Analisis Perbandingan Kepentingan yang Wajar (Doktrin Fair Use) dengan Lisensi Creative Commons terhadap Penggunaan secara Komersial Karya Cipta (Studi pada Negara Indonesia dengan Amerika Serikat)

Abstract

In the Indonesia Copyright Law (UUHC), commercial use of a work is an infringement of copyright. The Fair Use provision in the national copyright law, known as ‘Kepentingan Yang Wajar’, also opposes the commercial use of the work as referred to in Article 43 and Article 44 of the Republic Indonesia Number 28 of 2014 of C, especially against works whose dissemination uses technology and internet media. Meanwhile, in the digital era, social media has a great influence on commercial activities, so that commercial use of creations is inevitable. Creative Commons licences have the same concept as Fair Use, regarding the limitation of the creator's exclusive rights. However, both have different rules in viewing commercial use. The research was conducted using the juridical-normative method by referring to secondary data in the form of primary, secondary, and tertiary legal materials, with a literature approach and comparative approach. Techniques and data collection used are in the form of literature studies and interviews with sources. Data analysis uses qualitative analysis with deductive inference method for drawing conclusions. The results showed that the Kepentingan Yang Wajar contained in Chapter VI Copyright Restrictions in Article 43- Article 51 of the national copyright law does not allow commercial use of copyrighted works unless the user requests prior permission from the creator and the creator does not object to such use. Commercial use can be done by entering into a licence agreement with the creator/copyright holder of the work to be used. The exception of commercial use within the limits of Kepentingan Yang Wajar in the national copyright law results in any commercial use of copyrighted works without permission cannot be considered a defence of Kepentingan Yang Wajar (Fair Use). Creative Commons licences offer three of the licences that allow commercial use of copyrighted works without granting royalties and requesting permission from the creator. Although they are licences, commercial use is allowed to the user by the creator without payment of royalties, provided that in their use the user complies with all the conditions contained in each Creative Commons licences.