DELIK BIASA VS DELIK ADUAN DALAM UNDANGUNDANG HAK CIPTA KAJIAN YURIDIS DAN PRAGMATIS

Henry Sulistio Budi

Abstract


Under
the
subject
of Intellectual
Property Rights
(IPR),
copyright
is
conceptually a private right. The IPR regime and its legal system, except copyright, introduce a system called crime by accusation (delik aduan). For copyright system, on the other hand, the law applies a common offense system (delik biasa). In its implementation, the system is deemed so excessive that it is not in favour ofcopyright holders. The government is now considering amending the existing Copyright Law Number 19 of 2002 which would harmonize the criminal system with patent, trademark and other facets of IPR law. It should be noted that the prevailing law allows police to directly take legal action to confront illegal practices ofcopying, distributing, selling and importing pirated products. The system is also open to any party to participate in making reports related to suspected copyright infringement. By this mechanism, the system really has a power or a strong driving force to protect copyright works. Undoubtedly, there is no single rule in determining the best and most effective system to combat piracy. It is certainly up to the national policy to decide after considering all relevant aspects, both theoretical and pragmatic approaches. As a tool ofsocial engineering, the law is characterized as having a strategic role in realizing a well respected society. It is expected that Copyright Law would create a conducive climate for the society to be more creative andproductive. At the same time, it would also establish a strong legal culture, especially to respect others J rights and interests. In a diverse territory like Indonesia, classic problems such as the weakness of legal understanding and the lack of awareness among society result in wide-spread piracy practices. In this situation, there is no reason to change the criminal system into crime by accusation. A pros and cons assessment has been studied, not only in the optic oftheory, but also on its realities andpolicy aspects. This article concludes that it is advisable not to change the system due to the fact that no critical massjustifies such proposal.

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