Regarding Copyright Disputes, the Constitutional Court Emphasizes that Legal Sanctions are the Last Alternative

JAKARTA - The Constitutional Court (MK) emphasized that the application of criminal sanctions must be the last alternative in copyright disputes after administrative or civil sanction channels have been taken, but have not produced results.

The affirmation was stated in the Constitutional Court (MK) decision in Case Number 28/PUU-XXIII/2025 regarding the test of the substance of Article 113 paragraph (2) of Law Number 28 of 2014 concerning Copyright which was pronounced in Jakarta, Wednesday.

"In the context of copyright, criminal sanctions will only be applied after all other settlement mechanisms, such as administrative or civil sanctions, are deemed inadequate or do not provide a settlement," said Constitutional Judge Enny Nurbaningsih, quoted by Antara.

The Constitutional Court stated that violations of the economic rights of creators or copyright holders for using creations commercially without the permission of the creator or copyright holder should prioritize administrative sanctions and disciplinary mechanisms, rather than criminal ones.

This, explained Enny, is in line with the principle of minimum remedium in criminal law which places criminal sanctions as a last resort to solve a legal problem.

According to the Court, the application of criminal sanctions as a first attempt will be able to cause concern or fear for users of creations who are many as artists, musicians, and performers to perform in public.

This condition is also considered potentially influential on the art and culture ecosystem. In fact, regarding the formation of the Copyright Law, one of them, is intended so that copyright can become the most important basis of the national creative economy.

Enny said that the losses caused by copyright infringement are essentially economic losses that are multi-faceted, not only personal in nature that focuses on personal interests so that the settlement will be more appropriate if it does not directly use the criminal law mechanism.

"Therefore, the dispute settlement that is taken should be by first prioritizing administrative and/or judicial settlement before taking legal enforcement of criminal sanctions," he said.

The Supreme Court also emphasized that the main purpose of administrative and civil settlement is to resolve disputes, protect individual rights, and provide recovery and compensation to the aggrieved party.

The court also considered that the copyright applied in the Copyright Law contains flexibility that should be followed by a settlement that provides protection to all parties proportionately.

The protection of all parties referred to by the Constitutional Court is, for example, by settling compensation administratively or civilly through payment to the Collective Management Institution (LMK). In that way, the criminal mechanism should be the last option.

"This is a guideline and must be implemented by law enforcement officers in enforcing copyright law," said Enny.

He also emphasized that the enforcement of the criminal sanctions in question must be carried out with a restorative justice approach as part of the application of the principle of ultimum remedium.

Based on these considerations, the Constitutional Court granted the request of musician Tubagus Arman Maulana (Armand Maulana), Nazril Irham (Ariel NOAH), and 27 other musicians and singers in relation to the norms of Article 113 paragraph (2) of the Copyright Law.

The article reads, "Anyone who without the right and/or without the permission of the creator or copyright holder commits an infringement of the economic rights of the creator as referred to in Article 9 paragraph (1) letter c, letter d, letter f, and/or letter h for commercial use shall be sentenced to imprisonment for a maximum of 3 years and/or a fine of up to IDR 500,000,000.00."

The Constitutional Court also emphasized that the application of criminal sanctions, which should be the last alternative, not only applies to violations of economic rights in the creation of performances, as stipulated in Article 9 paragraph (1) letter f, but also to other violations.

Therefore, in the ruling, the Constitutional Court stated that the phrase "letter f" in the norm of Article 113 paragraph (2) of the Copyright Law was interpreted as "in the implementation of criminal sanctions, it is carried out by first applying the principle of restorative justice".