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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
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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 : [email protected]
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
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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.
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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.
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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.
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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
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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
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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
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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.
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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?
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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?
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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.
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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
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