You Can Not Publish A Cover Song Without Permission!

Gen Halilintar, a family of YouTuber from Indonesia whose one of the members is Atta Halilintar, the eldest son with 39 million subscribers and making him become the second largest YouTuber in Southeast Asia, couldn’t get away from copyright infringement issues. At the end of December 2021, Gen Halilintar’s family was sentenced to pay USD 20.000 for covering the song ‘Lagi Syantik’ (being beautiful) without permission from PT. Nagaswara Publisherindo, as the plaintiff in this case. What really happened?

This case began three years ago when Gen Halilintar covered Siti Badriah’s song ‘Lagi Syantik’ on their YouTube account. However, Nagaswara as the music label that oversees the singer, Siti Badriah, filed a lawsuit related to alleged copyright infringement with verdict number 82/Pdt.Sus-Hak Cipta/2019/PN.Niaga.Jkt.Pst, but was rejected by the judges of the Central Jakarta District Court.

Nagaswara’s attorney explained that his party objected to several points of consideration by the panel of judges. Until finally the Supreme Court of Indonesia granted the Judicial Review filed by Nagaswara. The Supreme Court decided that Gen Halilintar was proven to have violated the copyright of the song ‘Lagi Syantik’ by Badriyah.

In its verdict, the Supreme Court sentenced Halilintar Anofial Said and Lenggogeni Faruk, Atta Halilintar’s parents, a fine of USD 20.000. The panel of judges considered that the defendants had modified the song ‘Lagi Syantik’ without permission and communicated it to Gen Halilintar’s YouTube account.

The Panel of Judges stated that the actions of the defendants who transformed the creation and communication of the work was infringement of copyright as referred to Article 9 section (1) paragraph d and h in conjunction with Article 9 section (2) Copyright Act Number 28 of 2014. In addition, the actions of the defendants who reproduce in electronic/digital form, publishing the work and distributing the results of infringement of copyright through social media is an infringement of copyright as regulated in Article 9 section (1) letter a, letter b, letter e Jo Article 9 section (3) in Copyright Act Number 28 of 2014.

It’s not just Gen Halilintar who stumbles over the problem of covering a song. Recently, Nadin Hamizah, a young musician from Indonesia who was hit by a copyright claim. The difference is, she has a copyright claim on her own song, how can that be?

This case started at the celebration of Mother’s Day last December, Nadin presented a collection of covers of the song “Bertaut” as a thank you note. Nadin collected the cover of the song “Bertaut” that she met on YouTube and made it into a compilation video which she uploaded on her personal YouTube account later on. However, behind that, there are obstacles when he will upload it. Nadin and his team received a notification that those who claimed the “Bertaut” video were not from Nadine’s side.

After being traced, Nadin and his team found the fact that Jane Flo’s name was a cover and pinned her name as an additional writer for the song “Bertaut”. Nadin suspected that Jane Flo had escaped because there was a gap. The song “Bertaut” covered by Jane Flo has a slightly different tempo from the original “Bertaut”, so it is counted as a different song by the system. Not only on YouTube, it turns out that on various platforms Jane Flo also mentions that “Bertaut” is her song,

How To Legally Cover Songs?

Covering songs of famous singers through social media is indeed rife. Through YouTube, people can show their work to many people. Not a few of them became famous, and even earned income from singing other people’s songs on the platform.

YouTube itself is a very popular video sharing site, with 1.86 billion users currently actively watching, loading and sharing video clips for free. But is it forbidden to cover the song and upload it to YouTube?

Therefore, we need to take a look about copyright which is regulated in Copyright Act No. 28 of 2014. Based on article number 1 section 1, Copyright is:

“The exclusive rights for the creator or the recipient the right to publish or reproduce the creations or give permission for it by not reducing the restrictions according to the laws and regulations that apply”

Copyright is an exclusive right which consists of moral rights and economic rights. Based on Article 5 Copyright Act No. 28 of 2014, moral rights are rights that are eternally attached to the Creator to:

  1. To include or not include his/her name on the copy in connection with the public use of the work;
  2. Using his alias or pseudonym;
  3. Changing his creation in accordance with the propriety in society;
  4. Changing the title and subtitle of the Creation, and;
  5. Defend their rights in the event of a distortion of the work, mutilation of the work, modification of the work, or anything that is detrimental to their honor or reputation.

Meanwhile, according to Article 8, economic rights are the exclusive rights of the Author or Copyright Holder to obtain economic benefits from the Works. Which included in the economic rights according to Article 9 Copyright Act are:

  1. Publishing Works;
  2. Reproduction of Works in all its forms;
  3. Translation of Works;
  4.  Adapting, arranging, or transforming the Works;
  5. Distribution of Works or copies thereof;
  6. Creation Show;
  7. Announcement of Works;
  8. Communication of Creation; and
  9. Lease of Creation.

Article 43 paragraph d of the Copyright Law states that the act of “creating and distributing Copyright content through non-commercial information and communication technology media and/or benefiting the Author or related parties, or the Author expressing no objection to the creation and dissemination” is not considered as copyright infringement.

If the covering of the song on YouTube is done for commercial purposes without the permission of the Creator or related parties object to the cover of the song, then the act of covering the song becomes copyright infringement. The commercial objective in question is to resell cover songs to the general public and earn economic profits. If this happens, the performer must have a license or permission for the song.

However, if covering of the song is not done for commercial purposes and the Author or related parties do not object to the cover of the song, then the act of covering the song is not an act of copyright infringement. People who cover songs must also respect the rights of the author, both the moral right to include the names of the creator and singer, as well as their economic rights.

It is difficult for cover actors if every time they want to cover a song, they have to ask permission personally to the creator or related parties. Thanks to technological advances, YouTube as a social media platform already has a feature that can detect songs that have the same tone. If detected, YouTube will automatically divide the income of the performer on the cover of the song to the original singer. YouTube will not hesitate to block videos that are considered copyright infringement.

Then, how about legal protection for copyright holders and related rights holders if copyright infringement happened? Legal protection can be done in two ways, namely:

In civil terms: rights holders who feel aggrieved can ask for compensation through a civil lawsuit to the Commercial Court.

Criminal terms: rights holders who feel that their rights have been violated can carry out criminal charges if the violation meets the criteria stated in these two articles in Copyright Act as follows:

  1. Article 113 paragraph (2) Copyright Act: any person who without rights and/or without permission of the Author or Copyright holder violates the economic rights of the Author as referred to in Article 9 paragraph (1) letter c, letter d, letter f, and / or letter h for commercial use shall be sentenced to a maximum imprisonment of 3 (three) years and/or a maximum fine of Rp. 500,000,000.00 (five hundred million rupiahs).
  2. Article 25 Information and Electronic Transactions Act Number 11 of 2008: Electronic Information and/or Electronic Documents compiled into intellectual works, internet sites, and intellectual works contained in them are protected as Property Rights Intellectuals based on the provisions of the Laws and Regulations.

If Partners need further information regarding Copyright recordation and protection, please do not hesitate to contact us via social media or email marketing@ambadar.co.id.

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