THE MASLAHAH THEORY

IN THE COPYRIGHT LAW

(Reviewing of The Law Number 28 Year 2014 on Copyright)

MINI THESIS

Submitted in Partial Fulfillment of the Requirements for the

Degree of Sarjana Hukum (S.H.)

By:

Abdul Gopur

NIM. 1111047000004

MADZHAB COMPARATIVE STUDY PROGRAM

SHARIA AND LAW FACULTY

UIN SYARIF HIDAYATULLAH

JAKARTA

1439 H / 2018 M

ii

iii

iv

DECLARATION SHEEET

I signed below :

Name : Abdul Gopur

NIM : 1111047000004

Prodi : Perbandingan Mazhab

Faculty : Syariah dan Hukum

Address : Kp. Suradita Rt 05 Rw 01 Desa Suradita Kec. Cisauk

Kabupaten Tangerang Banten.

Email : abdulgopur.opung@gmail.com

HP : 0899-9097-424

Hereby declares that :

1. This thesis is the result of my original work which submitted to fulfill one

of the requirements of obtaining Sarjana Hukum (S.H) at State Islamic

University (UIN) Syarif Hidayatullah Jakarta.

2. Regarding the sources that I have included in this thesis, it has been

adjusted according to the rules and regulations of the State Islamic

University (UIN) Syarif Hidayatullah Jakarta.

3. If in the future it proved that in this work is not the original work or

plagiarism from the other’s work, then I am willing to accept the

sanctions that apply at State Islamic University (UIN) Syarif Hidayatullah

Jakarta.

Jakarta: March 2018

Wassalam

Abdul Gopur

v

ABSTRACT

Abdul Gopur, NIM: 1111047000004, The Al Masahah Theory in the

Copyright Law (Reviewing of Law Number 28 of 2014 on Copyright),

Mazhab Comparative Study Program, Sharia and Law Faculty, State Islamic

University (UIN) Syarif Hidayatullah Jakarta, 1439 H / 2018 M, (X-75).

This thesis reviews the Al-Masahah Theory in the Copyright Law

(Reviewing of Law Number 28 Year 2014 on Copyright). Each law has

explicitly brought benefit to humanity, but it should be studied more deeply

about various aspects of the sociological juridical and legal history of a law in

order to better understanding the benefits of the law.

This study aims to deskrip the theory of al maslahah in copyright law, and

explain the copyright of the perspective of Islamic law and positive law in

order to find and known the articles and content of Copyright law containing

elements of the theory of al-Maslahah.

This study uses a conceptual approach. A conceptual approach is made

when research does not move from the existing legal rules. Research is done

by studying, interpreting things that are theoretical or concept concerning the

principles, doctrines and legal basis associated with maslahah theory in

copyright law. The object of this study is Law No. 28 of 2014 on Copyright.

this research also uses literature research, yaikni by researching library

reference sources that have relevance to this research.

The results from this research conclusion, that in the Law number 28 of

2014 on copyright has been applied the maslahah theory, with presented

articles that contain elements maslahah.

Keywords : Al Maslahah Theory, Copyright, Copyright in Islam

Advisor : 1. Dr. H. Supriyadi Ahmad, M.A

2. Hidayatullah, MH

Bibliography : Tahun 1979 – 2014.

vi

بسم هللا الرحمن الرحيم

PREFACE

All praises to the presence of Allah SWT. over the gift of His grace and

favor, so that we all remain in good health with Islam and the inherent faith.

Salawat along with salam is placed on the character and lord of Prophet

Muhammad SAW, family, friends and followers until the end of time.

Alhamdulillah phrase, upon the completion of a thesis entitled "The Al

Maslahah Theory in the Copyright Law (Reviewing of Law Number 28 of

2014 on Copyright)" as a requirement to obtain a Bachelor of Law in Mazhab

Comparative Study Progeram of Sharia and Law Faculty State Islamic

University (UIN) Syarif Hidayatullah Jakarta

As a human being, the writing of this thesis is far from perfect, but

hopefully the result of the research in this thesis is useful especially for writer

and for public in general. The writer also realized, for the help of the parties

so that this thesis can be resolved. Therefore, the writer would say many

thanks to :

1. Mr. Dr. Asep Saepudin Jahar, MA. Dean of Sharia and Law Faculty UIN

Syarif Hidayatullah Jakarta.

2. Mr. Fahmi Ahmadi , S.Ag., M.Si, Chairman Mazhab Comparative Study

Program, and Mrs. Hj. Siti Hanna, S.Ag., Lc., MA., Secretary of Mazhab

Comparative Study Program UIN Syarif Hidayatullah Jakarta.

vii

3. Mr. Dr. H. Supriyadi Ahmad, MA and Mr. Hidayatullah M.H. Thesis

Advisors who has giving many guidance and direction until this thesis is

done.

4. Mr. Nur Rohim Yunus, Lc Academic Advisor who has giving many

guidances in the lecture until this thesis is done.

5. Mr Dr. H. Supriyadi Ahmad, MA. and Ibu Dewi Sukarti, M.A Thesis

Proposal Examiner who has giving guidance and direction to the first step

of this thesis.

6. All the lecturers at Sharia and Law Faculty UIN Syarif Hidayatullah

Jakarata, who has given his knowledge in various scientific disciplines.

Whether inside or outside the lectures, may get a reply from Allah SWT.

and useful for writer.

7. Not forgetting and especially, the expression of gratitude for the parent,

Damyati and Yatimah who always giving encouragement and prayer

every time, Muhamad Khusnul Amri and Dinny Laras Safitri who always

provide motivation for the completion of this thesis.

8. To all friends in Comparative and Law study of 2011, all friends in Islamic

Student Association (HMI) Komisariat Sharia and Law Faculty and

Management of HMI Ciputat Branch Period 2016-2017,LKBHMI Ciputat

Branch (Institute for consultation and legal aid of Islamic Student), all

friends in Comparative of Law Community (CLC), KNPI, HIPMI

Tangerang District, and other communities that have shared their

knowledge and togetherness.

viii

9. To all ideology friends and relatives which the writer being proud of Moh

Basri SH., Alan Novandi SH, Nur Muhammad Maftuh SH, Ahmad Mujab

Zaini SH, Heru SH, Julian Pranata SH, Dika Dermawan SH, and all

friends who at all times together provide support, advice and input to the

writer.

10. To all parties who contribute to provide moral support or material that can

not be mentioned one by one by the writer. May the grace of God always

be with them.

The only thankful expressions and prayers can be given by the author,

with the hope that their charitable deeds are all accepted by Allah SWT and

receive the best reply to a reward for the good of the hereafter. Amin.

Jakarta: 02 March 2018 M

14 Jumadil Akhir 1439 H

Author

ix

TABLE OF CONTENTS

TITLE PAGE .............................................................................................. i

ADVISOR APPROVAL SHEET ............................................................... ii

ENDORSEMENT SHEET .......................................................................... iii

DECLARATION SHEET ........................................................................... iv

ABSTRACT .................................................................................................. v

PREFACE .................................................................................................... vi

TABLE OF CONTENTS ............................................................................. ix

CHAPTER I : INTRODUCTION .............................................................. 1

A. The Background of The Study ........................................ 1

B. The Identification of Research ........................................ 5

C. The Research Scope and Questions ................................. 6

D. The Research Objectives and Benefit ............................. 7

E. Literature Review ........................................................... 8

F. The Research Method ...................................................... 9

G. The Writing Systematic ................................................... 12

CHAPTER II: THEORITICAL REVIEW ABOUT MASLAHAH ........ 13

A. The Definition and Legal Principle ................................. 13

B. The Types of Maslahah ................................................... 16

C. The Terms of Proposition (Hujjah) …… ........................ 20

D. Maslahah Analysis Method …… .................................... 27

E. Maslahah Object .............................................................. 29

CHAPTER III: COPYRIGHT IN THE PERSPECTIVE OF ISLAMIC

LAW AND POSITIVE LAW IN INDONESIA ............... 32

A. Copyright According to Islamic View ............................ 29

a. The Definition of Copyright in Islam ....................... 32

b. The Protection of Copyright Law in Islam ............... 35

B. Copyright in Positive Law Perspective in Indonesia ....... 38

a. The Definition .......................................................... 38

b. The Basic Legal ........................................................ 41

x

c. The Scope of Copyright ........................................... 42

d. The effect of Copyright law ..................................... 45

CHAPTER IV : THE MASLAHAH THEORY IN THE

COPYRIGHT ACT ........................................................... 49

A. The Orientation of Maslahah Theory in the Law

Number 28 Year 2014 on Copyright Development. ...... 49

B. Maslahah theory Implementation in The Law of

Number 28 Year 2014 on Copyright. ............................. 50

CHAPTER V : CLOSING ........................................................................... 68

A. Conclusion ....................................................................... 68

B. Suggestion ....................................................................... 69

BIBLIOGRAPHY ........................................................................................ 71

1

CHAPTER I

INTRODUCTION

A. The Background of The Study

The development of Islamic law today since its arrival in Indonesia is

classified as a living and dynamic law in society.1 As is known Islamic law is a

rule derived by Allah SWT. for the benefit in running the wheel of life in order to

making a safe, peace, halcyon, and safe in the world and the afterlife.

As a law that grows and develops in the society, Islamic law has become

part of the life of a nation like Indonesia which the majority of its citizen is

Moslem. In addition, the development of Islamic law in Indonesia is also

supported by the government's attitude towards religious law (Islamic law) which

is used as the medium or tool to expedite the implementation of government

policy, for example in Family Planning program and the other programs.2

The position of Islamic law in the legal system in Indonesia if viewed from

the aspect of the basic formulation of the state conducted by BPUPKI (Indonesian

Independence Preparedness Efforts Investigation Agency), ie Islamic leaders

trying to restore and put Islamic law in the state of Indonesia's independence.3 The

legal system in Indonesia is growing rapidly, in this case the state is committed to

fostering the national law by placing Islamic law as the development and the main

material in the development of law in Indonesia in order to create a law that has

maslahah or benefits for the nation and country.

The concept of maslahah as the core of maqasid al-syariah is the best

alternative for the development of methods of ijtihad, where the Qur'an and

Sunnah must be understood through the methods of ijtihad by emphasizing the

1 Marzuki Wahid dan Rumadi, Fikih Madzhab Negara Kritik Atas Politik Hukum Islam di

Indonesia, (Yogyakarta: LkiS, 2001), page. 81 2 Mohammad Daud Ali, Hukum Islam dan Peradilan Agama (Kumpulan Tulisan), (Jakarta:

PT RajaGrafindo Persada, 2002), page. 219-220 3 Zainuddin Ali, Hukum Islam Pengantar Ilmu Hukum Islam di Indonesia, (Jakarta: Sinar

Grafika, 2013), page. 85

2

dimension of maslahah.4 Then, this is where we can understand that the theory or

concept maslahah is a vehicle for the change of law.

After Rasulullah Saw past away. many issues that arose explicitly did not

exist in the time of the prophet Saw. The Companions are faced with issues that

require them to be ijtihad by identifying the matter by looking at the text of the

Qur'an, if not found then the next step in searching in the hadiths of the Prophet

Saw. A deliberation will be taken if the issue is unfinished until that stage to

perform ijtihad with the method of determining Islamic law based on qiyas and

maslahah which is to identify the human act law that is not explicitly from

religious texts.5

The Islamic law is consistent with natural tendency, keeping into all aspect

of human life, and offering a justice life demands. The Islamic law is always

paying attention to the realization of the maslahat for all His servants. Therefore,

maslahat gives a big contribution to the realization of a decent guide for the

mujtahid to concern in order to know the law of Allah on the matter which is not

confirmed by the Quran.6

The purpose of the Islamic law or better known as maqasid al-syari'ah

al'ammah as the basis or guidance used by the mujtahid in establishing the law. As

for the purpose of Islamic law is the maintenance of religion, soul, mind, descent,

and property. Islamic Law (Shari'a) is entirely a maslahat, which the

representation may be the form of deletion of al-mafsadah and may also take the

form of a manifestation of expediency. Specifically, there is no law which

contains al-madarrah however in order to stay away from it, and there is no law

which contains maslahat however in order to make it happen.7 The maslahat is

actually maintaining and observing the objectives of Islamic law (Sharia) in the

form of goodness and usefulness desired by Islamic law (Sharia), not by human

4 Asafari Jaya Bakti, Konsep Maqashid Syari’ah menurut al-Syatibi, (Jakarta raja grafindo

persada, 1996) page.168. 5Muhammad Abu Zahrah, Tarikh al-Mazahib al-Islamiyah : Dar al Fikr al’Arabi, page.16.

6 Sa’îd Ramadân al-Bûti, Dawâbit al-Maslahah fi al-Syarî’ah al-Islâmiyyah, (Beirut:

Mu’assasat al-Risâlah wa al-Dâr al-Muttahidah, 1421 H/2000 M), page 69 7 ‘Izz al-Dîn ibn ‘Abd al-Salâm, Qawâ‘id al-Ahkâm fi Masâlih al-Anâm, (Kairo: Maktabat

al- Kulliyyât al-Azhariyyah, 1994), Juz ke-1, page. 11.

3

lust.8 Because maslahah is considered as a deliberation for human’s muamalah

and social activities in law to continue maintaining the five main things; religion,

soul, mind, ancestry, and property.9 Therefore, the concept of maslahah is not

only finite to the problem of worship but also the muamalah problem.

The law evolution in Indonesia in the development of national law evolved

rapidly because it is supported by the government's attitude towards Islamic law

used as a tool of implementing government policy. This is similar with the

mandate which included in the first principle of Pancasila and Article 29

paragraph (1) and paragraph (2) of the UUD 1945. Through this path, the

provisions of Islamic law which require the state power for its implementation get

constitutional warranty. The national legal system in the form of criminal or civil

is interesting to be studied and associated with the theory of al-Maslahah as the

reference framework of Islamic law legislation in Indonesia. In addition, in the

development of national law is always able to adjust to the development of the

situation, then open and accept the relevant external elements is a must, including

the absorption of copyright in Islam through the application of maslahah which in

this matter is applied in the Copyright Act number 28 years 2014.

The position of copyright in shari'a Islam, the recognition of individual

rights to an object, does not mean that the ownership of a person can be arbitrary.

Because economic activities in the Islamic view besides to fulfill the needs of

themselves and family life, is also still attached rights from the others.10

Dr. Fathi ad-Duraini, professor of fiqh at the University of Damascus Syria,

stated that ibtikar is: a picture of thought which produced by a scientist through

the ability of reflection and analysis and the result is the first invention or

creation, which has not been put forward by the previous scientists.

The copyright according to jumhur ulama fiqih belongs to the group or

equated with the property. Some scholars disagree with this opinion. Therefore, in

8 Jalâl al-Dîn ‘Abd al-Rahmân, al-Masâlih al-Mursalah wa Makânatuha fi al-Tasyrî‘,

(t.tp: Matba‘at al-Sa‘âdah, 1403 H/1983 M), page.12 dan 13 9 Abdullah Ahmed an-Naim, Dekonstruksi Syari’ah, alih bahasa Ahmad Suaedy dan

Amirudin arrani, (Yogyakarta, Pustaka pelajar,1994) page.51 10

Suhrawardi K. Lubis, Hukum Ekonomi Islam (Sinar Grafika,2004) page. 12

4

the most scholars of fiqh’s opinion, the custody and protection of the law against

copyright in Islamic law can be seen in the law protection framework and

property protection in general.

The protection of copyright resource or the property preservation is

necessary because the creation of the intellectual resource rights takes a lot of time

in addition of talent, employment, as well as money to finance this matter. If there

is no protection for intellectual creativity which apply in the arts, industry, and

knowledge, then everyone can imitate and copy freely and reproduce

indefinitely.11

Thus, it is clear that protection of intellectual resource rights is very

important.

The recognition and protection of copyright in Indonesia has been done long

time ago as a former Dutch colony, then the legal history of intellectual resource

protection in Indonesia can not be separated from the Netherlands. The first

copyright law applied in Indonesia is the Copyright Act of 23 September 1912

originating from the Netherlands amended by Law Number 6 of 1982 which was

refined in 1987. In 1997 it amended again with the Law Number 12 of 1997. Then

it changed in 2002 with the enactment of Law Number 19 of 2002. During this

time the development of copyright is so complex, which means a lot of things that

have not been arranged in this law, until in 2014 the enactment of the Act Law

Number 28 of 2014 on copyright because Law Number 19 of 2002 is not suitable

with the law development and the community needs.12

The inception of the Law Number 28 of 2014 on copyright as a replacement

of the previous law which is deemed to be updated. The government policy in

establishing the law is based on the welfare and the evolution of the times because

the issue of copyright or related to the work or creation of a person must be suit

with current development. This is the government manifestation in nurturing the

national law.

11

Sudargo Gautama, Segi-Segi Hukum Hak Milik Intelektual, Jakarta: PT Aresco, 1990,

page. 7 12

Naskah akademik Rancangan Undang-undang tentang hak cipta,Direktorat jendral Hak

Kekayaan Intelektual Tahun 2013.

5

Each formation of the legislation is basically based on the benefit principle,

as well as the latest copyright law, Law Number 28 of 2014 is also based on the

benefit principle. Moreover, we as the academic people in the university can not

be separated from someone's work, creations, or copyrights, whether a professor,

doctor, and other academic experts. The provision of Law Number 28 of 2014 on

copyright contains the points that are considered as the new provision based on

the benefits.

The complexity of copyright development and the Law which constantly

being updated from time to time provide the author's foundation material to

specifically making an observation about the new copyright law based on

maslahat. Through this background the authors are interested to discuss

specifically about how the maslahah theory application which can be found in the

Law Number 28 of 2014 on copyright. Therefore, the author compiled this thesis

with the title of The Maslahah Theory in The Copyright Law (Reviewing of

Law Number 28 Year 2014 on Copyright).

B. The Identification of Research

The identification of this study is a problem that found by researcher. Based

on the background explanation, the researcher in this connection identifies as an

overall problem that related to the problem of this research which the researcher

presents in the form of some questions as follows :

1. Is the maslahah theory highly relevant to establish the law?

2. How the validity of the maslahah theory in the Islamic law?

3. How the maslahah theory according to imam mazhab in establishing the

law?

4. What is the difference of the imam mazhab viewpoint about the maslahah

theory in establishing the law?

5. What is the purpose of the changing in the copyright law?

6. Does the copyright law have maslahah?

7. How the maslahah theory reviews in terms of the copyright law?

8. Does the copyright law have any benefits for the Indonesian people?

6

C. The Research Scope and Questions

a. The Research Scope

Due to the limitations of time, effort, and cost in order that the research can

be finished deeper, then not all the problems that have been identified will be

examined. Hence, the researcher limited this research to normative issues, in

accordance with the title of the research subject The Theory Maslahah in The

Copyright Act (Review of Law Number 28 of 2014). While the object of the

research is the Law Number 28 of 2014 on Copyright. Then the researcher limit

the research on 4 problems, there are:

1. This research proposes the theory or the concept of maslahah in

establishing the law and its position in the Islamic law.

2. This assessment is limited to the review of the Law Number 28 of 2014

on copyright and the scope of copyright in the Islamic perspective.

3. The Maslahah restricted on the law determination based on the benefit

and people’s interest.

4. The Copyright Act is limited to the scope of the copyright, economic

rights and moral rights.

b. Research Questions

Research Questions in this thesis is Law Number 28 year 2014 on

Copyright has been applying the theory maslahah ?. So the questions research of

the study to be appointed in this thesis, as follows :

1. How does the orientation of the maslahah theory in the establishment of

Law Number 28 Year 2014 on copyright?

2. How does the implementation of the maslahah theory in Article of

Copyright Law Number 28 Year 2014 on copyright?

7

D. The Research Objectives and Benefit

1. Research Objectives

a. Identifying the maslahah theory and its position in the law

establishment.

b. Describing the maslahah theory in the Copyright Law.

c. Explaining the implementation of the maslahah theory in the Article

of the Law Number 28 Year 2014 on copyright.

2. Research Benefits

a. Theoritical Benefits

Theoretically, the results in this research on this thesis are expected

to enrich the scientific reference in the field of Islamic law and the

development of national law in general and in the field of the

regulation of legislation in particular, and also is expected to give

contribute consideration in the field of Islamic law and

conventional.

b. The Practical Benefits

The practical benefits of this study as follows:

1) General Public

The results of this study can be used as a reference framework

of thought and scientific resource in the process of Islamic law

implementation in national law.

2) Legal Practitioner

This research can be used as a guide in the development of legal

studies related to the preparation of legislation for the legal

practitioners, especially who concentrate on legal drafting. The

researcher wishes that the results of this study can be a

theoretical consideration of material review of legislation or

formal in the legislation testing.

8

3) Further Research

The writing benefit of this thesis for the researchers is to provide

further knowledge and explanation for the academic people that

the challenges in the future increasingly more diverse, rapid

development so every law which has maslahat or public interest

that must be described so that the results will be useful for

among students, college students, and other academic and

related elements to conduct further research.

E. Literature Review

The literature review becomes important in a scientific journal to distinguish

the author’s work with the previous research. As long as the author's knowledge

of the same topic of research with the author either in the main library catalogue

or sharia library and law has not been studied by other researchers. However,

there are several research of Dissertation ,Mini thesis and journals which come up

to the author’s study, there are:

1. The Application of Maslahah Mursalah in KHI and Its Influence on

The Judge's Decision "Case Study of Decision of Divorce Claim for

Polygamy Husband at South Jakarta Religious Court 2007”

This thesis was written by Taufikurrohman (2009), a student of

Religious Courts concentration, Akhwal Syakhsiyah Study Program, Sharia

Faculty and Law, UIN Syarif Hidayatullah Jakarta. In this paper, describing

more about the application of maslahah mursalah in Compilation of Islamic

Law and its influence on the judge's decision. The object studied is the

Compilation of Islamic Law and the judge's verdict.

2. The Copyright Infringement (Comparative Study of Law Number

19 of 2002 on Copyright in Islamic Law)

This thesis was written by Amin Wazan (2009), student of Mazhab and

Law comparison concentration, Faculty of Sharia and Law, UIN Sunan

Kalijaga Yogyakarta. This thesis discusses about comparative study

between copyright law with Islamic law.

9

3. Journal Al 'Adalah Entitled Validitas Maslahah Mursalah As

Source of Law

This journal was written by Muhammad Rusfi (2014), Faculty of Sharia

Raden Intan Lampung. In the journal Al ‘Adalah Vol XII Number 1 of June

2014 described the urgency of maslahah as a way out of the deadlock in

establishing Islamic law. This journal more focuses on the effectiveness of

istinbat method through maslahah mursalah.

4. Ahkam Journal Entitled Theory of Al-Masahah and Its Application

in Criminalization Norm of Anti-Corruption Law

This journal was written by Dr. Asmawi (2013), Faculty of Sharia and

Law, UIN Syarif Hidayatullah Jakarta. In the journal ahkam Vol XIII

Number 2 July 2013 explained the relevance of the maslahah theory with

the law of corruption.

5. The theory Maslahah and relevance with legislation Extraordinary

Crime in Indonesia

Dissertation was written by Dr.Asmawi ( 2009 ), graduate school, uin

syarif hidayatullah jakarta.In dissertation written in 2009 explain the

presence of relevance concerning the theory maslahah with the law the

Extraordinary crimes in indonesia

The several titles of the above scientific journal are completely different

from the author’s description and none of them has explored the theme in this

thesis. Although theoretically there are similarities in discussing maslahah

mursalah, but the different of research objective which is the Law Number 28 of

2014 on Copyright.

F. Research Method

In the preparation of this thesis, the researcher use normative legal research

method or literature legal research. This means that the legal research conducted

by examining the library materials or secondary data only. 13

Secondary data in

13

Sri Mamudji,Soerjono Soekanto Penelitian Hukum Normatif Suatu Tinjauan singkat.

Jakarta : Raja Grafindo Persada, 1994, page.13

10

the legal research includes: Primary law materials, secondary law materials and

tertiary legal materials.14

In order to get more clearly for this research, in this section the researcher

describe as follows :

1. Research Approach

This study used a conceptual approach. A conceptual approach is made

when the research did not move from the existing legal rules. It is done because it

is not yet or there is no rule of law for the problems encountered.15

In this research

the maslahah theory in the copyright law, should be examined the maslahah

theory or the concept in the act. Maslahah theory is a legal concept, therefore the

writer needs to examine the views and doctrines related to the research.

In this conceptual approach, the research is done by reviewing, interpreting

matters which are theoretical or concept concerning the principles, doctrines and

legal basis associated with the maslahah theory in the act of copyright

2. Types of Research

The type of this research is normative legal research using literature

legal research (library research), then analyzed the theory and object which

investigated. So the results of this study may provide an objective illustration of

the true state of the object under study.

3. Research Objectives

The research objective of this thesis is the Law Number 28 of 2014

about Copyright.

4. Research Data Resource

In the study of normative law, library material is the basic data in the research

which classified as secondary data. The secondary data has a wide scope,

14

Sri Mamudji,Soerjono Soekanto Ibid page.12-13 15

Peter Mahmud Marzuki, Penelitian Hukum, (Jakarta: Kencana Prenadamedia Group,

2014), page. 177

11

including personal letters, diaries, books, and official documents issued by the

government (Soerjono Soekanto & Sri Mamudji 1979: 3). Any supportive

materials for the research process as the methods applied in this study are the

primary resources/materials and secondary resources/materials.

a. Primary Resource

Primary resources are data sources obtained from various literature study

materials related to this research which contains new and up-to-date scientific

knowledge. The primary data source materials used in this study include books,

dissertations, theses, classical fiqh books, contemporary jurisprudence, laws, and

other legislation related to this research.

b. Secondary Resource

Secondary resource is a data source containing information about primary

materials. The secondary data sources used are books, journals, expert opinions,

government publications or literatures related to this research.

5. Data Compilation Technique

Data collection techniques is a method used by the researcher to collect

information in the form of scientific materials and literature study. The collected

data is through reading documents (document studies). Document study is

conducted by collecting data from various literatures by reviewing and

understanding the object of research and review any books or literatures related to

this research.

6. Data Analyze Technique

After the series of research is passed, and the data has been collected

completely, the next stage is to process and analyze the data. This stage is

expected to answer each of the appointed issues underlying in this research.

Qualitative analysis is how to describe and disseminate theoretical analysis of the

theories that discussed in this study.

12

Data analysis is the process to collect or transform the data to highlight and obtain

useful information, providing suggestions, giving conclusions, and support

decision-making. From the data that collected, the researcher will be analyzed

qualitatively. It means that the examination of data obtained from research on the

maslahah theory in copyright law is tested with the legislation, theories, expert

opinions and mazhab’s opinions related to this research, so that it can be drawn

enough conclusion in order to answer the problems that appear in this research.

7. Writing Technique

The writing technique which the author used this thesis the book of

Thesis Writing Writing Faculty of Sharia and Law of 2017.

G. The Writing Systematic

In terms of describing this research into the form of writing, the author

arrange it systematically in order to facilitate in analyzing the problem. The

systematics of this writing is as follows.

CHAPTER I contains the introduction, This chapter will explain the

background of the study, problem identification, the study limitations and research

question, the research objectives and benefits, review of the previous studies,

research methods and Overview of the Thesis.

CHAPTER II contains a theoretical review of maslahah which includes the

understanding of maslahah and the legal basis, the various maslahah, the

condition referved to maslahah, method of maslahah analysis, and maslahah

object.

CHAPTER III contains the perspective of Islamic law about copyright and

the perspective of positive law about copyright in Indonesia.

CHAPTER IV contains the analysis of the maslahah theory on the

Copyright Act Number 28 of 2014.

CHAPTER V contains the result which including the conclusions,

suggestions, and covers.

BIBLIOGRAPHY

13

CHAPTER II

THEORITICAL REVIEW ABOUT MASLAHAH

A. The Definition and Legal Principle of Maslahah

Etymologically, the word maslahah comes from the word shaluha-

yashluhu-shalih which means good. This word is the antonym of the word 'fasada'

which means damaged. Thus, the word maslahah is the opposite of the word

masfadah (damage).1

The word maslahah is a single form (mufrad) of the word maslih. The

author of the dictionary "Lisan al-Arab" explained the meaning of maslahah from

two directions, ie maslahah which means 'al-mashalih' which both of them have

meaning the benefit existence originally and through the process as well, such as

producing the amenities and benefits, or the prevention and custody.2 In addition,

the word maslahah has similar meaning with the word benefit, specifically the

form of masdar which means good and contain benefits.

In the Indonesian dictionary mentioned that maslahah has meaning

"something that brings goodness, benefit and purpose" while the benefit means

usefulness, goodness, benefit of interest. 3

In a general meaning, everything

that is beneficial to human, both in the sense of attracting or producing such as

generating profit and tranquility, or in the sense of refusing or avoiding such as

refusing the disadvantage or damage. So everything which contains benefits

should be called maslahah.

The meaning of this language is to be understood that maslahah includes

all the things that bring the benefits, either undergoing to take and perform and

1 Ahmad Bin Faris Bin Zakariyya, Mu’jam Maqayis al-Lugah, Juz III (Bairut; Dar al-Fikr,

1979), page 303 2 Rachmat Syafe‟i, Ilmu Ushul Fiqih, (Bandung: CV. Pustaka Setia, 1998), page. 117

3 Departemen Pendidikan dan Kebudayaan, Kamus Besar Bahasa Indonesia, (Jakarta: Balai

Pustaka, 1996), page. 634

14

action or by rejecting and avoiding all forms that cause disadvantage and

difficulty.4

Then the terminologically definition of maslahah, there are some

definitions maslahah proposed by ushul fiqh scholars, but the whole definition

contains the same essence. Imam al-Ghazali for the example, argued that in the

maslahah principle is "taking benefit and rejecting the disadvantage in order to

maintaining the goals of syara‟.5

The purpose of the syara‟ that must be divided into five forms, namely:

religion, soul, intellect, descent, and wealth. If someone was doing something

that is essentially to maintaining the noble purpose of the syara‟ is called

maslahah, and efforts to reject all forms of the disadvantage which associated

with the purpose of syara' aspect is also called maslahah.6

In this connection, Imam al-syathibi said that the benefit is not

distinguished between the benefit of the world and the benefit of the hereafter,

because these two benefits are aimed at maintaining the five aims of syara‟

including into the concept of maslahah. Thus, according to al-Syathibi, the

world's benefit achieved by a servant of God should aim for the benefit of the

Hereafter.7

As mentioned earlier that al-Ghazali proposed the theory of maqasid al-

syari'ah by limiting the maintenance of sharia on kulliat al-khamsah. The

concept of maintenance can be implemented in two methods: first, constructive

methods (constructive) and second, preventive methods (preventive). In a

constructive method, religious duties and good circumlocutory activities can be

exemplified in this method. While the various restrictions on all deeds can

4 Said, Ramadhan al-Buthi, Dhawabit al-Maslahah fi al-Syari’ah, (Beirut: Muassah al-

Risalah,1977), 3rd

print, page. 2. 5 Ma‟ruf Amin, Fatwa dalam Sistem Hukum Islam, (Jakarta: Paramuda Advertising, 2008),

page. 152 6 Ma‟ruf Amin, Fatwa dalam Sistem Hukum Islam., page. 153.

7 Abu Ishak Ibrahim ibn Musa ibn Muhammad al-Syatibi, Al-Muwafaqat fi Ushul al-

Syariah, (t,t:Dar ibn Affan, 1997) cet, ke-1 jilid 2,h. 17-18. Lihat juga Ma’ruf Amin, fatwa dalam

sistem hukum Islam, (Jakarta:Paramuda Advertising, 2008), page.153.

15

serve as a preventive example of both methods aims to strengthen the element

maqasid al-syari'ah as a way to the goodness.

From several definitions of maslahah with different formulas it can be

concluded that maslahah it is something that is considered good by common

sense because it brings good and avoids damage to human, in line with the aim

of syara 'in establishing the law.8

While in terminology there are several formulations of the different

definitions of maslahah mursalah, but each has similarities and close to the

understanding. Among these definitions are:

1. Al-Ghazali formulated maslahah mursalah as follows: "Any (maslahah)

which there is no evidence for him from syara 'in the form of certain nash

cancel and no one noticed.” 9

2. Abdul Wahab Khalaf gave the following formula: " Maslahah mursalah is a

maslahat that no proposition syara' come to admit it or reject it.”10

3. Muhammad Abu Zahra gave the definition: "Maslahah are in harmony with

the goals of Islamic law and there is no specific guidance that to prove his

confession or denial.”

Some formulation of the above definitions can be drawn into conclusions

about the nature of maslahah mursalah, as follows:

a. It is a good thing according to the sense with the consideration of being

good or avoiding the badness for humanity

b. What is good according to the sense, also in harmony and in line with the

aim of syara‟ in establishing the law

c. What is good according to the sense and also in harmony with the purpose

of syara' there is no specific syara' guidance which recognize it.11

8 Amir Syarifuddin, Ushul Fiqh Jilid 2, (Jakarta:Kencana Prenada Media Group, 2008), cet.

ke-4, page.325. 9 Al-Ghazali, al-mutashfa, (Beirut:Dar- al-Fikr,tt), page.286.

10 Abdul Wahab Khalaf, Ilmu Ushul Fiqh, (Bandung:Gema Risalah Press, 1996), 7

th print,

page.142. 11

Amir Syarifuddin, Ushul Fiqh Jilid 2, page.334

16

B. Types of Maslahah

The subsequent development of the usage maslahah mursalah term has

occured differences among the Ushul Fiqh scholars. Some of them have

mentioned: al-munasib al-mursal, al-istidlal al-mursal, al-Qiyas al-Maslahi,

while Imam al-Ghazali called it by the name "al-istislah".12

While the ushul

fiqh experts divide maslahah into some parts, they are :

1. In terms of existency / the maslahah existence according syara' divided into

three kinds, namely:13

a. Maslahah Mu‟tabarah

Maslahah Mu’tabarah is the benefit which there is a nash explicitly

explained and admitted its existence, in the other words the benefits that

recognized by syar'i expressly with specific law either directly or

indirectly which provide the guidance on the maslahah existence which

is the reason in establishing the law. For example, to maintain the living

of human beings, it is assigning the law of qisas against the homicide

subject deliberately. In order to nurture the honor of the human, it is

prescribed the law of whipping for the accuser and the adulterer. To keep

the property, it is prescribed the law of hand-cutting for the thieves, both

male and female.

b. Maslahah Mulgah

Maslahah Mulgah is the benefit that is contrary to the condition of

the nash. In the other words, the benefit that is rejected because of the

law which showed that it contradicts with the provisions of the clear

law.

An example of a maslahah mulgah is to equalize the partition

between a girl with a sons in the matter of inheritance, the

equalization of the share of "allocation" of inheritance between

12

Rachmat Syafe‟I, Ilmu Ushul Fiqih, page.118. 13

Abu Ishaq al-Syatibi, Al-Muwafaqat Fi Ushul al-Syari’ah, (Beirut :Daar al-

Ma‟rifah,1973) chapter II, page 8-12

.

17

women and men's portion glancely it looked to be a benefit, but in

contrast to the provisions of clear nash and detailed, as the

commandment of Allah in the Quran Surah an-Nisaa / 4: 1114

Mean : ” Allah has appointed for you (the sharing of the inheritance)

for your children, which is for a boy equal to the two

daughters portion.”(Q.S.an-Nisaa/4:11)

c. Maslahah Mursalah

Maslahah Mursalah, which is also commonly called istishlah,

namely maslahah that explicitly there is no single proposition either

acknowledged or rejected it. In more teags maslahah mursalah this

including the type of benefit silenced by the nash. Recognized in the

reality this kind of benefit continues to grow and develop along with

the development of Islamic societies that are affected by differences in

conditions and places.15

And istishlah or maslahah mursalah this will be the subject of this thesis.

2. Maslahah in terms of the essence and quality

In terms of essence and quality, maslahah consists of three kinds,

namely maslahah daruriyyah, maslahah hajiyyah, and maslahah

tahsiniyyah.16

a. Maslahah daruriyyah is the benefit that associated with the basic needs

of mankind in the world and the hereafter, namely the benefit that its

existence is needed by human needs, which means human life is

nothing if one of the five principles that do not exist. Any effort that

directly guarantees or leads to the existence of the five principles

14

Amir Syarifuddin, Ushul Fiqh Jilid 2, page.331-332. 15

Romli, Muqaranah Mazahib fil Ushul, page.164. 16

Amir Syarifuddin, Ushul Fiqh Jilid 2, page.327-328.

18

(religion, soul, mind, descendant and possessions) is good or maslahah

in the level of daruri.17

Any attempt or action which directly leads to or causing the

disappearance or destruction of one of the five subjects is bad, therefore

God prohibits it. Leaving and departing from God's prohibition is good or

maslahah in the level of daruri.

b. Maslahah Hajiyyah

Maslahah hajiyyah is the benefit that the level of human life for

him/her is not at the level of daruri. The form of the benefit is not

directly for the fulfillment of the five basic needs (daruri), but indirectly

towards to that direction, as in the case which the convenience of the

human needs fulfillment. So that can be interpreted that the benefit

needed to improving the basic benefit (basic) previously in the form of

relief to defend and maintain basic human needs.18

As in the field of worship, people who are sick or in a long journey

subject is “people” in the month of Ramadan, are given rukhsah by the

shari'a not to having fasting with the responsibility to replace the passed

fasting days on the other days after they recovered or after returning from

their journey.

Allah has the commandment in Quran surah Al-baqarah/2:184:

Mean : "...And each one of you who is ill or on a journey (traveler) let

him fasting on the other days...”

17

Amir Syarifuddin, Ushul Fiqh Jilid 2, page.327. 18

Nasrun Haroen, Ushul Fiqh, page.116.

19

Similarly in the field of muamalah allowed to hunt animals and eat

good food, allowed to buy and sell orders (bay 'al-salam), cooperation in

agriculture (muzara'ah) and plantations (musaqah). All of it is

recommended by Allah to support the basic needs of al-Maslahah al-

Khamsah above.

c. Maslahah Tahsiniyah

Maslahah tahsiniyah is the maslahah that the necessity of human life

for his/her is not reach to the level of daruri, also not reach to the level of

hajiy, but the need itself has to be fulfilled in order to give the perfection

and beauty for human life. Maslahah in the form tahsini, also related to

the five basic human needs.19

The three forms of maslahah, in order to describe the rank of its

strength, the strongest is maslahah daruriyah, then maslahah hajiyah and

the next maslahah tahsiniyah. Daruriyah also have five different degrees

of strength, sequentially they are: religion, soul, intellect, descent, and

wealth. This difference in power level is seen when there is a conflict of

interests between each other, in this case must take precedence daruri on

hajiy and prioritize hajiy on tahsini.20

3. Maslahah in terms of its content

In terms of maslahah content, the ushul fiqh scholars have shared

maslahah to:

a. Maslahah al-Ammah

Maslahah al-Ammah, is the common goodness that concerns on the

interests of the people. Public welfare does not mean for the benefit of all

people, but may be in the interest of the majority of the people or most of

the people.

For example, the scholars allows the murderer of the heretical

spreaders who can destroy the 'aqidah ummah, because it concerns on the

interests of the people.

19

Amir Syarifuddin, Ushul Fiqh Jilid 2, page.328. 20

Amir Syarifuddin, Ushul Fiqh Jilid 2, page.328-329.

20

b. Maslahah al-Khasah

Maslahah al-Khasah, is the personal benefit and this is very rare, such

as the benefit which associated with the termination of a marital

relationship to someone that declared is missing (mafqud). 21

The importance of the portion of these two benefits related to which

priority should take precedence if the general benefit againstthe

personal benefit. In this second opposition, Islam prioritizes the general

benefit rather that personal benefit.

4. Maslahah in terms of changing or not

In terms of changing or not of the maslahah, there are two kind of forms,

namely: 22

a. al-Maslahah al-Tsabitah, is the fixed benefit that remains unchanged

until the end of time. For example, the obligations of worship, such as

prayer, fasting, zakat and hajj.

b. al-Maslahah al-mutaghayyirah, is the welfare that changes with the

changing place, time, and subject of law. This benefit is associated

with mua'malah problems and habitual tradition, as in the issue of

different foods between one to another area. The necessity of this part

is to provide the limits of which benefits either can be changed or not.

C. The Terms of Proposition (Hujjah) with Maslahah

As for maslahah on the principle jumhur ulama accepted it as one of the

reasons in establishing syara' law, even in the application and placement of the

terms they have different opinion.23

The scholars were using and applying

maslahah as hujjah taking it very careful and provide the conditions that are so

tight, because it worried that this matter will be a door for the formation of sharia

21

Nasrun Haroen, Ushul Fiqh , page.116-117 22

Ma‟ruf Amin, Fatwa Dalam Sistem Hukum Islam, h156, see also:Nasrun Haroen, Ushul

Fiq, page.117. 23

Nasrun Haroen, Ushul Fiqh 1, (Ciputat: Logos Publishing House, 1996), cet I, page.120,

lihat juga Ma‟ruf Amin, fatwa dalam sistem hukum islam, page.160

21

law under the passion and desire of individual, if there are no limitations in using

it. The terms are as follows:

1. It is the form of true maslahah, which is not a maslahah that still as

presumption. The meaning of this matter is that to make a realization a legal

establishment of an event and can bring the benefits, taking benefits or

denying the madarat. They are assumption that the formation of the law

bring the unwarranted advantages between the maslahah which can be

brouhgt by the formation of the law itself, then this means it is based on the

presumption maslahah. The example for this maslahah is maslahah which

heard in seizing the husband's right to divorce his wife, and make the right to

drop the divorce for the judge only in all circumstances.

2. It is the form of maslahah in general, which is not a personal maslahah. The

meaning of this matter is that to make a realization of a legal establishment

of an event which can bring benefits to mankind or it can be rejected the

madarat from them, and not only just give benefit to someone or some

people only. If so then it can not be prescribed as a law.

3. The formation of the law for this maslahah is not the contrary to the law or

the principle which has been established by the nash or ijma' in the meaning

of which the maslahah itself is the true maslahah and always being in line

with the purpose of syara' and is not crashing with the previous syara'

propotion.

4. Being applied in the require conditions, which if the problem is not resolved

with this way, then the people will be in the narrowness of life, with the

meaning the prevention must be taken to avoid the people from any

difficulties.24

The Hanafiyah scholars said that to make maslahah as the argument

required maslahah itself will affect to the law. It means, there is an act, a hadith

or ijma' which indicates that the trait which is regarded as a benefit is 'illat (legal

24

Abdul Wahhab Khalaf, Ilmu Ushul Fiqih. 145-146, Lihat Amir Syarifuddin, Ushul Fiqih,

page.337, See also: Mukri Aji, Jurnal Ahkam, page.41-42, and see: Romli, Muqaranah mazahib,

page.165-166.

22

motivation) in the establishment of a law, or the type of trait that becomes the

law motivation which is used by nash as the motivation of a law. For example,

the type of trait which become motivation in law is, in a hadith explained ("The

Prophet prohibited the merchant to detain the farmers at the border of the city in

order to buy their goods, before the farmers enter the market"). This prohibition

is aimed to avoid “the harmness for the farmers” with the occurrence of the

price fraud by the merchants who buy the farmer‟s goods in the city border, and

denying the harmness is the concept of al-maslahah.25

Thus the Hanafi scholars accepted the maslahah as the argument to

establishing the law, with the condition that the benefit trait is contained in the

nash and ijma'. And the application of the maslahah concept among the

Hanafiyah is widely seen in the istihsan method.26

The Malikiyah and Hanabillah scholars accepted the maslahah as the

proposition in the law establishing process, even they are considered as fiqh

scholars that the most and the most widely on applying it. According to them,

maslahah is the induction of logic a set of nash, not from the detailed nash as

applicable in qiyas. The usage of maslahah mursalah as a postulate based on

the following reasons.27

1. It is that the shari'ah of Islam is revealed to actualize the benefit for human

beings. Similarly, the ability of a person who is in an urgent condition or

forced to consume something that is forbidden within certain limits as an

effort to embody the benefit, as described in the surah al-Maidah, 5: 4 as

following:

25

Abdul Wahhab Khalaf, Ilmu Ushul Fiqih., page. 121. 26

Abdul Wahhab Khalaf, Ilmu Ushul Fiqih., page.120-121. 27

Abdul Wahhab Khalaf, Ilmu Ushul Fiqih, page. 141-142.

23

28

Mean : So whoever is forced because of hunger unintentionally committed

sin, trusly Allah is the Most Forgiving and Merciful.” (Q.S. al-Maidah : 4)

2. It is that the human benefit which associated with the terrestrial issue is

always changing according to the situation and conditions encountered. If

the benefit is unnoticed and appeared, certainly the human will have

difficulty in their life. Therefore, Islam needs to pay attention to various

benefits by sticking to the principles of Islamic law.

3. It is that syar'i explained the reason („illat) of the various laws established

with various attributes attached to the actions that are subject to the law. If

it is acceptable, then the provisions like this will also apply to the law that

set by the maslahah. For example, the God commandment on surah al-

Maidah, 5:91:

29

Mean : Truthfully the satan intends to provoke feud and hatred among you

because (drink) khamar and gamble it, and prevent you from

remembering God and praying; So stop you (from doing that thing)...”

( Q.S. al-Maidah : 91 )

28

Abdul Wahhab Khalaf, Ilmu Ushul Fiqih., page. 43. 29

Departemen Agama RI, Al-Quran dan terjemahnya, Yayasan penyelenggara

penterjemah/pentafsir Al-Qur‟an, (Bandung, Lubuk Agung, 1989, ) page. 177.

24

Furthermore, Imam Malik, in using the maslahah as one of the methods

of law enforcement, he did not just use it easily, but he used such strict

conditions, the conditions include are :

1. The compability existence between the benefit which is considered with

maqasid al-syariah, where the benefit is not conflicted to the basic and

syara' propostion although there are only one.

2. The benefit is associated with the matters that ma'qulat (rational), which

according to syara' is based on to the maintenance of the benefit, so there is

no place for the benefit in maslahah ta’abbudiyah and syara' cases which is

similar.

3. The result of maslahah is returned to the maintaining the daruri (primary)

matter according to syara' and excluding the narrowness in the religion.30

So as with the Shafi'iyyah group in essence, also makes maslahah as one

of the syara 'theorem, but Imam al-Shafi'I put it into qiyas, but one of the

followers of this school of Imam al-Ghazali, even extensively in the book -the

ushul fiqh books discuss the problem of maslahah, although he mentioned with

the term al-istislah. Thus, jumhur ulama actually accept maslahah as one

method in mengistinbathkan Islamic law.31

Imam Ghazali, in using the use of maslahah as one of the methods of law-

enforcement, he does not simply use it easily, but he uses such strict

conditions. These terms are among others:

1. Maslahah it must be one of the five basic needs. If only the second or

complementary needs then can not be used as a foundation.

2. Maslahah it must be universal, it is the welfare of Moslems as a whole, not

just some people or just relevant in certain circumstances.

3. Maslahah must be tend to be qath'i (definite) or close to it.32

30

Wahidul Kahar,” Efektifitas Maslahah Mursalah Dalam Penetapan Hukum Syara”’,

(Thesis. Pascasarjana UIN Syarif Hidayatullah ,Jakarta: 2003_, page.35-36. 31

Nasrun Haroen, Ushul Fiqh 1., page.123. 32

Yusuf Qardhawi. Keluwesan dan Keluasan Syari’at Islam: Dalam Menghadapi

Perubahan Zaman (Jakarta: Pustaka Firdaus, 1996), 1st print, page.24.

25

While Imam Syatibi did not require the things as what Imam Ghazali did,

but he suggested three things that must be considered in deciding the law based

on maslahah, namely:

1. It must be reasonable, so that when conveyed to the sense, then sense can

accept it. But it should not involve the things of worship.

2. As an entirety, it must be in accordance with the purposes of the shari'a,

which does not remove any basic from the religion bases, and one postulate

from the qath'i postulates. But it must be in suit with the benefits which is

the purpose of the shari'a, although there are not found specific proposition

that can explain it.

3. Maslahah must always refer to take care of things that are vital or eliminate

the difficulties and things that burdensome in religion.

If we consider the maslahah conditions above, it is seen that scholars who

use and apply the maslahah in the proposition (hujjah) quite careful in using it.

Because however what this scholar did is the courage to establish a law in the

things at that time found the legal guidance.33

The scholars who accept the maslahah as the proposition to establish the

law, provide some conditions, there are:34

1. The benefit is tend to be primary is not based on mere presumpitions.

Specifically, the benefit is logically acceptable to its existence.

Therefore, the purpose of realizing a law in Islam aims to bring

benefits or eliminating the disadvantage. This matter of course will not

be realized if the determination of the law based on the benefit which

based on the prejudice (wahmiah).

2. The welfare is in line with the maqasid shari'ah and is not contradict to

the nash or the qath'i postulate. It means the benefit must be in line

with the benefit which syar'i has been set before.

33

Yusuf Qardhawi. Keluwesan dan Keluasan Syari’at Islam., page.36. 34

Wahbah al-Zuhaili, Ushul al-fiqh al-Islami, (Beirut: Daar al-fikr, 2001), Jilid 1, 2nd

print,

page. 799-800. Abdul wahab Khallaf, ilmu Ushul al-fiqh, (Kuwait: Dar al-Qolam, 1978), 12th

print, page. 86-87.

26

3. The benefit is generally applicable to the people, not the benefit of a

particular individual or group. This is aligning with the nash that Islam

is a religion of mercy for the universe.

As for the proposition (hujjah) usage of maslahah in establishing the law

by jumhur ulama is based on a number of reasons as follows:

1. The result of induction of verse or hadith indicates that every law contains

the benefit to mankind. In this connection, as the God said:

Mean : “We do not send you (Muhammad), except to be a mercy to all

humanity. (QS. Al-Anbiya 21:107)

The provisions in the verse of Qur'an and the Sunnah of the Prophet,

everything are intended to achieve the benefit of mankind, in the world and

the hereafter. Therefore, to apply the maslahah to other laws that also

contain the benefit is legal.

2. The human well-being will always be influenced by the development of

their place, age, and the environment. If the Islamic Shari'ah is limited to the

existing laws alone, it will bring any difficulties.

3. Jumhur ulama also proposed by referring to some Prophet‟s companion,

such as Abu Bakar who collecting the Qur'an on the suggestion of 'Umar bin

al-Khatab, as one of the benefits to preserve the Qur'an and to write the

Qur'an on one language during 'Usman bin'Affan's time in order to preserve

the absence of any difference in the reading of the Qur'an itself.35

35

Ma‟ruf Amin. Fatwa dalam sistem hukum islam, page.164-165.

27

D. Maslahah Analysis Method

Such as the other analytical methods, maslahah is also a method of

istinbath approach (law-setting) which the problems are not explicitly

regulated in the Qur'an and Hadith. It's just only that this method is more

emphasis on aspects of the benefit directly. Maslahah is the study of the law by

considering the aspect of the benefit and avoiding destruction, for an act that is

not expressed explicitly in the Qur'an, but still reachable by the the principles

of doctrine which expressed inductively by the Qur'an in a different act. In this

context, the Qur'an verse does not serve as a postulate which showing a certain

legal norms, but become the evidence to the truth of the commentaries of the

law's fatwa. Thus, the system of analysis is justified because it fits with the

tendency syara in determining the law.36

The maslahah approach in the method of legal study begins with the

formulation of its rules which is done through a system of inductive analysis of

the legal propositions of an act that different from each other but showing the

same doctrinal substance. The similarity in its substantial dimension is the

premise which become the formulation of its inductive conclusion, so it can be

formulated into the maslahah principles which is the rule of kulli..37

Basically the majority of ushul fiqh experts accept the maslahah

approach in the method of legal studies.38

But this approach, however, tends to

have become the identity of the fiqh mazhab maliki, where the legal

commentaries are always out of consideration. There are several arguments

presented by Malikiyah scholars about the use of maslahah approach in the

method of legal studies, namely:

1) It is that the Prophet‟s companions showed the attitude of the orientation of

welfare in various act and religious acts, such as collect and write back the

verses of the Qur'an in full into the mushafs, and distribute it to the

community.

36

Hasbi Umar, Nalar Fiqh Kontemporer, (Jakarta: Gaung Persada Press, 2007), pge. 113 37

Hasbi Umar, Nalar Fiqh Kontemporer., page. 115 38

Mustafa Zaid, al-Maslahah fi al-Fiqh al-Islami wa Najmu al-Din al-Thufi, kaherah, dar

al-Fikr al-Arabi, 1964 page. 48

28

2) It is that as long as the maslahah runs in harmony with the syar'i's intention

in the enactment of the law, then it will be suitable with the syar'i will to the

mukallaf. Thus, omitting the good is the same as ignoring the will of syar'i.

3) If the law determination did not consider the aspect of the benefit, then

every mukallaf will face various difficulties in his life.

Mustafa Zaid presented several arguments for the maslahah usage in the

study of law, as follows.39

1) The purpose of the shari'a descend is that the mukallafs does not perform an

action or behavior following their own desires, if the passion which are the

base of their behavior will be exposed to mafsadat (destruction).

2) The scholars agreed that in every behavior and action there is always aspect

of maslahat or mafsadat. Maintaining or realizing the aspects of maslahat is

the most important part to gain a good life in the world and in the hereafter.

3) Most of the maslahat or mafsadat is influenced by conditional development.

Therefore, the study of maslahah must be done continuously by always

paying attention to the development of society condition.

Meanwhile, according to Imam Syatibi, as quoted by Husein Hamid

Hasan, there are some rules that can be used by the scholars in making

maslahah analysis,40

namely:

1) The action law is the same as its motive law. This rule is formulated after

considering some legal provisions, including Allah SWT banned every

mukallaf to approach adultery (khalwat). The position of khalwat law which

is the cause of adultery, in this context, is the same as the law of adultery

itself which is the motive of khalwat.

2) Giving priority to the common benefit rather than the special benefit. This

rule is formulated by paying attention into several legal norms, they are, the

prohibition against the urban people to buy goods from villager‟s products in

their village, if the villager is not aware of the market price developments.

39

Mustafa Zaid, al-Maslahah fi al-Fiqh al-Islami, page. 50 40

Husein Hamid Hasan, Nazariyat al-Maslahah fi al-Fiqh al-Islami, (Beirut, Dar al-

Nahdah al-arabiyah, 197), lihat juga Hasbi Umar, Nalar Fiqih Kontemporer, page. 115-116

29

3) Avoiding greater harmness. This rule is formulated after considering some

verses or nash that command Moslem to strive in the way of Allah, even

though it must be through war.

4) Maintaining the soul. This rule is formulated after considering the various

legal norms that require Moslem to pay alms to be distributed to the poor.

Substantially the rules reflect the spirit of Islamic theory to nourish the soul

and life.

5) Closing opportunities for committing a crime. This rule is formulated as an

implication of the maslahah principles that have been formulated above.

E. Maslahah Mursalah Object

No one denied that Islamic shari'a is intended for the benefit of mankind.

It brings people to goodness and happiness and prevents evil and denying

harmness.

The primary and principles of benefit has been outlined in the text of the

shari'ah completely and has ended since the death of the Prophet Muhammad.

The equipments and methods to obtain the benefits have been growing and

diverse, conformable with the development of history and human civilization

itself. The welfare of human life which related with the situation and

conditions of the Prophet's time, immediately gained a recognition and

validation of shari'ah the text if it is has fixed and revoked if it is not justified.

The canceled maslahat means not to be considered a maslahat by the shari'a.

The object or scope of the application of maslahah according to the

scholars who use it sets the boundaries of territory and its usage, that is only for

the problems outside the area of worship such as mua'amalah and tradition. In

the matter of worship (in a special sense) maslahah can not be used as a whole.

The reason is because maslahah it is based on the sense consideration about

either good or bad a maslahah, while the sense can not do that for worship

problem.41

41

Amir Syarifudin, Ushul Fiqh Jilid 2, page. 340

30

The examples of the of maslahah usage include: The Prophet‟s

companion of Usman ibn Affan has collected the Qur'an into several mushafs,

but this was never done in the time of the Prophet saw. The reasons that

encouraged them to do the collection is nothing but maslahat, that is keeping

the Qur'an from extinction or loss kemutawatirannya due to the death of a large

number of hafidz from friend‟s generations.42

Furthermore, if we can pay attention to the legal products of the scholars

today, it will be found that many of these legal products are based on maslahah

considerations, such as the MUI fatwas, for example: its fatwa on the necessity

of "halal certification" for food, beverage and cosmetics. Such a thing has

never been has nash text directly offended, but seen from the ruh of shari'a is

very good and this is a positive step in protecting mankind (especially Moslem)

from food, beverage and medicine and cosmetics that is not halal for

consumption, and much more.43

Another example of the maslahah application in contemporary problems

that have not been shown by the law of the Qur'an and Al-Sunnah nash, namely

the recording of marriages in the books of fiqh, about the marriage recording

does not include the legal requirements of marriage. Most likely, the scholars at

that time had not considered marriage recording to be important and useful. On

the other hand, marriage recording is not prohibited in Islam, it even brings

many benefits such as orderliness, legal certainty, and prevents monogamous

marriages or wild polygamy. Therefore, with maslahah consideration requires

the registration of such marriage in Law no. 1 year 1974, Article 2 paragraph

(2) and Article 5 paragraph (1) KHI. In Article 5 Paragraph (1) of KHI is

clearly stated "In order to guarantee marriage order for Islamic society every

marriage should be recorded”.44

42

Muhammad Abu Zahrah, Ushul Fiqh, page. 222 43 Wahidul Kahar, Efektifitas Maslahah Mursalah dalam Penetapan Hukum Syara’, page.

46-47 44

Nur Kholis, Antisipasi Hukum Islam dalam Menjawab Problematika Kontemporer

(Kajian Terhadap Pemikiran Maslahah Mursalah Al-Ghazali), page. 4 artikel

http://nurkholis77.staff.uii.ac.id/antisipasi-hukum-islam-dalam-menjawab-problematika-

kontemporer/

31

When observed the legal products produced by the Prophet‟s

companions, the tabi‟ins and the scholars, all are the result of ijtihad with

maslahah considerations even though they do not use the term.45

45

Wahidul Kahar, Efektifitas Maslahah Mursalah dalam Penetapan Hukum Syara’, pg.49

32

CHAPTER III

COPYRIGHT IN THE PERSPECTIVE OF ISLAMIC LAW AND

POSITIVE LAW IN INDONESIA

A. Copyright According to Islamic View

a. The Definition of Copyright in Islam

Related to the issue of copyright in Islamic law, the writer started

with the discussion of the rights in Islam, There are some definitions of the

rights which proposed by the fiqh scholars, some mutaakhirin scholars

gave the definition of the rights with “a law that has been established

syara”. Mustafa Ahmad az-Zarqa defined it as a singularity in which the

authority is designated by syara’ to him. Shortly Ibn Nujaim the fiqh

madzhab Hanafi expert defined it as a protected specialty.1

Meanwhile, Tengku Muhammad Hasbi Ash-Shiddieqy gave

definition of the rights into two part as particular and general

understanding. The rights in specific defined as a set of rules and nash that

manage the foundations which must be obeyed in the human relationship,

either about individuals and about wealth as well. The rights in general

defines as a provision which the authority is appointed by syara’ to a

person.2 The rights in the general definition are:

تكليفا رع سلطة ا ر بو الش اختصاص يقر

“A provision by which syara' sets a power or a legal burden”.

In Islamic vocabulary the copyright is known as كار ت حق إلب

(Haq Al-Ibtikar). This word consists of two sets namely the word of

“haq” and “al-ibtikar”. Among the definition of the haq is the singularity

that belongs to a person or a group of people over something, according to

1 Abdul Aziz Dahlan. Ensiklopedia Hukum Islam jilid II.(Jakarta: Ichtiar Baru Van Hoeve,

1996). page. 486 2 Teungku Muhammad Hasbi ash-Shiddieqy. Pengantar Fiqh Muamalah, Cet. 4

(Semarang: Pustaka Rizki Putera, 2001). page. 120-121

33

Haq Al-Ibtikar terminology is the privilege of a creation that was first

created. Fathi Al-Duraini defined it with:

ه الديب نح اسخة في النفس العلم ا ر الفكرية التي تفتقت عنيا الملكو الر الص

ل ن قذ أبذعو ى ا يك م يسبقو إليو أحذ مم

“The ilustration of thought produced by a scientist through his

thinking and analysis, the result is the first invention or

creation that has not been raised by the previous scientists”.3

This is becoming the basis for the rights of the ownership for the

creator of the work of the copyrighted works. In the fatwa of the

Indonesian Ulama Council (MUI) stated that copyright is an exclusive

right for the creator or the recipient of the right to announce or multiply his

creation or to grant permission to it by not reducing the restriction under

the applicable laws and regulations. The copyright definition mentioned in

this fatwa refers to the copyright law in Indonesia.4

The Syafi'iyah, Malikiyah and Hanabilah scholars argued that the

results of one's works and creation are included in the resources which are

not only material but also beneficial. Therefore, the thoughts, copyrights or

creations derived from human thought are worth the treasure.5

According to Nasrun Haroen in his work cited the opinion of Fathi

ad-Duraini stated that ibtikar is the ilustration of the thought which

produced by a scientist through the ability of thought and analysis, and the

result is the first invention or creation that has not been raised by the

previous scientists. This definition implies that in terms of the form, the

results of this thought do not lay stand-alone material that can be touched

by the human’s senses, but the new thought is shaped and has an effect

when it has been poured into writings like a book or other media. But this

ibtikar does not mean anything new, but can also be the invention of the

3 Fathi Al-Durainy, Al-Fiqh Al-Islamy Al-Muqaran Ma’a Al-Madzahib.Damaskus:

Maktabah Thurbin, 1980.page. 223 4 MUI. Fatwa MUNAS VII Majelis Ulama Indonesia, 2005.

5 Wahbah al-Zuhaili.Al-Fiqh Al-Islami.page. 2862

34

previous scientists, such as translation of the thoughts of the others into

foreign languages.6

Ibnu Arafah argued that the wealth outerly includes the objects that

can be sensed and the objects ('ard) that can not be in the sensed

(benefits), he defined al-ard as a benefit. This includes the works that are

actually human thoughts that can not be utilized except to relate them to

the creator and the source, which takes the form of material, such as books

and others. The act of copying, printing, translating, duplicating,

reproducing, modifying and otherwise with commercially-motivated of a

person’s or a party without the permission of the owner’s copyright or

their legitimate heirs or the one who authorized by the author is an unjust

act (dzalim) which prohibited by Islam, this includes the category of theft

and borrowed (ghasab) the rights of others. There is a proposition in the

Qur’an that can be used as a basic for prohibiting copyright infringement

by such actions in surah Al-Baqarah verse 188:

Mean: “And do not eat of the wealth among you with the wrong manner.

And (do not) you bribe it with that wealth to the judges, in order that you

may eat some of the other's wealth by the way of sin, whereas you knew”.

The above verse provides a foundation for Moslems not to use the

rights of others, nor to consume or abuse other people's property except

with their consent and willingness.7

6 Nasrun Haroen. Fiqh Muamalah. (Jakarta: Gaya Media Pratama, 2007). page. 39

7 Masjfuk. Masail Fiqhiyah Kapita Selekta Hukum Islam. Edisi I. Cet I. (Jakarta: CV. Haji

Masagung, 1994). page. 214

35

In its own right there is contained the economic rights (haq al-

iqtishadi) and the moral rights (haq al-adabi). Regarding the economic

rights, every the creators of their copyright work as mentioned to gain the

material from the work of his creation. This is alike of the definition that

mentioned by Abdullah Al-Muslih and Shalah Al-Shawi which mentioned:

The copyright is a privilege that possessed by a writer or author who can

be rewarded with money, sometimes this right is also called abstract

rights, the art or literary property rights or intellectual rights, this right also

means the commercial price of the article or writings, the price is limited

by the commercial quality and profit which can be realized by published

the result of the writings and commercializing it.8 The existence of this

economic right showed that every creator has a full power over his works,

so he has the right to take benefit both material and morally from his work.

b. The Protection of Copyright Law in Islam

Islam as a religion has regulated or explained how a person

appreciates the creation or work of others. Islamic law views the actions of

a person who violating the copyright is merely a halal or haram domain.

Halal in the meaning is allowed to do, while haram, on the opposite, is

strictly forbidden to do. Therefore, there are the sanctions which have said

to the sinner and will be punished later in the afterlife.

In the Islamic theory about the prohibition of stealing, the law of

stealing has been affirmed in the holy of Qur'an found in surah al-Maidah,

5:38

8 Abdullah Al-Muslih dan Shalah Al-Shawi. Fikih Keuangan Islam.Beirut: Dar Al-Kutub

Ilmiyah. 1996.page. 319

36

Mean: “Men who steal and women who steal, cut off both hands (as) a

vengeance for what they did and as punishment from God. Allah is The

Mighty and The Wisest.”

Islamic shari'ah is descending to realize the benefit and avoid the

damage.9 An important principle that must be well understood is that in

Islam the owner of the essential property is Allah SWT. The human is

limited to performing the functions of istikhlaf only. This concept

reinforces the divine characteristics in Islamic economy. A true Moslem

must have a firm belief that he is a creature of God. He carried out his

activities on the earth of God's creation, with abilities that are also fully by

the God's grace, with also the media which God provided and certainly

also have to follow the rules God has made.10

If after a Moslem earns the property, then the property is the

property of Allah, while the mankind is a representative and the trust

holder of the property, which will be requested their accountability later.11

So actually the ownership of the mankind’s property is amanah, istikhlaf,

and mas`uliyah. One rule format of ownership in Islam is the ownership

recognition of individual ownership which obtained through a legal way.

This ownership on the one hand needs to remain interpreted as a God's

mandate, the owner must continue to realizing that he only performs the

function of istikhlaf. On the other hand, the ownership must remain

sustainable, not to be impaled through the wrong ways.

The protection of property rights (Hifdzul maal) is one of the goals

of Islamic law (Maqashid Syari'ah). This is including the need for the

dharuri of every human being.12

Therefore, when Islam recognizes the

9 Shalah ash-Shawi dan Abdullah al-Muslih, Fikih Ekonomi Keuangan Islam, (Jakarta:

Darul Haq, 2008), page. 316. 10

Yusuf Qardhawi, Peran Nilai dan Moral dalam Perekonomian Islam, diterjemahkan oleh

Didin Hafidhuddin dkk. (Jakarta: Robbani Press, 2001), page. 39. 11

Muhammad Syauqi al-Fanjariy, Al-Mazhab al-Iqtisadiy fi al-Islam (Riyadh: Dar al-

Funun, 1981), page. 135. 12

Imam Syatibi. Al-Muwafaqat Fi Ushul Al-Ahkam juz II, Beirut: Dar Al-Ma’rifat. page. 10

37

copyright as one of the property rights, the ownership will be also

protected. These protections include:

The prohibition to consume other people's wealth with the wrong

manner. In the scope of the copyright if a person infringes the other’s

copyrights without permission, and then it means taking the owner’s

property without any willingness from them. And this is forbidden,

because the property right of a Moslem is protected. As reaffirmed in the

surah an-Nisa 'verse 29:

Mean: “Anyone who believe, do not eat one another's properties in a false

way (not true), except in the trades that apply on the basis of liking each

other among you. And do not kill yourself. Truly, Allah is Most Merciful

to you.”

The second aspect of the copyright protection is the scientifical

culture in Islam, as mentioned by imam Al-Qurtubi that one of the

blessings of knowledge is to rely on any opinion to the owner of that

opinion.

In addition the rule fiqh 13الضرريزال

Mean of danger or loss rules had to be omitted

13

Himpunan Fatwa Majelis Ulama Indonesia, Fatwa tentang Hak Cipta, Jakarta 2003, page

415

38

from the hearts should understand that the losses do not protect

copyright has to be eliminated , because it protects wealth or copyright is

the right of affairs.

In addition, the Indonesia Ulama Council (MUI) as the official

guardian of Islamic law in Indonesia has also established that intellectual

property rights in view as one of the huqqul al-maliyyah (property rights)

who get legal protection as a maal (wealth). One of them is related to the

copyright.

B. Copyright in Positive Law

a. Definition

The term of copyright was first proposed in Indonesia by Prof. St. Moh.

Shah, S.H. at the Cultural Congress 1951.14

The congress accepted the copyright

term as a substitute for the author's rights term that contained in Auteurswet 1912.

The term of authorship is considered less extensive because the author's term gave

the impression of "narrowing" the meaning, as though the rights of the authors are

only those of the author or those who related in the term of composition of the

writings. Since the congress the copyright term was considered more appropriate

and subsequently used as a substitute for the rights term of the authors.

The applicable law on The Copyright Law Number 28 Year 2014 provided

a provision on the definition of copyright in Article 1 paragraph (1) as follows:

The Copyright is an exclusive right of the Creator that arise automatically

on the basic of a declarative principle after one creation being in real form

without prejudice to the restrictions that appropriate with the provisions of

legislation

The Universal Copyright Convention (UCC) in Article V stated that the

copyright includes the sole right of the creator to create, publish and authorize to

make the translation of works protected by this agreement.15

14

OK. Saidin, Aspek Hukum Hak Kekayaan Intelektual, (Jakarta: PT Raja Grafindo

Persada, edisi 5, 2006), page. 58. Read also Ajip Rosidi, Undang-Undang Hak Cipta

1982, Pandangan Seorang Awam, (Jakarta: Djambatan, 1984), page. 3 15

OK. Saidin, Aspek Hukum Hak Kekayaan Intelektual., page. 45

39

The above-mentioned copyright definitions essentially formulate the same

thing and there is no conflict or normative conflict (conflict of law). Indonesian

copyright law, especially Law no. 28 Year 2014 provided a more complete

understanding of copyright. This is understandable because the law is arranged

more recently. This means that the creation of the Law no. 28 Year 2014 being

done after searching some previous rules both applicable in the national and

international scope.

The development of the understanding of the copyright in Indonesia

recently, began to show a progressive result that are quite encouraging. This is

important, considering a rapid development of science and entertainment industry

in Indonesia can not be separated from the existence of the copyright that

guaranteed the rights for the owner and or the copyrighted works holder.16

The copyrights in a subsequent development transformed into exclusive

rights for the authors, whether to exploit economically or the rights to the other

facilities relating to his works.17

Realizing that from the economic aspect of copyright has an important role,

some countries then held a convention about this issue, such as the Bern

Convention and the Universal Copyright Convention (UCC).

According to the Bern Convention, the copyright is a right that effectively

protects the author of his work in the form of literary and artistic works. The

Convention has three principles, namely:18

1. The principle of national treatment or assimilation, it means providing

equal protection to the creations that derived from the participants of the

convention such as providing protection for the creation of citizens

themselves.

2. The principle of automatic protection, which means that the protection

is not granted among of any formalities, such as the existence of the

16

Yusran Isnaini, Hak Cipta dan Tantangannya di Era Cyber Space, (Bogor: Ghalia

Indonesia, 2009), page. 8 17

Sudargo Gautama, Segi-segi Hukum Hak Milik Intelektual, (Bandung: PT. Eresco, 1990),

page. 7 18

Harsono Adisumarto, Hak Milik Intelektual Khususnya Hak Cipta, (Jakarta: Akademika

Pressindo, 1990), page. 44

40

copyright registration and official notification of the announcement or

the registration payment.

3. The principle of independence of protection, ie the protection is not

depending on the protection existence in of the origin country of the

creation.

In Indonesia, the existence of a copyright arrangement began with the

issuance of the Copyright Act Number 6 Year 1982 which enacted by the

government to replace the Auteurswet 1912 from a Dutch heritage. Following the

Copyright Act Year 1982, a successive amendment to the copyright laws in

Indonesia includes the Copyright Law number 7 of 1987 which was later amended

into Law number 12 Year 1997 on amendment to Law number 6 of 1982 about

copyright, as amended by Act number 7 In 1987, the issuance of Law number 19

of 2002 about Copyright, as the current development the stakeholder policy

absolutely seeing comprehensively how the world of copyright has changing, in

October 2014 has been issued the latest regulation, the Law number 28 Year 2014

about copyright, the issuance of the latest copyright law is nothing other than the

coaching and development of national law which continues to see the

development of an era.

The copyright is an inherent private intellectual right to its creator. When

the intellectual work has been successfully manifested in a certain form, then

since then the copyright also come out and belongs to its creator.

According to UUHC, the creator is a person or some people individually or

as a group produces a creation which is tend to be typical and personal.19

Typical

and personal forms can be interpreted as the manifest of the ideas and thoughts of

the creator who shows about his identity and quality. For example, a songwriter A

is known by the public for sad and melancholy love songs, whereas the songwriter

B is known by the public for his vigorous songs and social criticism. Thus, the

songwriter indirectly showed identity through the works that produces.20

19

Salinan Undang-Undang Nomor 28 Tahun 2014 tentang Hak Cipta 20

Yusran Isnaini, Hak Cipta dan Tantangannya di Era Cyber Space, (Bogor: Ghalia

Indonesia, 2009), page 10

41

b. The Basic Legal

The Copyright Act (UUHC) was arranged first time in the Law Number 6 of

1982 about Copyright. Then, it amended with the Law Number 7 of 1987. In

1997, it changed again with the Law number 12 of 1997. In 2002, UUHC onve

again changed and regulated into the Law number 19 in 2002. Along with the all

the changes and developments in the technology world, then in 2014 the issuance

of the Law number 28 of 2014 abour copyright, as a substitute of the Law number

19 of 2002, but in the provisions of the closing of the section 123 in the latest

copyright law explained at the time when this law apply, all the laws and

regulations which are the implementing the regulations of the law number 19 of

2002 declared remain valid as long as they are not in contradict with the

provisions in the latest UCHC, as some of the applicable implementing

regulations are :

− The Government Regulation of the Republic of Indonesia Number 7 of

1989 concerning on the Amendment to Government Regulation Number

14 of 1986 concerning to the Copyright Board was set on April 5, 1989;

− The Government Regulation No. 1/1999 on Translations and/or

Reproduction of Works for the Interests of Education, Science, Research

and Development established on 14 January 1989;

− The Government Regulation of the Republic of Indonesia Number 14 of

1986 concerning on the Copyright Board was set on March 6, 1986.

− The Government Regulation of the Republic of Indonesia Number 45 Year

2016 concerning on the Types and Fare on Non-Tax State Revenues

Applicable to the Ministry of Justice and Human Rights;

− Decree of the President of the Republic of Indonesia Number 74 Year

2004 about Ratification of WIPO Performances and Phonograms Treaty,

1996/WIPO Treaty Regarding Performance and Voice Recorder;

− WIPO Treaty Regarding Performance and Sound Recording.21

21

http://laman.dgip.go.id/layanan-kekayaan-intelektual/hak-cipta/peraturan-terkait-hc Diakses pada tanggal 02 Oktober 2017 Pukul 21.51 wib.

42

c. The Scope of Copyright

The Law Number 28 of 2014 about Copyright, Republic of Indonesia gazette

of 2014 number 266, supplementary to the Republic of Indonesia gazette number

5599 was ratified and enacted in Jakarta on 16 October 2014, consisting of 19

chapters, and 126 articles and explanations.

The Law Number 28 of 2014 on Copyright Republic of Indonesia applicable

to all the creations, all of such creations affirmed in the the Copyright Act article 2

as written:

a. All creations and products rights related to Indonesian citizens, residents,

and legal entities.

b. All creations and related product rights are not Indonesian citizens, non-

residents of Indonesia, and not Indonesian legal entities for the first time

being announced in Indonesia.

c. All creations and/or related rights products and the users of works and/or

related products rights are not Indonesian citizens, non-Indonesian

residents, and non-Indonesian legal entities under the conditions :

1. The origin state has an agreement with the Republic of Indonesia

concerning the protection of the Copyright and Related Rights; or

2. The origin state and the State of the Republic of Indonesia are parties

or participants in the same multilateral treaty on the protection of

Copyright and Related Rights.22

Then the creation or the works are the creation or the works of the creator in

any forms which shows its authenticity in the field of science, art or literature,

based on the Article 40 of the Indonesian Copyright Act. The items which covered

by the copyright are as follows:

a. Books, computer programs, pamphlets, layouts of published papers, and all

other written works.

b. Discourses, lectures, speeches, and other creations which similar.

c. The props are made for the benefit of education and science.

22

Salinan Undang-Undang Nomor 28 Tahun 2014 tentang hak cipta, page 5.

43

d. Songs and music with or without text.

e. Drama or drama musical, dance, choreography, puppetry, and pantomime.

f. Art in all forms such as painting, drawing, sculpture, calligraphy, sculpture,

carving, collage, and applied art.

g. Applied artwork

h. Architectural Works

i. Map

j. Batik artwork or other motif art,

k. Photographic Works

l. Portrait

m. Cinematography

n. Translations, commentaries, adaptations, pamphlets, databases, adaptations,

arrangements, modifications and other works of transformation,

o. Translation, adaptation, arrangement, transformation, or modification of

traditional cultural expression;

p. Compilation of creation or data, whether in a format that can be read with

Computer programs or other media;

q. The compilation of traditional cultural expressions during the compilation is

original work;

r. Video games; and

s. Computer program.23

On the other hand, Indonesia UHC has also determined the works that are not

protected by its Rights of Creation. It was set in Article 41 of UHC Indonesia

which stated that there is no Copyright above:

a. Works that have not been manifested in a real form;

b. Any ideas, procedures, systems, methods, concepts, principles, findings, or

data even if they have been disclosed, represented, described, explained or

incorporated in a copyright work;

23

Salinan Undang-Undang Nomor 28 Tahun 2014 tentang Hak cipta, page 18-19.

44

c. The tools, objects, or products that he/she prefered to solve a technical

problem or which the form is only indicated for functional requirements.24

In addition to Article 42, there is no copyright to the work in the form of: the

results of open meetings, statutory regulations, state speeches or government

officials speeches, court decisions or the judge’s determination and scriptures or

religious symbols, the art of each person can multiply, announce or broadcast

without permission and this is not considered a copyright infringement. Here are

two restrictions which determined by Indonesia UHC that the provisions of

unconditional limits and restrictions with condition. The referred restrictions are

the things that can be categorized as copyright violations and which are not

included.25

In 1987, UUHC Year 1982 changed to the Law number 7 of 1987 on

Amendment to the Law number 6 of 1982 about Copyright. The high level of

piracy became the main reason for the UUHC changed in 1982. The various

deficiencies in UUHC 1982 were supplemented by four changes in the UUHC

Law of 1987, namely the issue of the criminal prosecution, the scope of the law,

the copyright law activation period, the relationship between the state and the

copyright holders.

Along with the development of human civilization that transcends national

borders. Indonesia as a part of the community of the world countries also

participates in various international activities, including commercial. In 1994,

Indonesia signed the Uruguay Cycle Agreement and ratified the agreement

package with Law number 7 of 1994 on Ratification of Agreement Establishing

the World Trade Organization. Uruguay Cycle amongst others includes the

Agreement on the Trade Related Aspects of Intellectual Property Rights (TRIPs).

In line with the provisions of the Law number 7 of 1994, it is necessary to

change UUHC Year 1987 to be adjusted with TRIPs. TRIPs required that the

states member comply with Art 1 through 21 Berne Conventions and their

24

Salinan Undang-Undang Nomor 28 Tahun 2014 tentang Hak cipta, page 19.

25

Salinan Undang-Undang Nomor 28 Tahun 2014 tentang Hak cipta, page. 78-82

45

attachments, except the rights that granted by the Art 6 bis. Thus, the ratification

of TRIPs by Indonesia could mean that Indonesia has ratified the Berne

Convention again, although Indonesia is not a member of the Berne Convention.

Furthermore, UUHC Year 1987 has changed to the Law number 12 of 1997 on

copyright.

UUHC Year 1997 did not long lasting. Scientific and technological

developments related to copyright require protection, including databases and

optical discs. On 29 July 2002 the new UUHC law was enacted, the Law number

19 of 2002 on Copyright. UUHC Year 2002 it certainly aims to refine the

previous UUHC and making adjustments with the development of the

international conventions. However, it should be noted that even the international

conventions are not perfect, because after the provisions of copyright conventions

such as TRIPs applied in Indonesia, the result still so many piracy happened.

The development of information and communication technology has

become one of the reasons for the newest rules on copyright. The latest copyright

law will address the economic aspects of both protection and development of

creative economy to be more optimal.

All Indonesian copyright laws basically referred to the international

copyright conventions. This can be seen from the provisions of Indonesia UUHC

starting UUHC Year 1982 to UUHC Year 2014.

Indonesia's copyright law system. In addition, the explanation of both

UUHCs stated that the purpose of copyright protection is in order to create a

healthy business competition climate that is necessary in carrying out national

development.

d. The Effect of Copyright Law

The effect of and development of copyright law cannot be separated from

the advancement of information technology and communication ment became the

reason for the issuance of on the rules of the latest concerning copyrights, the act

of copyright latest will achieve aspects concerning the achievement of the size of

46

the economy essentially and perfectly morally good rising sense of refuge and

creative economy development become more progress.26

The service of other objectives is no copyright protection is in order to

make competition among car leasing companies climate can be traced back a

healthy business that is required in executing development range time the

formation of up to the present time the subject of an observation writer there are

several of benefits in law property framework that makes it should also be noted

could be immediately felt by by the community, but as for a direct benefit that

was felt to be by communities from the results of direct observation writer and

among the companies were:

a. the traditional cultural expressions

The traditional cultural expressions protected there are in article 38 law no.

28 2014 on copyright, country has an obligation to work hard for better

community economic, the development of security system social and reduce

existing gap in distribution the income of an individual. Basically cultural

expression is identity the nation and rich cultural indonesian, which is in general

owned by all indonesian citizens, especially the government and people where

that culture was born that must be protected by law.27

Government roles in implentation the traditional cultural expressions

covered by the establishment of creative economy that is the first formed by

president jokowi through presidential regulation no 6 years 2015, the creative

economy or shortened bekraf has a duty assist the president in formulating, set,

coordinates, and synchronization creative economic policy.28

The creative economy in the face of global challenges have launched

application namely bekraf ipr information in mobile application ( biima ),

application that have function give insight on copyright and intellectual property

26

Naskah Akademik Undang-undang Nomor 28 Tahun 2014 tentang Hak Cipta, 27

Ma’had Tahfidh Yanbu’ul Qur’an, Al-Quddus Al-Qur’an dan Terjemahannya (Kudus:

CV. Mubarokatan Thoyyibah, 2014), h. 28 28

http://www.bekraf.go.id/profil/tugas acces on 03 June 2018

47

rights to the creative economy capable of joins on his, his work in accordance

with the regulations legislation, it they have an impact economical and as income

for creative creative economy, so that independence the people and the country be

increasingly independent in a nation economy development.

Another example in the context of the traditional cultural expressions in

impact of the existence of laws copyright is develop a community a hat bamboo

the area district capital of tangerang, well in advance before laws are both to be

issued this community have formed line of judges, with the addition of rules in

copyright law number 28 years 2014 indirectly accommodate the absence of

several sample business operators creative ways to cope with a hand in developing

the art or work of traditional, the development of bamboo craft or community a

hat bamboo as far as of the observation of writer since stipulated in the regulation

of laws in the expression the traditional culture of that was patronized primarily

the spirit of the size of the economy has encouraged the growth of traditional

highly developed this has been proved with the comparative assessment initiation

in the establishment of the new the gallery micro small and medium enterprises

district capital of Tangerang.

b. Collective management agency

The framework of protection of a right in the form of mortgage loan

dubbed kpr ekspres property rights investment protection , not only resting on

aturan-aturan .But at the same time, the state with of before resentment between

me and my is the possessor of vast scope, in kontek copyright formed an

institution to which genealogic basis is husus operate under the provisions of in a

certain part of copyright protection and management .So formed of institutions to

provide assistance menejemen collectively.

Lmkn formed based on undang-undang number 28 / 2014 on copyright

.Undang-undang funding sources is designed to give priority to the where national

interests are taken of and pays attention to the balance between the interests of the

48

creator of , holders of the copyright, or the right owner of related to with the

community .In accordance undang-undang, lmkn is the institution shaped a

corporate body has been not for profit which is empowered by west wing creator ,

holders of the copyright, and / or proprietor of the right of insights regarding

manage the broad range of the right of his economic condition has become in the

form of pretty much bank on and distribute royalty.29

29

http://www.dgip.go.id/lembaga-manajemen-kolektif access on 02 Juni 2018

49

CHAPTER IV

THE MASLAHAH THEORY IN THE LAW COPYRIGHT

A. The Orientation of Maslahah Theory in the Law Number 28 Year

2014 on Copyright Development

As has been pointed out in the introduction of this thesis, that the scope of

maslahah in the establishment of the Law Number 28 of 2014 on copyright is a

form of integration of Islamic Law into the State law, Islamic law is a part of the

Indonesian National Law, as the implementation of the first principle of Pancasila

and article 29 clause (1) and clause (2) of the 1945 Constitution, through this

point, the provisions of Islamic law which require the State's power for its

implementation shall be guaranteed by the Constitution. Islamic law has an

important role to establish and fostering the individual character and social

influence of society in every aspect of life, therefore the best way is to seek

scientifically any transformation of Islamic norms into national law as long as

Islamic norms are compatible or not contradict with Pancasila and 1945

Constitution and relevant to the Indonesia’s legal needs.1

The maslahah theory in the copyright law development is the national law

establishment which transformed the Islamic law into the state law, which can be

explained in the next sub analysis of this thesis

1 Mohammad Daud Ali, “Kedudukan dan Pelaksanaan Hukum Islam dalam Negara

Republik Indonesa”. Dalam Cik Hasan Basri, Hukum Islam dalam Tatanan Masyarakat Indonesia,

(Jakarta:Logos Wacana Ilmu, 1998), page 48-49

50

B. Maslahah Theory Implementation in The Law of Number 28 of 2014

on Copyright

In the previous chapter, the authors have described that the law number 28

of 2014 on copyright contained of many siyasah syar’iyyah elements that are

based on istislah (maslahah method, namely in this copyright law contains many

rules that are not explicitly indicated by the mash qat'i in the form of the Qur'an

and the hadith. In addition, in the fiqh literature which is the opinion of the ulama,

it is rarely found related about copyright, however, the copyright can be traced

among others by the use of the term al-huquq al-adabiya. But this term got

refused by al-Zarqa' which stated that in terms of fiqh is more used the term al-

huquq al-ibtikar.2 The usage term of al-huquq al-ibtikar has a very wide scope of

coverage, which also include the right of al-adab including the individual

property right.3

In the fiqh, there are two elements that become the focus of attention in

establishing the copyright law including the intellectual property rights, from the

perspective of fiqh: first, an intellectual work before turning into books or other

solid objects, or simply in the form of a description of abstract thoughts or ideas;

second, the work of the intellectual must satisfy the element of creation or

invention (al-ibda'), not the repetition or plagiarism (intihāl) of the earlier works4

2 al-Zarqā’ dalamAl-Madkhal al-fiqh al-‘Ām, al-Fiqhu al-Islami fi Saubihi al-Jadīd, Juz III,

Beirūt: Dār al-Fikr, tt, page 21, 3 Individual property right identik dengan al-huquq as-sana’iyah wa at-tijariyah huquq al-

milkiyah al-sana’iyah. 4 Muhammad Fathi al-Duraini,Buhūs Muqāranah fi al-Fiqh al-Islāmi, Juz II, Beirūt:

Muasssasah al-Risālah, 1994, page 6-7.

51

in the related act, the material of the articles only based on the consideration in

maintaining and the people’s interests (the benefits).

The results of the study and the deepening of the content material in the

form of articles or each chapters in the law number 28 of 2014 on copyright, the

author got some articles that have an orientation to the problem, or there are

characteristics that showing the usage of maslahah mursalah method in the law

number 28 of 2014 on copyrights, that is ;

The above articles are the articles in the Law number 28 of 2014 on

copyright, which is the orientation of the implementation of maslahah mursalah

problem as far as the analysis that the author is taking in this thesis. In the ushul

review, the concept of copyright that is not qat'i or not explicitly contained in al-

quran and hadith, placing the copyright in the domain of ijtihadi not ta'abbudi.

Especially in the sharing, terms, types and others corraborate, the domain of

ijtihadi in the copyright arrangement. Although in the nash qat'i there are

arguments, but it is general which requires ijtihad to determine the law, using

ijtihad method such as ijma' ulama', qiyas, maslahah mursalah and others.

Therefore, when a rule (law) entering the realm of ijtihadi, then the law

itself has a high degree of flexibility, transparency to any interpretations,

futuristic, dynamic, long-term orientation or futuristic interpretations. In the view

of technological advances and advanced human civilization and modernization,

the copyright has a huge potential as one of the rights that must be protected. In

addition, the copyright also landed into economic region which conventionally

52

regulated and as Islam. The domain itself is Islam, entering a vast space of

mu'amalah, including in the development of a weak economy in society.

The existence of law number 28 of 2014 on copyright proved the urgency

of this copyright, until the (state) government involved its role to this protection.

This protection, in Islam enters the domain of protection of the property

ownership (hifdzul maal) as part of the goal of Islamic Shari'a (maqasid al-

syariah). In this connection, then the protection is included in the category of

dharuri to everyone.5 Because of the recognition of copyright in Islam, as well as

its recognition of property ownership, this ownership shall be protected as

protection of property.

The individual ownership to an object, whether it is self-owned or through

diversion, is not absolute, but the property is restricted because it is a necessity of

the people's life. Therefore, the government intervention is needed to protect the

property. According to Abdul Sami 'Al-Mishri that government intervention

including; inheritance system partition, orphan property, treasury distribution, the

alms obligation, and loss prevention.6 The government or state intervention (at-

tadakhkhul ad-daulah) according to Ash-Shadr is the intervention economic

activity to ensure the adaptation of Islamic law related to the economic activities

of society.7 Therefore, the government involvement and state through the law

number 28 of 2014 on copyright is the principle of protection which is the state

obligation.

5 Imam Syatibi, al-Muwafaqat fi Ushul Al-Ahkan, Juz II, Bairut: Dar Al-Ma’rifat, page 10

6 Abdul Sami’ Al-Mishri, Pilar-Pilar Ekonomi Islam, (Yogyakarta: Pustaka Pelajar, 2006),

page 46 7 Ija Suntana, Politik Ekonomi Islam, (Bandung: CV Pustaka Setia, 2010), page 54

53

Islam with a stand-alone economic system has explained all the matters

concerning the acquisition mechanism of ownership (almilkiyyah), management

(kayfiyyah al-tasarruf fil-mal), and developing ownership as well as the

distribution of wealth between each people (al-tawzi 'al-tarwah bayna al-nas).

Basically, the establishment of the laws built on the general principles of Islamic

economics (al-qawaid al-'ammah al-iqtishadi al-islamiyyah).8 This includes the

copyright as arranged in the Law number 28 of 2014 on copyright.

1. Morality and Economic Rights

In the law number 28 of 2014 there are two fundamental rights that

cause or measure the existence of the copyright protection, namely the

moral rights in article 5 and the economic rights in the article 8 law on

copyright. Both rights in Islam are called haq al-adabi (moral rights)

and haq al-iqtishadi (economic rights). The moral right in that sense is

"the inherent privilege of the creator." Viewing from the definition, the

moral rights are almost like the private property rights in Islamic law

(al-milkiyat al-fardiyah or private property). The existence of the

private property rights in the copyright is the implication of the

granting of permission by the rules of the conventional law context is

the copyright law, and in Islam is the Syar'i law.9

From the ownership showed out the authority to the mankind, which

may be of economic value set which set in the article 8 which

constitutes "the exclusive right of the creator or the copyright holder to

8 Taqiyyudi al-Nabhani, Al-Nizam Al-Iqtisidi fi al-Islam, Bairut: Dar Al-Ummah, 1990,

page 57 9 Taqiyyudi al-Nabhani, Al-Nizam Al-Iqtisidi fi al-Islam, page. 72-73

54

obtain the economic benefit of the creation". In this passage that later

in Islam it is called haq al-iqtishadi. A stage that can be achieved by

management (kayfiyyah al-tasarruf fil-mal), and the distribution of

wealth between people (al-tawzi 'al-tarwah bayna al-nas) as an

economic system born of Islam. The economic rights are set in the

aforementioned law, is the authority given to the owner of the creator

as the owner of the work. The authority is the utilization of his work,

in the form of compensation derived either from direct use or through

others.10

In addition, Islam basically teaches that the most basic ownership of all

wealth is God, mankind becomes the owner of the property only as a

message from God. The utilization of ownership by the human beings

is limited which must be in accordance with His decree, and for the

purpose which has been established through the teachings of religion.11

In the Islamic economic system, copyright as the right of private

property that deliver the economic rights, is called the way of the

property ownership of acquired with the way of Al-Tawallud minal

Mamluk as the principle, the property that arising from his property.12

The copyright, as a declarative right after the creation is manifested in

10 Yunus Al-Misri, Ushul Al-Iqtishadi fi Al-Islam, Damaskus: Dar Al-Qalam, 1999, page. 41-49 11 In a theological manner possession of by seen god at any time as the youths central and a human

being as a makhluk-nya , divided into 2: a. absolute mortgage loan dubbed kpr ekspres ( milkiyyatu al azal )

of him to whom belongs the kingdom of all ciptaan-nya including human beings .While those whose school

tuition mortgage loan dubbed kpr ekspres b. relative or people of the book is ( milkiyyatu al istikhlaf

messages for which i was brothers or sisters or your ) pt pgn promised to supply possession that is owned a

human being as a message for which i was from god .Hasan sirriy, Al Iqtishad al Islamiy : mabadi wa

khashais wa ahdaf, Markaz al Iskandariyah li al kitab, 1998, page 76 12 Dimyauddini Djuwaini, Pengantar Fiqh Muamalah, cet. 2, (Yogyakarta : Pustaka Pelajar, 2010),

page 42

55

tangible form. This copyright from mu'amalah Islamic economic point

of view, confirming that copyright is closely related to the masid al-

syari'ah. Regarding into this, hifzu al-maal or keeping property as the

basic principle of the copyright protection in Islam.

2. Copyright Diversion

As the author is conscientiously in copyright by far, the proprietary

rights of the copyright are divided into two parts, namely; private

ownership and state ownership. This allocation in accordance with the

rules is concerning the source and procedure of the property diversion

according to the Islamic law. In the Islamic economic system, the

diversion of copyright ownership rights is not set in the specific terms

in the sense qat'i. In article 16 verse 2 the number 28 of 2014 about

copyright, the copyright diversion is divided into 6 parts, namely;

inheritance; grant; waqf; testament; written agreement; or any other

justified cause in accordance with the provisions of legislation.

In the author’s opinion, the diversion can be also redeemed for reasons

of ownership in Islam. In Islam as far as this research is concerned, the

author can find the transitional principle as well as the principle of

ownership in Islam mentioned by Abdullah Abdul Husayn at-Tariqi,

ie:13

13

Abdullah Abdul Husain at-Tariqi, Ekonomi Islam : prinsip, dasar dan tujuan,

Yogyakarta; Magistra Insania Press, 2004, page 91-92

56

a. Mastery or transition (al khalafiah), which is a way that causes a

person to be able to control the property of others without having

to make hard effort or trading, such as inheritance and will.

b. The ownership of halal goods, where someone has something that

has not been owned by others, such as looking for fish in the sea.

c. The transactions, such as buying and selling, leasing, granting or

disposal of the goods.

d. The judge's decision to change the status of common ownership,

such as land and plantation.

e. Alms, living allowance, fines and nadzar property.

f. Physical work and the intellectual outcomes, including work at the

office, writing, composing and so on.

g. Waqf, that is the use of goods that have been tied up as belonging

to God.

The application of the maslahah mursalah theory in the copyright

diversion, is on the point of wakaf. In its development, wakaf became

one of the media of Islamic economic founding and development. In a

view of the concept of teaching, the argument of Al-Qur'an and Hadith

which explicitly stated the existence of waqf is not found. However,

the arguments can be identified from the general nashs. The

implication is that the waqf theory is placed on areas of ijtihadi nature,

not ta'abbudi, especially those related to management aspects, terms,

57

types and so on.14

The use of the copyright diversion as an individual,

collective, or state property rights indicates that the way the diversion

entering the domain of ijtihad scholar, which placed mursalah

masalahah as one of the considerations and methods of legal status,

allowing the copyrights diversion through wakaf.

3. Protected traditional cultural expression (article 38)

The third category is the right of state ownership, because the state

needs property to generate income, which in turn is used to carry out

its obligations. For example to organize education, maintain law,

maintain domestic security, protect the interests of society and so on.

Ibn Taimiyah mentioned that the main sources of state property are

alms, taxes, endowments, prizes, fines and spoils of a war (ghanimah),

as well as inventions that no owner.15

The country's wealth is actually a public good, the state government

acts only as a care taker. The state is obliged to use it for public

benefit, however it is not allowed to use it excessively. For example,

the alms should be distributed to the people who are entitled to receive

it in accordance with the provisions of syaria.

The state has an obligation to work hard for the economic progress of

the people, developing the social security systems and reducing the

14

Direktorat Pemberdayaan Wakaf Direktorat Jendral Bimbingan Masyarakat Islam,

Paradigma Baru Wakaf di Indonesia, (Jakarta: Dirjen Pemberdayaan Wakaf Direktorat Jendral

Bimbingan Masyarakat Islam 2006), page 26 15

A. A. Islahi, Konsep Ekonomi Ibnu Taimiyah, penerjemah H. Anshari Thayib, Surabaya,

Bina Ilmu, 1997, page 144

58

gaps that occur in the distribution of the individual income. Imam

Mawardi further explained that the task of the state is to continue the

mission of Prophet Muhammad SAW in keeping religion and carrying

out the mandate of world life.16

Based on several classifications of mashlahah described by the

scholars, the author analyzed that the protection of copyright through

arrangement in the form of the law number 28 of 2014, in the

mashlahah review, when viewed from the purpose of the time that a

mashlahah belongs to the world mashlahah category, in which there

are some rights and obligations associated with muamalah laws such as

social and economic interactions and not related to the laws of aqidah

(tauhid) and worship (mahdlah/pure). Whereas in muamalah, there is

the principle of the benefit of life, it is a principle which implies that

any civil relationship can be done, provided that the relationship brings

goodness, usefulness and helpful to the personal life and society,

although there is no provision in al-Qu'ran and al- Sunnah.17

Then, if viewed from the aspect of the benefit, the protection of the

copyright through the regulation in the form of the law number 28 of

2014, in mashlahah review related the protected traditional cultural

expression (article 38) is the common good (mashlahah 'Ammah).

Because basically the expression of culture is the identity of the nation

and the cultural wealth of the Indonesian nation, which it is generally

16

Abu al Hasan Ali bin Muhammad bin Habib al Mawardi, Al Ahkam as Sulthaniyah wa al

wilayat al diniyyah, Kairo, Dar al Wafa, 1989, page 3 17

Ahmad Wardi Muslich, Fiqh Muamalat ( Jakarta: Amzah, 2010), page 5.

59

owned by all Indonesian people, especially the government and

citizens where the culture was born which must be protected by law.18

Furthermore, the protection of cultural expression in terms of whether

or not changing mashlahah mashlahah al-mutaghayyirah (the benefit

that change in line with the changes in time, or environment, and or

people who live it). In other words, its protection continues as long as

the traits and/or qualities, the distinctive characteristics underlying the

rendering of protection still exist, and there is no protection when the

characteristics are lost. But no one can predict until when the sign or

unique carving of each region in Indonesia is still attached or even lost,

because essentially the change is a necessity.

The next is viewed from the aspect of the existence of mashlahah

according syara’, the copyright protection in the form of cultural

expression including the benefit in the category mashlahah al-

mursalah which in ushul fiqh terminology is defined as maintaining

the purpose syara' by rejecting everything that damages the creature.

The protection is very necessary because if there is plagiarism or other

crimes against the culture usage as the identity of the nation, then

certainly it will hurt many parties that are clearly contrary to the ideals

or goals of the benefit, which taking the benefit and eliminate

madhorrot (jalbu al-mashȃlih and daf 'u al-madhorrot). In addition

there is no syara' argument which specifically became the basic forms

18

Ma’had Tahfidh Yanbu’ul Qur’an, Al-Quddus Al-Qur’an dan Terjemahannya (Kudus:

CV. Mubarokatan Thoyyibah, 2014), page 28.

60

and types of benefit to the copyright protection in the form of cultural

expression so the benefit upon it excluding the category of mashlahah

mu'tabarah. Similarly, the existence of the copyright protection in the

form of cultural expressions that exist in the legislation does not

conflict with the provisions of syara' so that it does not belong to the

category mashlahah mulghah.

4. The registration procedure of the creation and related rights products

(articles 64-73)

The general terms and procedures of the copyright registration as

provided for in the act are not conflicting with the Islamic law.

Similarly, the sanction conditions for those who break the copyright

are aligning with the political system of Islamic law, because the

sanctions are in the category of ta'zîr which the form and the types are

submitted to the authorities. The most important thing here is that these

sanctions can be effective in protecting the rights, upholding justice,

realizing the benefit and not contrary to the particular nas.

Therefore, sharia’ recognition to the copyright gave the owner full

power to publish and exploit its benefits.19

There are four

characteristics of copyright in Islamic fiqh namely:

a. al-ikhtisās (specialization) is the person who possessing the

copyright has full authority and authority to make and take

advantage of the copyright, and others can not do so without the

19

Muhammad Fathi Al-Duraini, Buhus Muqaranah fi al-Fiqh al-Islami, Beirut: Massasah

al-Risalah, 1994, quoted by al-Taftazani, page 65

61

owner’s permission. This is the core of the copyright ownership.

Al-ikhtisās can be apply to something that has qîmah in the 'urf of

society.

b. Al-man'u, meaning that the copyright holder has the authority to

prevent others who illegally abuse and exploit the copyright. This

is a consequence of al-ikhtisās.

c. Juryān al-ta'āmul fîhi or can apply the law of transactions against

him according to al-'urf. This is a consequence of ownership,

because the principle of transactions is ownership.

d. Haq al-mutālabah al-qadāiyah, namely the right to prosecute in

front of the court if the copyright owner feels harmed by the other

party. This is a concrete form of fiqh protection against the

copyright.

5. Protected Copyright (art. 40)

The concept of copyright in Islam is different from the concept of

copyright on the other systems. Islam as a religion in accordance with

the human nature always prioritizes the benefit of human beings, so

that every thing that will destroy human nature then Islam take

preventive action in the form of prohibition to approach or justify that

it is prohibited (haram or makruh).20

Here it can be said that Islam only recognizes and protects the work of

creativity that is aligned with the norms and values that are in it. If the

20 Dahlan Abdul Azis, Ensiklopedi Hukum Islam 2, (Jakarta: PT. Intermasa, 2002), 1

st

print, page 636

62

work is contrary to Islamic values, then it is not recognized as a work

of creation, and even the protection of copyright does not exist. For

example the work of copywriting that carries the path of polytheism

like the paintings of indulgence, books which containing various of

polytheisms, songs that persuade to do the immorality activities and

many others.21

All types of copyrighted works are not recognized as a copyright

works in Islam, more clearly for the copyright work must be removed

and destroyed from the Islamic society. The copyright protection in

Islam is clearly different with the content in the positive law,

sometimes an intellectual work in Islamic view is prohibited but still

not banned according to some positive laws, such as the videos that

depicting the genitals, the films which break the belief , insulting

Islam or The Prophet and others. All of those works are not

considered the properties by Islam, but still regarded as law-protected

properties in the positive law.22

Thus, the copyright protection in Islam has the conditions that must be

fulfilled in order for a work to be recognized as the ownership of the

property rights. These conditions are closely related to the work of

copywriting which is the media to express the idea of the creator. The

terms are among:

21 TohaYahya Omar, Hukum SeniMusik, SeniSuara, dan Seni Tari dalam Islam, cet. ke-2, (Jakarta: Penerbitwijaya, 1983), page 54. 22

TohaYahya Omar, Hukum SeniMusik, SeniSuara, dan Seni Tari dalam Islam, page 65

63

a. Does not contain prohibited elements in it such as khamar, usury,

gambling, pork, blood and carrion

b. Not cause damage in the community such as pornography,

violence, invite people to do sin, damage the environment and so

forth.

In a book entitled Hadyu al-Islam: Fatawa Mu'ashirah, Yusuf

Qardhawi said there were things that should not be watched in some

films, because the films were mostly destructive. It generally showed

the girl who has a male friend who loves each other, honey-sweet

conversations and funny stories fascinating, festive scenes, crime

scenes such as robbery, murder and so on. These films teach low

behavior and morals. It's a good idea to leave behind entirely worse

impressions like mental-damaging movies, by not watching them.23

MUI also issued a fatwa in 2002, among others;24

a. Describing, directly or indirectly, erotic behavior, whether by

painting, drawing, writing, classified ad sound, advertisement,

speech, either through print media or through electronic media that

can escalating the lust is prohibited.

b. Leaving the part of genitals widely open and/or dressing tightly or

transparent with the purpose to be drawn both for printing and

visualizing is prohibited.

23

Yusuf Qardhawi, Hadyu al-Islam:Fatawa Mu’ashirah, translated by al-Hamid al-

Husaini, 1st print, (Jakarta: Yayasan al-Hamidi, 1994), page 878.

24 DSN-MUI, Himpunan Fatwa Dewan Syariah Nasional, Revision Edition, 3

rd print,

(Ciputat: CV. Gaung Persada,2006), 3rd

print, page. 541

64

Apart from the material (substance) of the copyrighted work, it is not

protected by a copyrighted work also related to how to get the

copyrighted work. Islam does not protect the possession of acquired

property by illicit means and protect property rights which obtained by

the lawful means. The protected varieties of Islam are ;25

a. Taking from the sources with no owners, such as minerals,

reviving the dead land, hunting, searching for firewood.

b. Taking from the owner by force due to the existence of halal

elements, such as spoils for a war, alms taking.

c. Taking legally from the owner and replaced for example in buying

and selling and various forms of agreement.

d. Legally retrieved from the owner and no iwadh for example a gift.

e. Taking without being asked for example the inheritance.

These types of properties are attributed to the copyright so any

copyrighted works obtained in a prohibited manner then it becomes

unlawful to use. As the treasures derived by unlawful means

implication that the copyrighted works obtained in a prohibited

manner is not protected as a right in Islam.

6. The acts that are not considered a copyright infringement (art. 43)

The fiqh scholar agreed to say that the foundation of copyright is the

urf (a habit which common in a society) and maslahah mursalah (a

25

Dahlan Abdul Azis, Ensiklopedi Hukum Islam 2, page 637

65

benefit not supported by the clause or hadith).26

The fiqh scholars also

agreed that the ownership rights of the thought and creation is a

material property. Therefore, the copyright when associated with the

mal (the property can be transacted, can be inherited if the owner dies.)

Thus, the copyright meets all the requirements of a property in Islamic

jurisprudence, and has the same position with other halal properties.

Therefore, the fiqh scholars claim the same legal protection with other

rights.27

7. The punishment conditions or sanctions (article 112)

Islam acknowledged the copyright existence as one of the property

rights, the ownership shall be protected as the property protection. The

property protection rights (hifdzul maal) is one of the Islamic Sharia’

(maqasid al-syariah) reviews, including in the need of every human

being dharuri.28

The protections are including:

a. The prohibition to eat other people's property in vanity.

b. The scientific aspect of Islamic protection in Islam, as mentioned

by Imam al-Qurtubi that one of the blessings of the knowledge is to

rely on to any opinion to the owner’s opinion.

In the Intellectual Property Rights Guidebook mentioned that the form

of copyright infringement is if an act violates the exclusive rights of

26

Dahlan Abdul Azis, Ensiklopedi Hukum Islam 2, page 635. 27

Dahlan Abdul Azis, Ensiklopedi Hukum Islam, page 636 28

Imam Syatibi, Al-Muwafaqat fi Ushul al-Ahkam, Juz II, Bairut: Dar Al-Ma’rifat, tt, page

10

66

the creator or the copyright holder.29

Shortly it can be concluded that

the form of copyright infringement are :

a. Declaration, showing off and distributing other people's creations

without permission

b. Enhancement the copyrighted works of others without permission

8. The existence or the inception of the Collective Management

Institution (LMK) (art 87)

Along with its peripheral, within the framework of the protection of

proprietary rights in the form of copyright, not only rely on the rules.

However, a country with a wide scope of its affairs, in the context of

copyright is established an institution that operating in the protection

and management of copyright. Then formed the Collective

Management Agency (LMK).

The above explanation, according to the author has been aligned with the terms of

the stipulation of mashlahah, are as follows :30

a. The benefit is essential, not imaginative in the sense that if the person who

has the opportunity and who focuses on it believes that building the law

based on the benefit will be able to take benefit and reject madhorrot for

mankind.

b. The welfare should be general (universal) for the people and not partial.

29

M. Djumhana dan Djubaedillah, Hak Milik Intelektual : Sejarah, Teori dan prakteknya di

Indonesia, page 94. 30

Saifudin Zuhri, Ushul Fiqih Akal Sebagai Sumber Hukum Islam (Yogyakarta: Pustaka

Pelajar, 2011),

page 102.

67

c. The benefit should be aligned with the maqosidsyari'ah and not contradict

the nash or the qath'i propositions. In the other words, the benefit is

aligned with the benefits that have been established syar'i. (the provision

which there is assertiveness in the Qur'an or the Sunnah of the Prophet, or

not contrary to ijma').31

From this property rights partition, it can be concluded that the right to property is

conditional and not absolute. This Islamic concept of property is radically

different from the Roman’s, which was then adopted by modern economists. In

Islam even though every individual is free to possess wealth, yet must obey and

adhere to the shari'a and morals conditions. Basically private property is a basic

institution, and under the certain conditions the state has the authority to intervene

in the individual property rights. However, it is wrong idea if saying that the

state's rights are above all. The concept of ownership in Islam is also different

from the socialists or communists, where Islam recognizes private property as a

human gharizah or tabi'at itself.32

31

Satria Effendi, Ushul Fiqh, ( Jakarta: Prenada Media, 2005), pages153. 32

A. A. Islahi, Konsep Ekonomi..., page 146

68

CHAPTER V

CLOSING

A. Conclusion

After exposing the entire discussion, then the end of this thesis the author

concludes, that in Law number 28 years 2014 on copyright have already

applied the theory of al-maslahah, it will break down the answers to the

following research as follows:

1. Orientation theory Al-Maslahah in the formation of the law and the

development of national law and was instrumental in the formation of

the law in the legal order, the occurrence is the benefit of Maslahah not

mentioned by certain propositions, both evidence-evidence which

supports it or reject it in detail, but the benefit is in line with the

objectives of Islamic law. Regarding the position of maslahah,

basically the majority of scholars agree that the theory could be made

hujjah maslahah in establishing Islamic law, even though they differ in

the application of such terms and placement of maslahah.

2. Implementation of the theory Maslahah in clauses of copyright law

Basically every law has the benefits or maslahah, but we should

examine more deeply about how the process of the development, the

legislation material that transformed the scope of Islam into the State

law, The Law of Number 28 of 2014 concerned about Copyright is

materially subjected many elements of Islamic law transformation

based on maslahah, as it proved by the explanation of the related

69

article in the previous chapter, and the process of creating this

copyright law which is more putting forward the benefit and the

people’s interests and also facing the global technology.

B. Suggestion

In the last part of this thesis, the author wants to give suggestions about the

existence of the Law number 28 of 2014 on Copyright, the purpose

making of this copyright became an attitude of the optimism in the

national law development.

The author generally shows in these below suggestions to the stakeholders

of the legislation establishment, in this case the Copyright Act and other

legislation, in addition to the general public and academic community.

1. Already being a new color in the development of national law in

Indonesia is the Islamic law integrating process to the State law,

Copyright Act is a manifestation of this integration, the suggestion for

the formulator of this Act is how to apply to every material and the

content of the Act which must be consistent to the progress of an era so

as to be directly proportional to the interests of the ummah, so that in

the future there is no suitability which can cause harm then it can be

changed and revised again.

2. For the legislators, the content should be prepared to reviewing from

various aspects, and must follow the progress of the times without

leaving the norm, so that the rule that produced has a great benefit.

70

3. For the entire academic community, and legal practitioners, especially

the faculty Syaria and law in order to contribute actively in the

legislation forming, so that every legislation which has generated

always transforming the Islamic law into the state law in Indonesia.

71

BIBLIOGRAPHY

‘Abd al-Rahmân, Jalâl al-Dîn, al-Masâlih al-Mursalah wa Makânatuha fi al-

Tasyrî‘, t.tp: Matba‘at al-Sa‘âdah, 1403 H/1983 M

‘Abd al-Salâm, ‘Izz al-Dîn ibn, Qawâ‘id al-Ahkâm fi Masâlih al-Anâm, Kairo:

Maktabat al- Kulliyyât al-Azhariyyah, 1994

Abu al Hasan Ali bin Muhammad bin Habib al Mawardi, Al Ahkam as

Sulthaniyah wa al wilayat al diniyyah, Kairo: Dar al Wafa, 1989

Adisumarto, Harsono, Hak Milik Intelektual Khususnya Hak Cipta, Jakarta:

Akademika Pressindo, 1990

Ahmad Bin Faris Bin Zakariyya, Mu’jam Maqayis al-Lugah, Juz III, Bairut; Dar

al-Fikr, 1979

Al-Bûti, Sa’îd Ramadân, Dawâbit al-Maslahah fi al-Syarî’ah al-Islâmiyyah,

Beirut: Mu’assasat al-Risâlah wa al-Dâr al-Muttahidah, 1421 H/2000 M

Al-Durainy, Fathi, Al-Fiqh Al-Islamy Al-Muqaran Ma’a Al-Madzahib, Damaskus:

Maktabah Thurbin, 1980

Al-Duraini, Muhammad Fathi, Buhūs Muqāranah fi al-Fiqh al-Islāmi, Juz II,

Beirūt: Muasssasah al-Risālah, 1994

Al-Fanjariy, Muhammad Syauqi, Al-Mazhab al-Iqtisadiy fi al-Islam Riyadh: Dar

al-Funun, 1981

Al-Ghazali, al-mutashfa, Beirut:Dar- al-Fikr, tt

Ali, Mohammad Daud, Hukum Islam dan Peradilan Agama (Kumpulan Tulisan),

Jakarta: PT RajaGrafindo Persada, 2002

Ali, Mohammad Daud, Kedudukan dan Pelaksanaan Hukum Islam dalam Negara

Republik Indonesa dalam Cik Hasan Basri, Hukum Islam dalam Tatanan

Masyarakat Indonesia, Jakarta: Logos Wacana Ilmu, 1998

Ali, Zainuddin, Hukum Islam Pengantar Ilmu Hukum Islam di Indonesia, Jakarta:

Sinar Grafika, 2013

Al-Mishri, Abdul Sami’, Pilar-Pilar Ekonomi Islam, Yogyakarta: Pustaka Pelajar,

2006

Al-Misri, Yunus, Ushul Al-Iqtishadi fi Al-Islam, Damaskus: Dar Al-Qalam, 1999

72

Al-Nabhani, Taqiyyudi, Al-Nizam Al-Iqtisidi fi al-Islam, Bairut: Dar Al-Ummah,

1990

Al-Muslih, Abdullah dan Shalah Al-Shawi, Fikih Keuangan Islam, Beirut: Dar

Al-Kutub Ilmiyah, 1996

Al-Syatibi, Abu Ishak Ibrahim ibn Musa ibn Muhammad, Al-Muwafaqat fi Ushul

al-Syariah, t,t:Dar ibn Affan, 1997

Al-Zarqā’ dalam Al-Madkhal al-fiqh al-‘Ām, al-Fiqhu al-Islami fi Saubihi al-

Jadīd, Juz III, Beirūt: Dār al-Fikr, tt

Al-Zuhaili, Wahbah, Ushul al-fiqh al-Islami, Beirut: Daar al-fikr, 2001

Amin, Ma’ruf, Fatwa dalam Sistem Hukum Islam, Jakarta: Paramuda Advertising,

2008

An-Naim, Abdullah Ahmed, Dekonstruksi Syari’ah, Alih Bahasa Ahmad Suaedy

dan Amirudin Arrani, Yogyakarta: Pustaka Pelajar,1994

Ash-Shawi, Shalah dan Abdullah al-Muslih, Fikih Ekonomi Keuangan Islam,

Jakarta: Darul Haq, 2008

Ash-Shiddieqy, Teungku Muhammad Hasbi, Pengantar Fiqh Muamalah,

Semarang: Pustaka Rizki Putera, 2001

At-Tariqi, Abdullah Abdul Husain, Ekonomi Islam: Prinsip, Dasar dan Tujuan,

Yogyakarta; Magistra Insania Press, 2004

Aziz, Dahlan Abdul, Ensiklopedi Hukum Islam 2, Jakarta: PT. Intermasa, 2002

Bakti, Asafari Jaya, Konsep Maqashid Syari’ah menurut al-Syatibi, Jakarta: Raja

Grafindo Persada, 1996

Dahlan, Abdul Aziz, Ensiklopedia Hukum Islam jilid II, Jakarta: Ichtiar Baru Van

Hoeve, 1996

Departemen Agama RI, Al-Quran dan Terjemahnya, Yayasan penyelenggara

penterjemah/pentafsir Al-Qur’an, Bandung, Lubuk Agung, 1989

Departemen Pendidikan dan Kebudayaan, Kamus Besar Bahasa Indonesia,

Jakarta: Balai Pustaka, 1996

73

Direktorat Pemberdayaan Wakaf Direktorat Jendral Bimbingan Masyarakat Islam,

Paradigma Baru Wakaf di Indonesia, Jakarta: Dirjen Pemberdayaan Wakaf

Direktorat Jendral Bimbingan Masyarakat Islam, 2006

Djumhana, M. dan Djubaedillah, Hak Milik Intelektual: Sejarah, Teori dan

Prakteknya di Indonesia, hlm. 94

Djuwaini, Dimyauddini, Pengantar Fiqh Muamalah, Yogyakarta: Pustaka Pelajar,

2010

DSN-MUI, Himpunan Fatwa Dewan Syariah Nasional, Edisi Revisi, cet. ke-3,

Ciputat: CV. Gaung Persada, 2006

Effendi, Satria, Ushul Fiqh, Jakarta: Prenada Media, 2005

Gautama, Sudargo, Segi-Segi Hukum Hak Milik Intelektual, Jakarta: PT Aresco,

1990

Haroen, Nasrun, Fiqh Muamalah, Jakarta: Gaya Media Pratama, 2007

Haroen, Nasrun, Ushul Fiqh, Jakarta: Logos Publishing House, 1996

Hasan, Husein Hamid, Nazariyat al-Maslahah fi al-Fiqh al-Islami, Beirut, Dar al-

Nahdah al-arabiyah, 197

Himpunan Fatwa Majelis Ulama Indonesia, Fatwa tentang Hak Cipta, Jakarta

2003

Islahi, A. A., Konsep Ekonomi Ibnu Taimiyah, penerjemah H. Anshari Thayib,

Surabaya, Bina Ilmu, 1997

Isnaini, Yusran, Hak Cipta dan Tantangannya di Era Cyber Space, Bogor: Ghalia

Indonesia, 2009

Kahar, Wahidul, Efektifitas Maslahah Mursalah dalam Penetapan Hukum Syara,

Jakarta: Thesis Pascasarjana UIN Syarif Hidayatullah, 2003

Khalaf, Abdul Wahab, Ilmu Ushul Fiqh, Bandung: Gema Risalah Press, 1996

Khallaf, Abdul Wahab, Ilmu Ushul al-fiqh, Kuwait: Dar al-Qolam, 1978

Kholis, Nur, Antisipasi Hukum Islam dalam Menjawab Problematika

Kontemporer (Kajian Terhadap Pemikiran Maslahah Mursalah Al-

Ghazali), hlm. 4 artikel http://nurkholis77.staff.uii.ac.id/antisipasi-hukum-

islam-dalam-menjawab-problematika-kontemporer/

74

Lubis, Suhrawardi K., Hukum Ekonomi Islam Jakarta: Sinar Grafika, 2004

Mamudji, Sri dan Soerjono Soekanto, Penelitian Hukum Normatif Suatu Tinjauan

Singkat, Jakarta: Raja Grafindo Persada, 1994

Marzuki, Peter Mahmud, Penelitian Hukum, Jakarta: Kencana Prenadamedia

Group, 2014

Masjfuk, Masail Fiqhiyah Kapita Selekta Hukum Islam, Jakarta: CV. Haji

Masagung, 1994

MUI, Fatwa MUNAS VII Majelis Ulama Indonesia, 2005

Muslich, Ahmad Wardi, Fiqh Muamalat, Jakarta: Amzah, 2010

Naskah Akademik Rancangan Undang-undang tentang Hak Cipta, Direktorat

Jendral Hak Kekayaan Intelektual Tahun 2013

OK. Saidin, Aspek Hukum Hak Kekayaan Intelektual, Jakarta: PT RajaGrafindo

Persada, edisi 5, 2006

Omar, TohaYahya, Hukum SeniMusik, SeniSuara, dan Seni Tari dalam Islam, cet.

ke-2, Jakarta: Penerbitwijaya, 1983

Qardhawi, Yusuf, Hadyu al-Islam:Fatawa Mu’ashirah, alih bahasa oleh al-Hamid

al-Husaini, cet. ke-1, Jakarta: Yayasan al-Hamidi, 1994

Qardhawi, Yusuf, Keluwesan dan Keluasan Syari’at Islam: Dalam Menghadapi

Perubahan Zaman, Jakarta: Pustaka Firdaus, 1996

Qardhawi, Yusuf, Peran Nilai dan Moral dalam Perekonomian Islam,

diterjemahkan oleh Didin Hafidhuddin dkk, Jakarta: Robbani Press, 2001

Romli, Muqaranah Mazahib fil Ushul, Jakarta: Gaya Media Pratama, 1999

Rosidi, Ajip, Undang-Undang Hak Cipta 1982, Pandangan Seorang Awam,

Jakarta: Djambatan, 1984

Salinan Undang-Undang Nomor 28 Tahun 2014 tentang Hak Cipta

Suntana, Ija, Politik Ekonomi Islam, Bandung: CV Pustaka Setia, 2010

Syafe’i, Rachmat, Ilmu Ushul Fiqih, Bandung: CV. Pustaka Setia, 1998

Syarifuddin, Amir, Ushul Fiqh Jilid 2, Jakarta:Kencana Prenada Media Group,

2008

75

Syatibi, Imam, Al-Muwafaqat Fi Ushul Al-Ahkam juz II, Beirut: Dar Al-Ma’rifat

Umar, Hasbi, Nalar Fiqh Kontemporer, Jakarta: Gaung Persada Press, 2007

Wahid, Marzuki dan Rumadi, Fikih Madzhab Negara Kritik Atas Politik Hukum

Islam di Indonesia, Yogyakarta: LkiS, 2001

Yanbu’ul Qur’an, Ma’had Tahfidh, Al-Quddus Al-Qur’an dan Terjemahannya

Kudus: CV. Mubarokatan Thoyyibah, 2014

Zahrah, Muhammad Abu, Tarikh al-Mazahib al-Islamiyah : Dar al Fikr al’Arabi

Zaid, Mustafa, al-Maslahah fi al-Fiqh al-Islami wa Najmu al-Din al-Thufi,

kaherah, dar al-Fikr al-Arabi, 1964

Zuhri, Saifudin, Ushul Fiqih Akal Sebagai Sumber Hukum Islam, Yogyakarta:

Pustaka Pelajar, 2011

http://laman.dgip.go.id/layanan-kekayaan-intelektual/hak-cipta/peraturan-terkait-

hc acess on 02 Oktober 2017

http://www.bekraf.go.id/profil/tugas acces on 03 June 2018 http://www.dgip.go.id/lembaga-manajemen-kolektif access on 02 Juni 2018