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Title: Transplantation of Foreign Law into Indonesian Copyright Law: The Victory of Capitalism Ideology on Pancasila Ideology
Authors: Saidin, O K
Keywords: Transplantation;Capitalistic Ideology;Pancasila Ideology;WTO;TRIPS Agreement;Grundnorm;Weltanschung;Copyright;Cinematographic rights
Issue Date: Jul-2015
Publisher: NISCAIR-CSIR, India
Abstract:   The Journey of Indonesian history has 350 years experience under the imperialism of Netherland and Japan until the era of post-independence which was still under the shadow of the developed countries. The Indonesia became more and more dependable on the foreign countries which brought influence to its political choice in regulating the Copyright Law in the following days. Indonesian copyright protection model which economic goal firstly based on the country’s Pancasila philosophy, evidently must subject to the will of the era that move towards liberal-capitalist. This era is no longer taking side to Indonesian independence goal to realize law and economic development based on Pancasila, especially the first, fourth, and fifth sila (Principle). The goal of law and economic development in Indonesia, regulated under the paradigm of democratic economy is to realize prosperous and equitable society based on Indonesian religious culture principle that can no longer be realized.

  Pancasila as the basis in forming legal norms in Indonesia functioned as the grundnorm which means that all the legal norms must be convenient and not to contradict the principles of the basic state philosophy of Pancasila. But the battle of foreign ideology in legal political choice through transplantation policy, did not manage to give the victory to Pancasila as the country’s ideology, but to give the victory to the foreign capitalistic ideology instead. It resulted with the non-enforcement of Copyright Law. Borrowing the term used by Van Vollenhoven – the rejection on Indonesian Copyright Law was not because of the weak legal sanction, but due to the failure in the law enforcement, because the legal substance regulated in copyright laws that ever enacted in Indonesia, have never been part of their law; never been part of the nation’s soul, or have never been the law of Indonesian society, but it is a law that was transplanted, and forced to be enforced in Indonesia. One law that is originated from capitalistic ideology, not originated from Pancasila ideology. This is the end of the ideological battle in choosing the formulation policy of Indonesian Copyright Law. It can also be said that it is the Victory of Capitalistic Ideology on Pancasila Ideology as the end of Pancasila Ideology.
Page(s): 230-249
ISSN: 0975-1076 (Online); 0971-7544 (Print)
Appears in Collections:JIPR Vol.20(4) [July 2015]

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