LAW ENFORCEMENT AGAINST THE CRIME
OF SOFTWARE PIRACY
By: Mochammad Fauzy
NIM: 1214210191
Faculty of economic and Business Pancasila
University
2014/2015
CHAPTER I
INTRODUCTION
A.
Background
Modern and traditional societies are constantly
dealing with Rights Intellectual Property (IPR) even in every aspects of life, modern
and traditional societies always depend on the objects or good by the
Intellectual Property Rights. Modern and traditional society’s life styles are
obliged to always rely in technology and science.
Modern and traditional societies are highly
benefited with the science and technology nowadays. But, it doesn’t mean they
can do anything without dealing with the modern society needs. The existence of
technology is considered very useful for modern and traditional societies. The
existence of technology also changed both of the modern and traditional
society’s life. They become a consumerist society, not only for technology but
also to other basic needs. Modern and traditional societies are always in touch
with the right intellectual property.
Intellectual property rights (IPR) are the rights
given to persons over the creation of their minds such as art, technology, etc.
They usually give the creator an exclusive right over the use of his/her
creation for a certain period of time. The creation must be protected, because
it would be disadvantages to the creator. The free trade are requires higher
quality and trigger the development of technology to support those needs. The
role of intellectual property rights in supporting the development of
technology would have to realize its existence. Protection of intellectual
property rights are used to encourage the appreciations and build the society’s
respect attitudes to the persons who create the technology. The appreciation is
more touching to the moral dimension, while the respect is more to the economic
aspects. Those two aspects are related between each other, because if the moral
dimension is emphasized, the essential element of economic aspect will not be
met, as well as conversely.
The protection of intellectual property rights is a
protection of proprietary rights, namely the right to enjoy the economy
benefits for the invention discovered by the inventors because it economical,
exclusive rights contained in intellectual property rights serves to legalize
the owner to monopolize its use or to enjoy the results given by the
intellectual property. The law protects and prevents other people to take
advantages of the creation inventors without any permission from the inventors.
One of the reasons for granting exclusive rights by the state to IPR owners is to
recognize of their works and encourage them to be more develop. The main
purpose of the regulation of property rights intellectual in the law is to
provide recognition and legal protection for the rights holders in the form of
exclusive rights possession of his creation and regulate the use of his/her
creation for a certain period (Hendry Soelistyo, 2011:21)
The development in technology is the root of IPR
infringement, especially for the violation of software copyright. This is one
of the problems that have touched the society. Needs of computer programs and
tolls are no longer be separated of today’s modern life. It’s caused by the
function of the software to run the hardware functions to various computer and
gadget.
The need for software and economic capabilities for
users are make a new problem in obtaining the legal software. In general the
price of software are highly expensive and of course with a powerful and
sophisticated as well. That might be put the consumers should looking for he
alternative way to facilitate the consumers to obtain the software which is not
only complies the requirements but also the economic capabilities.
The solution to have cheap and sophisticated
software can be done with buying the pirated software which is sold in the
market and doesn’t require long time and high fees for the software. Software
piracy is phenomena which were encountered in our live. Legally piracy is
against the law and opposed with the protection of exclusive rights. But in
reality we encountered many pirated software in Indonesia. One of the reasons
why using the pirated software is more efficient and low budget and also almost
the same with the original software. Although, in Indonesia already has a legal
instruments which is regulate the fields of rights of copyright, but the
enforcement of the criminal offense of copyright is still in the underground
level. Only with the rules we cannot guarantee the reduction of copyright
infringement.
B. Formulation of the Problem
1.
How the law
enforcement against the piracy software?
2.
Are there any
constraints faced by the police to efforts against the piracy software?
C. Research Objectives
1.
Knowing the law
enforcement efforts to against the software piracy
2.
Knowing the
constraints faced by the police to efforts against the piracy software
CHAPTER II
LITERATURE REVIEW
A.
Law
Enforcement
1. Definition of
Law Enforcement
Law enforcement broadly refers to any system by which some members of society act in an organized manner to enforce the law by discovering, deterring, rehabilitating or punishing persons who violate the rules and norms governing that society.[1] Although the term may encompass entities such as courts and prisons, it is most frequently applied to those who directly engage in patrols or surveillance to dissuade and discover criminal activity, and those who investigate crimes and apprehend offenders,[2] a task typically carried out by the police or another law enforcement agency. Furthermore, although law enforcement may be most concerned with the prevention and punishment of crimes, organizations exist to discourage a wide variety of non-criminal violations of rules and norms, affected through the imposition of less severe consequences.
2.
Law
Enforcement Officer Law
A law enforcement officer is a government employee who is responsible for the prevention, investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws, including an employee engaged in this activity that is transferred to a supervisory or administrative position; or serving as a probation or pretrial services officer.
Federal law enforcement agents have duties similar to those of local police officers. These agents enforce the law, investigate crimes, preserve evidence, write reports for government prosecutors, apprehend fugitives, and testify in court.[3]
Federal law enforcement agents have duties similar to those of local police officers. These agents enforce the law, investigate crimes, preserve evidence, write reports for government prosecutors, apprehend fugitives, and testify in court.[3]
3. Factors Affecting the Law Enforcement
Law enforcement is the material and formal law. Law enforcement was influenced by several factors such as (Soerjono Soekanto, 2007: 5):
a. Legal factors. In the process of law enforcement, the law itself is one of the factors that determine the successful of the law enforcement. But, it is not with the perfect implementation of law enforcement, it is because there are problems caused by such things as not followed by the principles and the guideline of legislation and the second thing is the absence of the implementation rules to apply the legislation (Soerjono Soekanto, 2007: 17-18).
b. Tools and Facilities Factors. With the support of adequate facilities for law enforcement will be able to done well. Tools and facilities which is human resources, good organization, qualified equipment, and adequate financial resources. If the facility can be fulfilled the enforcement of the law would run up (Soerjono Soekanto, 2007: 37).
c. Society factors. Law enforcement is derived from the people and for the people. Therefore, the role of the public in law enforcement also crucial. Litigious society would have to know which one is the right and obligation for them, they will develop their needs in accordance with the applicable rules (Soerjono Soekanto, 2007: 56-57)
B. Definition of Criminal
1. Definition of Criminal Offense
In ordinary language, the term crime denotes an unlawful act punishable by a state.[4] The term "crime" does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence (or criminal offence) is an act harmful not only to some individual or individuals but also to a community, society or the state such acts are forbidden and punishable by law.
2. Types of Copyright Infringement
Copyright infringement happens when copyright materials are used without the permission and have similarities. But the creator must prove the materials are belongs to him/her (Andi Hamzah, 1996: 13). There are types of copyright infringement which are (Elyta Ras Ginting, 2012: 200):
a. Direct Violation
Direct violation is an act which is directly violates the copyright that violate the exclusive rights granted to creators to multiply the product, publish and rent a creation without permission from the creators. The term is not used in direct violation of the constitution editorial copyright laws, but it is implicit in the editorial of article 2, 20, and 49 copyright constitutions (Elyta Ras Ginting, 2012: 202)
A violation reproduce or publish a creation is prohibited under the copyright if the creator didn’t give a permission and can be divided into two types which are (Elyta Ras Ginting, 2012: 203)
1. Reproduction with reproduce. Copyright law has defined broadly about the actions and reproduces a creation unlawfully. In chapter elucidation of Article 2 paragraph (1) of law copyright mentioned the reproduce actions include:
1. Translating
2. Adapting
3. Arranging
4. Sells
5. Rents
6. Lend
7. Importing
8. Showcase
9. Demonstrate to public
10. Broadcast
11. Recording
12. Communicate to the public through mass media
2. Reproduce a creation materially. The actions can be done in various ways, for examples, copy paste, load the same image, re-record, or copy the creation (Edmon Makarim, 2005: 17). The action of creation materially reproduce a creation is can be seen and with the help of high technology it become easier to duplicate the copyright creation (Elyta Ras Ginting, 2012:210).
b. Indirect violation
Indirect violation in the field of copyright in general related to the creation and result the copyright infringement. Conventionally, indirect violation of copyright carried out by the way of trade or import of copyright infringing goods (Elyta Ras Ginting, 2012: 216). Forms of copyright infringement indirect or direct infringement in the Copyright Constitution provided for in Article 72 paragraph (2) "Broadcasting, exhibit, distribute, or sell to the public a creation resulted from the infringement of copyright or related rights."
3. Criminal Charge and Civil Copyright Infringement
Legal protection of copyright is one of the most important parts in providing legal to the creator for his/her creation. In act No.19 of 2002 on Copyright has been assigned civil and criminal penalties for any person who commits a violation of copyright.
a. Criminal Charge and Civil Copyright Infringement
Criminal violations are violations that are intentionally made to produce or publish copyrighted material. This offense qualified as a criminal offense to show, distribute or sell a violation of copyright material (Endang Purwaningsih, 2005: 6). Law No. 19 of 2002 on Copyright regulate in detail the criminal acts of copyright infringement by the threat of punishment, as listed in the table below:
a. Legal factors. In the process of law enforcement, the law itself is one of the factors that determine the successful of the law enforcement. But, it is not with the perfect implementation of law enforcement, it is because there are problems caused by such things as not followed by the principles and the guideline of legislation and the second thing is the absence of the implementation rules to apply the legislation (Soerjono Soekanto, 2007: 17-18).
b. Tools and Facilities Factors. With the support of adequate facilities for law enforcement will be able to done well. Tools and facilities which is human resources, good organization, qualified equipment, and adequate financial resources. If the facility can be fulfilled the enforcement of the law would run up (Soerjono Soekanto, 2007: 37).
c. Society factors. Law enforcement is derived from the people and for the people. Therefore, the role of the public in law enforcement also crucial. Litigious society would have to know which one is the right and obligation for them, they will develop their needs in accordance with the applicable rules (Soerjono Soekanto, 2007: 56-57)
B. Definition of Criminal
1. Definition of Criminal Offense
In ordinary language, the term crime denotes an unlawful act punishable by a state.[4] The term "crime" does not, in modern criminal law, have any simple and universally accepted definition, though statutory definitions have been provided for certain purposes. The most popular view is that crime is a category created by law; in other words, something is a crime if declared as such by the relevant and applicable law. One proposed definition is that a crime or offence (or criminal offence) is an act harmful not only to some individual or individuals but also to a community, society or the state such acts are forbidden and punishable by law.
2. Types of Copyright Infringement
Copyright infringement happens when copyright materials are used without the permission and have similarities. But the creator must prove the materials are belongs to him/her (Andi Hamzah, 1996: 13). There are types of copyright infringement which are (Elyta Ras Ginting, 2012: 200):
a. Direct Violation
Direct violation is an act which is directly violates the copyright that violate the exclusive rights granted to creators to multiply the product, publish and rent a creation without permission from the creators. The term is not used in direct violation of the constitution editorial copyright laws, but it is implicit in the editorial of article 2, 20, and 49 copyright constitutions (Elyta Ras Ginting, 2012: 202)
A violation reproduce or publish a creation is prohibited under the copyright if the creator didn’t give a permission and can be divided into two types which are (Elyta Ras Ginting, 2012: 203)
1. Reproduction with reproduce. Copyright law has defined broadly about the actions and reproduces a creation unlawfully. In chapter elucidation of Article 2 paragraph (1) of law copyright mentioned the reproduce actions include:
1. Translating
2. Adapting
3. Arranging
4. Sells
5. Rents
6. Lend
7. Importing
8. Showcase
9. Demonstrate to public
10. Broadcast
11. Recording
12. Communicate to the public through mass media
2. Reproduce a creation materially. The actions can be done in various ways, for examples, copy paste, load the same image, re-record, or copy the creation (Edmon Makarim, 2005: 17). The action of creation materially reproduce a creation is can be seen and with the help of high technology it become easier to duplicate the copyright creation (Elyta Ras Ginting, 2012:210).
b. Indirect violation
Indirect violation in the field of copyright in general related to the creation and result the copyright infringement. Conventionally, indirect violation of copyright carried out by the way of trade or import of copyright infringing goods (Elyta Ras Ginting, 2012: 216). Forms of copyright infringement indirect or direct infringement in the Copyright Constitution provided for in Article 72 paragraph (2) "Broadcasting, exhibit, distribute, or sell to the public a creation resulted from the infringement of copyright or related rights."
3. Criminal Charge and Civil Copyright Infringement
Legal protection of copyright is one of the most important parts in providing legal to the creator for his/her creation. In act No.19 of 2002 on Copyright has been assigned civil and criminal penalties for any person who commits a violation of copyright.
a. Criminal Charge and Civil Copyright Infringement
Criminal violations are violations that are intentionally made to produce or publish copyrighted material. This offense qualified as a criminal offense to show, distribute or sell a violation of copyright material (Endang Purwaningsih, 2005: 6). Law No. 19 of 2002 on Copyright regulate in detail the criminal acts of copyright infringement by the threat of punishment, as listed in the table below:
No
|
Article
|
In Jail
|
fine
|
Type of Act
|
1
|
72 Article (1)
|
7 Years
|
Rp. 5.000.000.000
|
Act
intentionally and without right to announce, or reproduce a work; or create,
reproduce, or broadcast a recording of the sound and / or picture show; or
reproduces and / or rents phonographic works or sound recordings.
|
2
|
72 Article (2)
|
5 years
|
Rp. 500.000.000
|
The act of intentionally broadcast, exhibit,
distribute, or sell to the public a work or goods infringing copyright or
related rights
|
3
|
72 Article (3)
|
5 years
|
Rp. 500.000,000
|
Act
intentionally and without right to reproduce use for computer commercial
purposes
|
4
|
72 Article (4)
|
5 years
|
Rp. 1.000.000.000
|
The act of
intentionally doing an announcement every creation which is contrary to
government policy in the field of religion, defense, and state finances,
morals and public order.
|
5
|
72 article (5)
|
2 years
|
Rp. 150.000.000
|
The act of
intentionally multiply / announce portraits of people without the permission
of the person portrayed, or their heirs within 10 years after the person
portrayed died; and without permission or violate the prohibition
broadcasters for, produce, reproduce, and / or rebroadcasts broadcast
protected works through a wired or wireless transmission, or by other
electromagnetic systems
|
6
|
72 Article (6)
|
2 years
|
Rp. 150.000.000
|
Act intentionally and without
right not include the name of the creator in his creation; or change the
content creation, title creation, and the subhead creation.
|
7
|
72 Article (7)
|
2 years
|
Rp. 150.000.000
|
Act intentionally and without
right negate or add information about the electronic rights management
information creator
|
8
|
72 Article (8)
|
2 years
|
Rp. 150.000.000
|
Act intentionally and without
right of damaging, removing or making does not function as a safety control
means copyright technology.
|
9
|
72 Article (9)
|
5 years
|
Rp. 1.500.000.000
|
Act intentionally and without
right not to wear all licensing regulations and production requirements
specified by the competent authority in the use of high-tech production
facilities, particularly in the field of optical discs.
|
CHAPTER III
RESEARCH METHOD
A.
Data
Collection Technique
Data
collection technique is through library research, the research conducted by
examining the books, laws and regulations, and paper.
B.
Data Analysis
The author uses
qualitative descriptive method in analyzing the data with the intent to present
the results of research into issues raised in this paper is against the Law
Enforcement Crime of Piracy Software. From these results it was concluded that
the expected answer problems studied
CHAPTER IV
RESULTS AND DISCUSSION
A.
Law
Enforcement Efforts Against the Crime of Piracy
Software
is an object that is protected by Law No. 19 of 2002 on Copyright. It the main
function in operating a computer causes the need for software is increasing.
Users can do anything to get the latest software as needed. Constitution Act
No. 19 of 2002 on Copyright has set a type of sanctions that can be given to
the perpetrators of piracy or offenders who deliberately and without rights
commits acts violating the exclusive rights to the software. Here are forms of
software piracy for criminal sanctions stipulated in Law No. 19 of 2002
1.
Hardisk Loading
The
piracy happens when a consumer buy a genuine software and then install the
software to more than one computer to exceed the licenses. This action violates
the provisions of Article 72 paragraph (7) of Law No. 19 of 2002 on Copyright.
The act without right to changes the copyright. The element of error in this
mode is to deliberately install software more than the amount allowed by
altering or modifying the software licenses, while the elements against the law
in this deed that such actions violate the exclusive rights since transactions
are carried out without obtaining permission from the copyright holder. The
sanctions for such acts is imprisonment of up to two years and / or a maximum
fine of Rp 150,000,000
2.
Internet Piracy
Software
piracy is done via the Internet that connects the person. This is the most
frequent perpetrators due to the ease of access to the internet as well as
other facilities such as distributing pirated software is easier to do. This
action violates the provisions of Article 72 paragraph (2) of Law No. 19 of
2002 on Copyright, which acts intentionally and without right to broadcast,
exhibit, distribute, or sell to the public a work result of copyright
infringement. Sanctions for this action are the punishment shall be
imprisonment of 5 years and / or a maximum fine of Rp 500,000,000.00. (Five
Hundred Million)
3.
Counterfeiting
Type of this software
piracy is done by falsifying the software and resemble the original software
which is packaged exactly the same with the original software so that consumers
are deceived by packaging software that resembles the original one. This action
violates the provisions of Article 72 paragraph (2) of Law No. 19 of 2002 on
Copyright, which acts intentionally and without right to broadcast, exhibit,
distribute, or sell to the public a work result of copyright infringement. Sanctions
for this action are the punishment shall be imprisonment of 5 years and / or a
maximum fine of Rp 500,000,000.00. (Five Hundred Million)
B.
Constraints In Law Enforcement Efforts Against the Crime
Piracy
1.
Lack
of facilities, operating costs, and human resources.
Eradication and
repression of the crime to software piracy would require a powerful tool to
support the success of law enforcement agencies in carrying out the eradication
of software piracy. One of the example tools necessary to support the success
of law enforcement by the authorities is CCTV in the shopping center and public
roads that connect to the server owned by the authorities. They can do the
optimal surveillance on potential sites did practice criminal offense
infringement copyright by the traders.
2.
Lack
of support, awareness and Society Participation.
Society considered less
participates in the fight against the development of copyright infringement,
especially against the object of copyright piracy and impress indifferent to
the law enforcement carried out by the authorities. One of the indicators for lack
of public participation can be seen from the lack of public reports related to
the criminal acts of copyright infringement, especially piracy itself. Society
as consumer products have to protected by copyright should be actively involved
in law enforcement to combat the crime of piracy. Especially In terms of the
usage of software piracy, but the society has not had a good awareness for this
action.
CHAPTER V
CLOSING
A.
Conclusion
Law enforcement is doing by the police
in dealing with the crime of software piracy based authority Law No. 19 of 2002
on Copyright regarding the provisions of Article 71 investigation is to perform
the operation and inspection of the crime of copyright infringement. Operation
and inspection are doing in the illegal practice of pirated software sales in
Indonesia. Operations performed by the apparatus is still less than the maximum,
so that none of the perpetrators of the year 2009 to 2014 on trial, maximal
efforts of law enforcement by the police led to non-performance of the material
either criminal sanctions provisions set forth in Article 72 of Law No. 19 of
2002 on Copyright, which is expected to suppress the rise of the crime of
copyright infringement.
B. Suggestion
1. Law
enforcement against the criminal acts of piracy by the authorities should be
more intensive in order to practice the growing potential of software piracy
can be minimized or even eliminated. Regarding the issue of limitations by the
police, the police should improve the communication and establish a partnership
with software company that originated from developed countries to limitations
in terms to resolved the problem and also enhance cooperation in the form of
training to improve the skills of personnel in dealing with criminal action of
software piracy through online media such as the internet.
2. Society
needs to support government programs to reduce the use of pirated software by
using a program Open Source License. Indonesian
government programs Goes To Open Source
License are expected the users of pirated software can be reduce, the use
of illegal software. Switch on the Open
Source License program there is no prohibition to reproduce the program
Open Source License that due to the software source code is not protected by
the copyright even if it is a creation of a programmer, but there is a breadth
for the user to modify and expand the program Open Source License freely.
[1] New Law Journal - Volume 123, Part 1 - Page 358, 1974
[2] Kären M. Hess, Christine Hess Orthmann, Introduction to Law Enforcement and Criminal Justice (2008), p. 1.
[3] http://definitions.uslegal.com/l/law-enforcement-officer/
[4] Oxford English Dictionary Second Edition on CD-ROM. Oxford: Oxford University Press. 2009.
[2] Kären M. Hess, Christine Hess Orthmann, Introduction to Law Enforcement and Criminal Justice (2008), p. 1.
[3] http://definitions.uslegal.com/l/law-enforcement-officer/
[4] Oxford English Dictionary Second Edition on CD-ROM. Oxford: Oxford University Press. 2009.
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