is a form of intellectual property that is intangible and is a property right. One of the characteristics or principles inherent in property rights is the principle of droit de suite, the principle of the right to follow the object. The right to claim will continuously follow the object, regardless of who possesses it.

As an intangible property right, copyright protection is reminiscent of ownership. Ownership guarantees the owner the freedom to enjoy and to freely undertake legal actions concerning their property. The object of ownership can be copyright as an intangible intellectual property. Regarding copyright, the creator or the rights holder can transfer all or part of the copyright to another person through inheritance, gift, will, or other means.

This proves that copyright is a right that can be owned, can be an object of possession or ownership, and therefore, the conditions for ownership apply to copyright, both regarding its use and its transfer. It can also be understood that the protection provided by law to copyright is to stimulate or encourage the activities of creators to continue creating and be more creative.

The creation of new works or existing works must be supported and protected by law. The form of this protection is enshrined in laws by imposing civil and criminal sanctions on those who infringe copyright unlawfully. One form of copyright dispute resolution is through mediation.

Article 95 paragraph (4) of Law Number 28 of 2014 concerning Copyright (Copyright Law) stipulates that in addition to copyright and/or related rights infringement in the form of Piracy, as long as the parties in dispute are known and/or are within the territory of the Unitary State of the Republic of Indonesia, they must first attempt dispute resolution through mediation before pursuing criminal charges. Based on these provisions, what is interesting is the existence of dispute resolution through mediation, even though copyright infringement can lead to criminal prosecution.

An interesting aspect related to mediation in criminal proceedings is whether it is beneficial or detrimental to the victim, as mediation is generally conducted for civil dispute resolution. Then, how effective is mediation in resolving criminal copyright infringements?

Humans inherently have certain views on what is good and what is bad. These views are always manifested in certain pairs, for example, the pair of order and tranquility, the pair of public interest and private interest, the pair of preservation and innovation, and so on. In law enforcement, these pairs of values need to be harmonized; for instance, harmonization is needed between the value of order and the value of tranquility. This is because the value of order is based on attachment, while the value of tranquility is based on freedom.

In life, humans certainly need both attachment and freedom in a harmonious form. These harmonized pairs of values require more concrete elaboration in the form of legal rules that may contain commands, prohibitions, or permissions. Most criminal law rules contain prohibitions against certain actions, while civil law has rules that contain permissions.

It is known that copyright dispute resolution is regulated in Chapter XIV of the Copyright Law concerning civil matters, and also in Chapter XVII of the Copyright Law concerning criminal matters. In alleged copyright infringement, mediation must be carried out first before criminal law enforcement. This is as stipulated in Article 95 paragraph (4) of the Copyright Law, which states that in addition to copyright and/or related rights infringement in the form of Piracy, as long as the parties in dispute are known and/or are within the territory of the Unitary State of the Republic of Indonesia, they must first attempt dispute resolution through mediation before pursuing criminal charges.

Mediation is generally a form of out-of-court dispute resolution in the civil realm. The question is, is mediation possible in the criminal realm, especially in copyright cases? According to the author, mediation can be possible in resolving copyright cases, even if the case falls under the criminal realm, as long as the case is not related to piracy. This type of mediation is called penal mediation.

According to Umi Rozah, penal mediation is a process that brings together victims and perpetrators of criminal acts, who have agreed to participate in resolving the problem with the help of a mediator. Penal mediation is a manifestation of restorative justice, which emphasizes the fulfillment of justice for victims and perpetrators of criminal acts and places their position as important parties to be restored.

Penal mediation can be carried out for criminal acts that are offenses requiring a complaint, thus requiring a report from the victim. This is as regulated in Article 120 of the Copyright Law, which stipulates that criminal acts concerning Copyright are offenses requiring a complaint. This means that law enforcement officials will not act if there is no complaint from the aggrieved party, even if law enforcement officials are aware of the violation. Based on this, the mediation provision referred to in Article 95 paragraph (4) of the Copyright Law is penal mediation.

According to the author, the provision to carry out penal mediation before pursuing criminal proceedings is an advancement in efforts to provide legal protection to creators or copyright holders. This is because the main objective of legal protection for creators or copyright holders is the protection of their economic rights. Therefore, penal mediation in resolving copyright cases as a basis for resolving criminal acts is a resolution aimed at the creator or copyright holder receiving compensation rather than imprisoning the perpetrator.

The interests of the creator of an artwork are interests that must be protected by the state. This is because the creation process of a work requires a great deal of time, effort, and thought. Considering the sacrifice and effort of the creator of the work, it is fitting for the state to be present in protecting the individual interests of the creator of an artwork. The author believes that it can be concluded that when legislation has regulated positive measures in an effort to provide legal protection to creators or copyright holders as stipulated in Article 95 paragraph (4) of the Copyright Law, it leads to the achievement of legal effectiveness.

The effectiveness of penal mediation in resolving criminal copyright infringements lies in the state's effort to provide protection for the economic rights of creators or copyright holders. Therefore, penal mediation in resolving copyright cases as a basis for resolving criminal acts is a resolution aimed at the creator or copyright holder receiving compensation rather than imprisoning the perpetrator.

The author's suggestion to the government is that there is a need for socialization to the public, especially to law enforcement officials such as the police, to prioritize penal mediation before processing copyright offenders through the legal system. This needs to be done to create a win-win solution for both the victim and the perpetrator, so that there is no greater loss for the victim and the perpetrator.

*Ichwan Anggawirya, S.Sn., S.H., M.H.

Founder of IndoTrademark.com and Intellectual Property Expert
Alumnus of Visual Communication Design, IKJ
Alumnus of Master of Law, UBK
Doctoral Candidate in Law, UNS