Microsoft Word - 18091-ed.docx


Indonesian Journal of Law and Society (2020) 1:2 101-124 
ISSN 2722-4074 | DOI: 10.19184/ijls.v1i2.18091 
Published by the University of Jember, Indonesia 
Available online 30 September 2020 
 
 
 

* Corresponding authors’ e-mail: nadiyanurmaya25@gmail.com 
 

Fair Use Doctrine in Photocopying Books for 
Educational Purposes: A Study of Copyright Acts 
in Indonesia and the United States 
 

Nadiya Nurmaya* 
University of Jember, Indonesia 
 
Mardi Handono 
University of Jember, Indonesia 
 
Galuh Puspaningrum 
University of Jember, Indonesia 
 
ABSTRACT. Globalization has offered a multitude of opportunities and challenges, mainly 
when it deals with copyright. The scope of copyright has been broad, encompassing various 
aspects of life, especially in literature and education. This study aims to analyze Indonesia's 
copyright issues, particularly regarding the reproduction of books deemed to have lesser protection 
for authors, dealing with the fair use doctrine. This doctrine considers that work is allowed to a 
limited extent for use by other parties without the creator or copyright holder's permission to keep 
it fair. This fair use doctrine permits limited and fair use of literary works for specific purposes 
without royalty payments and the author's consent. Given the author's more protection, this study 
then displays a comparative analysis of the U.S. framework on the Copyright Act portrayed into 
two main discussions. First, this study will discuss photocopying for educational purposes from 
the lens of Indonesia's Copyright Act. Second, this study considers the possible adjustment to 
adopt the so-called future concept of restrictions for educational purposes from the U.S. States 
Copyright Act 1976. 

KEYWORDS: Fair Use Doctrine, Copyright Act, Copyright for Educational Purposes. 

 

 

 
 
Copyright © 2020 by Author(s) 
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International 
License. All writings published in this journal are personal views of the authors and do not 

represent the views of this journal and the author's affiliated institutions 

Submitted: 11/06/2020   Reviewed: 12/06/2020   Revised: 15/07/2020   Accepted: 20/07/2020 



102 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 

I. INTRODUCTION 

Copyright’s dramatic legal development started from establishing the Berne 
Convention for Protection of Literary and Artistic Works as the first 
convention in this field. The minimum obligations of convention member 
countries to protect literary and artistic works creators are emphasized in the 
Berne Convention’s main provisions. The Berne Convention then became a 
reference to the Agreement on Trade-Related Aspects of Intellectual 
Property Rights (TRIPs Agreement) and World Intellectual Property 
Organization Copyright Treaty 1996 (WIPO Copyright Treaty). One of its 
kinds is the book as protected by international agreement and national 
legislation such as Indonesia’s Copyright Act 2014 and the U.S. Copyright 
Act 1976. 

The consequence of this arrangement that includes the book as part of 
copyright aims to protect the author from potential infringements from other 
authors, like reproducing the text without permission from the book's 
author. It asserts that other parties may only reproduce with the consent of 
the author. However, to thrive in encouraging science and creativity and 
balance the interests of authors and public interests in education and 
research, the Berne Convention sets the procedure of limitation or 
reproduction as outlined in Article 9. Also, the Berne Convention refers to 
Article 13 TRIPs Agreement regarding exception, which displays a three-
step test.  

The TRIPs Agreement as a continuation of the Berne Convention briefly 
stipulates that member countries must comply with the provisions from 
Articles 1 to 21 the Berne Convention. These mandatory provisions are 
subsequently contained in Article 9 (1) TRIPs Agreement. An exception also 
accompanies this article to the right and obligation referencing to implement 
Article 6. The Berne Convention and the TRIPs Agreement provide 
leniency to formulate their laws and regulations while still referring to the 
Berne Convention and the TRIPs Agreement because of these rules' binding 
nature. 

Indonesia then ratified the Berne Convention and the TRIPs Agreement. 
As a country with a civil law tradition, the exception to copyright in 



103 | Indonesian Journal of Law and Society 

 

Indonesia is copyright limitation. This term is a concept in the civil law 
system that starts point for copyright protection given to a copyrighted work 
or object. Restrictions in the copyright act aim to regulate industrialization 
and commercial trade practices as well as fair competition. One of the 
limitations of copyright is for educational purposes. Since the early 
development of the copyright act, the importance of educational purposes 
restrictions has been recognized. Currently, restrictions are closely related to 
intergenerational equality for future generations' benefit as two sides of the 
coin, so-called today's users are authors or writers’ tomorrow. 

This limitation is often questioned, especially by authors, against 
photocopying books for educational purposes excepted in Article 44 (1) of 
the Indonesia Copyright Act. This provision is more directed towards 
qualitative limitations. This is because the interest of education as one of the 
exceptions to copyright in the article does not explain the definitions, criteria, 
and limitations allowed to use a work for educational interests. These 
provisions do not explain the meaning or criteria of educational interests, 
either for educational purposes of a commercial or non-commercial nature 
or educational purposes for private or public use. With a note, even though 
it is for personal and non-commercial purposes, it still cannot harm the 
creator or copyright holder. 

The absence of a limit on the number of works allowed or reproduced in 
books creates confusion in the community. For example, it is the case of a 
student photocopying book's entire contents, including the most substantial 
part of the book. However, they still include the author's name to be used as 
learning for educational purposes. It has become prevalent because there is 
no explicit limit on how much reproduction can be done not to harm the 
author. Unfortunately, regarding this attitude, there remains no affirmation 
that it goes beyond the meaning of the purpose of education itself. As a 
result, there are not only one or two who carry out this act of reproduction. 
Many of them still do not understand the meaning of appreciating work. It 
lasts to assume that reproducing books for educational purposes is a common 
thing. In contrast, it harms the author’s economic interests. 



104 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
Given such a prevalent attitude, Indonesia Copyright Act 2014 needs to refer 
to the U.S. Copyright Act 1976. In the context, the United States' policy in 
this field refers to international agreements, despite its common law 
tradition. As a result, the term given to the exception of copyright is fair use. 
This doctrine considers that work is allowed to a limited extent for use by 
other parties without the creator or copyright holder's permission to keep it 
fair. This fair use doctrine permits limited and fair use of literary works for 
specific purposes without royalty payments and the author's consent. These 
objectives are set in Section 107 Copyright Act 1976, which explicitly 
parameters regarding the limits to determine fair use are apparent. There are 
four factors in it. First, the purpose and character of the use, including 
whether the use is commercial or for non-profit educational purposes. 
Second, the nature of work. Third, the amount and substance of the portion 
used. Fourth, the economic consequences of use. To determine whether a 
work is a fair use, these four factors are interrelated and move simultaneously. 

The regulation regarding book reproduction in the U.S. is quite detailed and 
strict. This precise and strict regulation shows a higher awareness of the 
importance of copyright in the U.S. society responded by the government to 
provide a legal basis for protection. Thus, Indonesia’s current challenges and 
opportunities can refer to the existing U.S. Copyright Act even though both 
countries have different legal systems and traditions. To be sure, it is not an 
excuse for creating a dichotomy between the two. According to Jan Michiel 
Otto, the different legal systems between common and civil laws have 
increasingly become smaller. Therefore, apart from differences in the legal 
system, the legal vacuum against copyright restrictions in Indonesia, as 
written in Article 44 of the Copyright Act, needs to address, and the 
comparative study has been inevitable. 

There are several previous studies discussed the doctrine of fair use. Firstly, 
photocopying copyrighted works for educational purposes is written by 
Dharam Veer Singh and Pankaj Kumar at the National Law Institute 
University, Bhopal.1 The paper analyzes whether photocopying of 

 
1  Dharam Veer Singh & Pankaj Kumar, “Photocopying of Copyrighted Works for 

Educational Purposes: Does it Constitute Fair Use?” (2005) JIPR Vol 101 January 
2005, online: <http://nopr.niscair.res.in/handle/123456789/3611. 



105 | Indonesian Journal of Law and Society 

 

copyrighted works for an educational purpose constitutes fair use.2 The 
statutory provisions on the issue in different countries have been enlisted.3 
The U.S. law has been exhaustively dealt with, followed by the guidelines as 
prescribed by the government body under the U.S. congressional mandate.4 
A case analysis has been done to ascertain the courts' approach in applying 
the statutory provisions to the instances of making multiple copies of 
copyrighted works for educational purposes. Fair use under the U.S. statute 
depends on the four factors of purpose, nature, amount, and effect. The 
guidelines, however, make fair use dependent on brevity, spontaneity, and 
cumulative effect.5 In the last part of the paper, the prevailing U.S. law is 
compared with Indian law.6 

Secondly, the paper analyses the Indonesian Copyright Act 2002, later 
amended to Law Number 28/2014 that remains a lack of strict regulation of 
copyright policy in Indonesia. The occurrence of emptiness law concerning 
the principle of fair use of some books' policymaking copies in library college. 
The purpose of this research is to analyze the form of regulation law on the 
principle of fair use in copyright associated with the policy of making copies 
of books in a library under the provisions of Indonesian Copyright and the 
Australian Copyright Acts. 

Third, the implication of the fair use doctrine in Indonesia. This article 
discusses fair use (Article 43-49 Act 28/2014) of lecturers and researchers' 
scientific work. This legal discourse in the field of copyright law will be 
performed through doctrinal research. The critical finding states that the fair 
use doctrine allows scholars to utilize copyright-protected work from others 
under scientific or educational purposes – without obtaining prior consent or 
license. Nonetheless, the user of copyright-protected works must pay 
attention to the reasonable interest of the copyright holder, the meaning of 
which is left to legal practice. Fourth, the fair use doctrine in its history, 
application, and implications examines the fair use doctrine's understanding 

 
2  Ibid. 
3  Ibid. 
4  Ibid. 
5  Ibid. 
6  Ibid. 



106 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
to become second nature. To this end, the author summarizes the salient 
points of law and fair use practice and demonstrates. In short, this paper 
examines whether the fair use doctrine can inform the teaching of writing in 
digital contexts. As teachers, researchers, and experts of writing, the 
discourse of fair use must be considered in addition to the discourse of 
plagiarism. 

This study aims to analyze Indonesia's copyright issues, particularly 
regarding the reproduction of books deemed to have lesser protection for 
authors. Given the author's more protection, this study displays a 
comparative analysis of the U.S. framework on the Copyright Act portrayed 
into two main discussions. First, this study will discuss photocopying for 
educational purposes from the lens of Indonesia’s Copyright Act. Second, 
this study considers the possible adjustment to adopt the so-called future 
concept of restrictions for educational purposes from the U.S. Copyright Act 
1976. 

  

II. FAIR USE DOCTRINE IN THE RESTRICTION OF BOOK 
PHOTOCOPY FOR EDUCATION: AN ANALYSIS 

A. Indonesia's Copyright Act 2014 

International agreements such as the Berne Convention, the TRIPs 
Agreement, and the WIPO Copyright Treaty do not explicitly explain the 
definition of creation and describes the types of creative works on creation 
only. This creative work is a type of work that is protected by copyright. 
Initially, copyright was concerned only with preventing the legal, physical 
use of printed material, but it has changed with technological development. 
This affects the development of types of creative works protected by 
copyright. 

Article 2 the Berne Convention describes the types of works that are 
protected. However, the types of works mentioned are the minimum types 
of works that must be protected by copyright provisions in a country. 
However, the Berne Convention states that the extent to which each 



107 | Indonesian Journal of Law and Society 

 

country's laws and regulations are applied to copyright provisions in the 
matter of the state itself.7 It asserts that each country has its authority in 
determining the implementation of these copyright arrangements. This is 
because both by adoption and using transplantation, a government can adopt 
an international scale regulation. One type of creation mentioned in Article 
2 Berne Convention is a book. 

The TRIPs Agreement explains that member countries must comply with 
the provisions contained in Article 1 to 21 of the Berne Convention, as stated 
in Article 9 (1) TRIPs Agreement. An exception also accompanies this 
article to the obligation to implement Article 6 and the rights derived from 
that article. In the TRIPs Agreement as a continuation of the Berne 
Convention, the arrangements regarding the types of works protected by 
copyright have no difference with those stipulated in the Berne Convention. 
However, only the types of covered works are further expanded, as contained 
in Article 10  TRIPs Agreement includes computer programs, compilation 
of data, both digital and other forms. There was a previous exception in 
Article 9 (2) TRIPs Agreement that the copyright protection is explicitly 
extended regarding expressions (fixation), not ideas, procedures, operating 
methods, or mathematical concepts. 

Article 1 the Indonesian Copyright Act 2014 explains that creation is any 
copyrighted work in science, art and literature produced based on inspiration, 
ability, thought, imagination, talent, skill, or expertise expressed in tangible 
form. Copyright protection applies automatically when a work copyrightable 
is made. The Copyright Act requires fixation, a fundamental concept of 
copyright, which only protects the manifestation of work, so it does not have 
to do with the substance.8 The standards for protecting a new work based on 
this principle are relatively easy to meet regarding originality. Even new 
works involving only the most superficial variations of existing work can find 
protection. However, the creation must still be original, not plagiarism over 
other creations. 

 
7  Desy Nurhayati, Tinjauan Hukum Hak Cipta Terhadap Aspek Penggunaan Komersial 

Terhadap Ciptaan Yang Menggunakan Lisensi Creative Commons (Depok: Skripsi 
Fakultas Hukum Universitas Indonesia, 2011) at 51. 

8   Eddy Damian, Hukum Hak Cipta (Bandung: Alumni, 2009) at 98. 



108 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
Referring to this Copyright Act, a copyrighted work must have a distinctive 
form, be personal, and show originality as a creation that was born based on 
ability, creativity, or expertise so that the work can be seen, read, or heard.9 
This means that copyright does not only protect ideas. Works protected by 
the Copyright Act are in three areas, namely art, literature and science.10 The 
three are detailed again in Article 40 of the Copyright Act, where one of the 
protected works is a book. It can be seen that a book is one of the creations 
that have a unique space in copyright protection, both in the Berne 
Convention, the TRIPs Agreement, the WIPO Copyright Treaty, and the 
Copyright Act. Thus, a book is an object of the copyright that has been 
recognized by all copyright regulations worldwide. This is because books are 
the intellectual property of a creator, which, apart from having an economic 
meaning for those who exploit them, also has an essential purpose for a 
nation's spiritual and material development.11 

Books are literary expressions; what is essential to consider that the book as 
creation is that what is protected by copyright is the right, not the object. 
This means that what is protected by copyright is the right to reproduce 
books.12 Apart from adhering to the principle of fixation, books protected by 
copyright must also fulfill the declaration of originality (not an imitation of 
other people's work). Work as a whole is not an imitation of another author's 
written work. However, it must come from his work even though in creation 
in the form of a book, some parts may imitate or be inspired by other authors' 
writings. That is not including copyright infringement because it is not a 
copy in its entirety, but in part a sentence by inserting a comment according 
to the author's thought. 

Books receive copyright protection as described in Article 40 of the 
Copyright Act, which avoids acts of copyright infringement by other parties 

 
9   General Explanation Act No. 28/2014 on Copyright. 
10   Budi Agus Riswandi dan M. Syamsudin, Hak Kekayaan Intelektual dan Budaya Hukum 

(Jakarta: Raja Grafindo Persada, 2004) at 10. 
11   Imam Sya'roni Dziya' Urrokhman, Perlindungan Hukum Karya Cipta Buku Ditinjau 

Dari Undang-Undang Nomor 19 Tahun 2002 (Semarang: Tesis Magister Universitas 
Diponegoro) at 8. 

12   Ok Saidin, Aspek Hukum Hak Kekayaan Intelektual (Jakarta: Raja Grafindo Persada, 
1995) at 55. 



109 | Indonesian Journal of Law and Society 

 

such as photocopying without permission from the author. Reproduction can 
be defined as multiplication, namely making something the same or similar, 
whether using the same material or not, by changing the reproduced creation 
or not changing the medium and type of creation. The right to reproduce a 
work in the form of a book or written work is part of the creator's rights.13 
Photocopying work, such as a book or other written work, is a form of 
copyright infringement if done without the author's permission. It may be 
subject to punishment as set in Article 113. However, the Berne Convention 
then regulates copyright restrictions to recognize the need to promote 
science and creativity and balance creators and public interests, especially in 
education and research. 

The Berne Convention, as the first convention resulted in an international 
agreement in the copyright, regulates the restrictions contained in Article 9 
Berne Convention. The restrictions are set in Articles 10 and 13 of the Berne 
Convention that outline member countries through their national laws and 
regulations can determine the limits of these works' protection. In practice, 
these restrictions are related to de minimis doctrine or de minor 
reservations.14 It asserts that the minimal use of the work or the minimum 
requirements does not violate the author's exclusive rights based on this 
doctrine. 

This provision contains the right of reproduction, which can be categorized 
as an article regulating book reproduction. The core of the coverage included 
in Article 9 of the Berne Convention is known as exploitation types. Copy 
of work, books, and other written assignments must not conflict with the 
author's normal exploitation. This article explains the complete protection 
of the creator or copyright holder to permit other parties who need the right 
to reproduce their works. An author is also given the right to prohibit other 
parties from reproducing a work, including written works or books. This 
propagation can be done in various forms or methods. For example, the 
reproduction of books using a photocopier or digitally.  

 
13   Article 9 (1) Act No. 28/2014 on Copyright. 
14   Rahmi Jened, Hukum Hak Cipta (Copyright Law) (Bandung: Citra Aditya Bakti, 2014) 

at 162. 



110 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
Berne Convention is the subject of referral arrangements in Article 13 of the 
TRIPs Agreement. It deals with limitations and exceptions that set the 
three-step test to examine whether such restrictions are not abused. The 
main objective is to provide a balance between entitlements exclusive and 
limitation of exclusive rights.15  This three-step test justifies in line with the 
teleological argument because this test lies as a boundary between the 
author's exclusive rights and the privileges to use.16 The test includes three 
incremental steps, namely, basic rules: limitation must be certain exceptional 
cases, the first condition delimiting the basic rule: no conflict with a standard 
exploitation-compulsory license impossible, and the second condition 
delimiting the basic rule: no unreasonable prejudice to legitimate interests-
compulsory possible permits.17 The first step states that restrictions are 
allowed for some instances, one of which is related to photocopying cases for 
educational purposes. The second step is that certain exceptional 
circumstances stated in the first step must not conflict with the fair use of a 
work. The third step is if using someone else's work without permission but 
not for commercial purposes does not reduce legitimate interest authors' 
prejudice. 

As a legal consequence of the Berne Convention and the TRIPs Agreement's 
ratification, Indonesia is obliged to comply with the convention's rules. It is 
allowed to compile its national laws and regulations regarding copyright. 
This is because each convention member country has a different culture from 
one another. In addressing the protection of intellectual property rights, it is 
not the same.  

The Copyright Act does not provide explicit regulations on the procedure 
for reproducing a work in the form of books or other written works. This 
does not mean that other parties who wish to reproduce books cannot take a 
reference. Article 1 of the Copyright Act states that copyright is an exclusive 
right for a creator that automatically arises based on the declarative principle 
after work is manifested in a tangible form without reducing restrictions on 
the provisions of laws and regulations. The exclusive right in question is a 

 
15   Ibid at 157. 
16  Ibid. 
17  Ibid. 



111 | Indonesian Journal of Law and Society 

 

right reserved only for the creator. No other party can take advantage of the 
right without the author's permission; copyright that is not an author has a 
part of the exclusive right in the form of economic rights.18 However, due to 
the consequences of the ratification of international treaties, as previously 
explained, Indonesia also regulates copyright exceptions because the 
implementation of exclusive rights not only considers the protection of the 
creator but also takes into account the development of science and creativity. 
Thus, restrictions aim to balance the interests of creators or copyright holders 
with public interests. 

Indonesia is a country that adheres to civil law.  The civil law is not purely 
derived from Indonesian society. The legal system that is considered native 
to the Indonesian people is customary law and religious law. However, when 
Dutch colonized Dutch Indies, later so-called Indonesia, embedding civil 
law for three centuries in the administration, this system finally influenced 
and participated in this archipelagic government. After Indonesia started 
decolonization, it remains to apply most of the Dutch's general rules despite 
the recognition of adat laws and Islamic legal tradition. Over time, in its 
implementation, Indonesia is no longer fully implementing civil law. 

Civil law is a tradition inherited from Roman law dating back to 450 BC. 
This tradition develops the concept of right, ethics, and state, which is 
essentially the existence of personality, influenced by GW Friedrich Hegel.19 
Civil law's legal tradition is called natural rights justification, which views 
copyright as the creators' fundamental rights20 The author's right system as a 
system is a reward reflected in this legal tradition. The term limitation is a 
conception of civil law.21 This is because the starting point of copyright 
protection is given to the creator as the copyright subject with personal 
intellectual creation. The creator's exclusive right means that no other person 
may exercise the right, except with the creator's permission. The sect adhered 
to by the state civil law adheres to the philosophy that copyright is considered 
a natural right owned by the creator.  

 
18  Explanation of Article 4 Act No. 28/2014 on Copyright. 
19  Rahmi Jened, supra note 14.  
20  Ibid. 
21  Ibid. 



112 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
The limitations in the Copyright Act are regulated in Article 43 to Article 
51. Article 44 (1) of the Copyright Act aims that the exclusive rights owned 
by the creators prevent exploitation of copyright by others for commercial 
purposes. This limitation is also designed to regulate industrialization and 
commercial trade practices, and the existence of fair competition.22 So, there 
is no violation if other parties use a work for fair play. 

Regarding adopting, rules contained in international treaties, not merely all 
rules are adopted into national legislation. It indicates that each country has 
its interests in its laws and regulations, particularly in protecting its 
intellectual property. It is impossible for Indonesia, as it ratified various 
international treaties on intellectual property rights, has contradictions in 
applying the adoption results into national legislation. It looks like it is about 
copyright restrictions for educational purposes. According to the Copyright 
Act, this act is not considered a copyright infringement, as provided that the 
source is included and does not harm the creator.23 

Since the early development of copyright law, the importance of limiting it 
for educational purposes has been recognized. The limitation is currently 
closely related to intergenerational equity for generations' benefit to come as 
the two sides of coins are among today's users24 This means that users of 
work intend this limitation to appreciate a work more so that later writers 
feel that their work is appreciated and gives birth to new writers. When a 
country enjoys a creation, this will also impact the country's economy. In the 
form of a book, what has been created by the author later, the honorarium 
will be given to the author or author and given to the state as taxes. 

The rules regarding copyright restrictions for educational purposes are 
contained in Article 44 (1) letter a, which is a qualitative article. Before the 
current Copyright Act was applied, the rules regarding copyright restrictions 
were still quantitative. The benchmark for how much other parties can use 
work is evident, namely as much as 10 percent of each work's unanimity on 
the condition that the source must be fully identified.25 The difficulty in 

 
22  Ibid at 24. 
23  Article 44 (1) Act No. 28/2014 on Copyright. 
24  Rahmi Jened, supra note 14 at 164. 
25  Article 15 Act No. 6/1982 on Copyright. 



113 | Indonesian Journal of Law and Society 

 

determining a percentage of a work of art results in objections regarding the 
old provisions.  The question of what if someone uses or reproduces someone 
else's written work because educational interests are less than 10 percent. 
Still, it is a substantial part.26 Thus, this reason is what makes the change 
from a quantitative article to a qualitative one. 

The criterion for books can be photocopied for educational purposes in a 
textbook. The act of photocopying books for the sake of education when 
viewed from the perspective of the current Copyright Act by referring to 
Article 44 (1) letter a, then this action can be said to be a copyright violation 
and can also be said not to violate rights create. This is because the article 
only states, "... copyright infringement is not considered if the source is fully 
stated for educational purposes without prejudice to the reasonable interests 
of the creator." This means that this article is still qualitative because it does 
not explain how much other parties can say that it is not detrimental to the 
creator. Also, the definition and characteristics of educational interests 
themselves are not explained in detail in the Copyright Act to be fair use. 
Whether it is for educational purposes of a commercial or non-commercial 
nature, academic interests for private or public use, with a note, even though 
it is for educational purposes used for personal and non-commercial 
purposes, still must pay attention the reasonable interests of the creator. 

When other parties as users make copies of a book or other written work, as 
often encountered in educational institutions (schools and universities), 
students reproduce texts as a whole, from cover to section, and keep the 
author's name used teaching material personal use. Unfortunately, regarding 
this action, there is still no affirmation that it goes beyond the meaning of 
the purpose of education itself. As a result, there are not only one or two who 
carry out this act of reproduction; many still do not understand the meaning 
of appreciating creation and consider the act of reproducing books for 
educational purposes. Every thought of the community, especially students 
and academics, will impact the creator's economic interests. Therefore, the 
reproduction of work for education must still consider the creator's financial 
interests. Do not let the economic benefits that should be felt by the creators 

 
26  Rahmi Jened, supra note 14 at 165. 



114 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
completely disappear with the existence of regulations regarding copyright 
restrictions.  

B. The United States’ Copyright Act 1976 

Provisions regarding copyright exceptions are to encourage the development 
of science and creativity and balance creators' interests and the public's 
interests. This provision is then adopted into copyright law in Indonesia. 
However, there is a contradiction about these provisions stated in the 
Copyright Act regarding copyright limitation for educational purposes. The 
article does not explain how many other parties can use or reproduce a work 
that is not considered detrimental to the creator. Therefore, Indonesia also 
needs to refer to book reproduction guidelines adopted by common law 
countries such as the U.S., which already have regulations on copyright. Law 
enforcement in the U.S. is more advanced than in Indonesia. 

The United States follows the common law tradition influenced by John 
Locke, an English philosopher. His claim deals with the concept of property 
related to human rights with the statement of life, freedom, and ownership.27 
Locke believed that man should be rewarded for his labor, regardless of 
form.28 The tradition is a common law system called "functionalist 
justification," as an incentive system that defines copyright protection as an 
economic instrument to increase knowledge and support socio-economic 
development.29 As a copyright system, the object of copyright or creation 
(copyrighted work) is the starting point of protection. Access to fair use of a 
work is granted to the public.30 This has led to the Common Law giving the 
term fair use or fair dealing. About protected works, apply restricted rights 
that the community is not allowed, except for fair use.  

If copyright is a legal metaphysics, fair use is semiotic. The term fair use is 
known in the U.S. Copyright Act 1976 as a norm that limits authors' 
exclusive rights. Compared to all existing provisions in copyright, the 
doctrine of fair use is often difficult to understand. This doctrine stipulates 

 
27  Ibid. 
28  Ibid.  
29  Ibid.  
30  Ibid.  



115 | Indonesian Journal of Law and Society 

 

that work is allowed on a limited basis for use by another party without the 
creator or copyright holder's permission to retain the nature of a fair.31 Even 
so, the U.S. Copyright Act 1976, which applies in the United States, does 
not clearly define fair use. This regulation only states that the doctrine of fair 
use is a defense against claims for copyright infringement.32  

The U.S. Copyright Act 1976 states that criticism, commentary on news 
reports, teaching (including reproduction of copies for classroom use), 
science, or research are types of purposes that can justify examining fair use.33 
The rules that have been mentioned above also provide general guidelines 
for determining fair use whether or not. These guidelines are set out in 
Section 107 of the Copyright Act 1976 (Limitations on Exclusive Rights: 
Fair Use). The fair use doctrine involves balancing between a set of variables 
that determines whether other interests can overrule the creator's rights. 
Section 107 of the 1976 Copyright Act explicitly identifies four factors to 
determine fair use, including the purpose and character of the use, the nature 
of the work, the proportion or share took, and economic consequences. 

Other literature also adds two guidelines apart from the four factors above, 
namely the intent and reasons of other parties in using the work. The 
connection with this is if the other party does not have a reason for profit; 
for example, his action is carried out solely for the benefit of education, 
personal interest. It cannot qualify as a commercial profit-seeking interest.34 
The doctrine considers several different interests so that it is a complex issue 
in copyright law institutions.35 Therefore, the other party cannot necessarily 
argue that their act of reproducing a work has been excluded by fair use. As 
the party with authority to determine fair use interest or not, the court has a 
vital role in answering this matter.  

In this section, four factors are described in Section 107 of the Copyright 

 
31  Eddy Damian, supra note 8 at 120-121.  
32  Arthur R. Miller and Michael H. Davis, Intellectual Property: Patents, Trademark, and 

Copyright, in A Nutshell, (Minnesota: West Publishing, 1990) at 348.  
33  Section 107 U.S. Copyright Act 1976. 
34 C. Anwar,  Hak Cipta, Pelanggaran Hak Cipta, dan Perundang-undangan Baru Hak 

Cipta di Indonesia (Jakarta: Novindo Pustaka Mandiri, 1999) at 29.  
35  Ibid.  



116 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
Act 1976 to determine whether the use of a work is fair use or not. The first 
is the purpose and character, including its commercial nature. This purpose 
and character is a dualistic concept of commercial use versus non-commercial 
use and public use versus private use. The dynamism of fair use involves 
interrelated factors rather than determining factors. However, no doctrine 
mandates solely that non-commercial purposes and personal use are 
automatically fair use. However, the non-commercial nature of the use and 
its character are very persuasive in determining fair use or not in this use.36 

The U.S. Copyright Act 1976 does not separate the terms non-profit and 
education; it is not clear that fair use for educational purposes should always 
be non-profit or not.37 Simultaneously, it is not surprising that when 
elements of educational objectives and non-profit institutions meet in the 
same defense, the result is not necessarily fair use. This could be due to the 
creation's nature, namely the text whose market is expected in an educational 
environment. The substantiality of its reproduction far exceeds the other 
party's non-profit educational goals.38 In conclusion, perhaps one accurate 
way of highlighting this purpose and character is by testing a profit motive 
that almost certainly rejects fair use. Whereas what is said to be in the 
interests of education, criticism, or others, the court views it as chiseling for 
personal profit.39 Courts are even more supportive of uses that are 
transformative than those that are reproductive (resembling the original or 
only in photocopy). This means that when a copyrighted work is changed 
into something new or a new utility, it is possible to say it is fair use. 

Second, namely the nature of creation, the creation's nature can be measured 
through the creativity and originality invested by the creator. A work that 
describes two characteristics (creativity and originality) that deserve 
consideration has a smaller chance of fair use than with a mass-produced 
with minimal creativity and originality levels. This statement's purpose is 
that creation with high creativity and originality is used by someone who is 
not entitled to make it difficult for that party to fight the lawsuit on the 

 
36  Arthur R. Miller and Michael H. Davis, supra note 32 at 352.   
37  Ibid.  
38  Ibid at 353-354.  
39  Ibid at 353.  



117 | Indonesian Journal of Law and Society 

 

grounds of fair use. Nevertheless, it is different if creation has minimal 
creativity and originality and is also created by many people. This is 
undoubtedly easier for someone who uses the work to defend other parties' 
claims on the grounds of fair use. 

The nature of creation can be measured through the creativity and originality 
invested by the creator.40 Suppose the nature of work is inevitable, and 
another party's use lies in the same area as the work's potential benefits. In 
that case, this does not support fair use.41 For example, work is the creation 
of education. The market intended for using the work by other parties is also 
in education. Thus, this is not legitimate to be called fair use. Fair use can 
also be used for both published and unpublished works.42 It is challenging to 
prove fair use in the use of works that have not been published, such as 
documents or personal letters unless unethical or illegal practices appear in 
work. This is due to the inherent right to first publication on works that have 
not been published. The nature of works that have not been issued is very 
likely to incriminate fair use defense.43  

Third, testing the proportion or partly taken. David Naver explained that the 
most important thing that needs to be asked and answered from this test is 
whether other parties take part or reproduce a creation more than is necessary 
for its purpose.44 The general principle commonly heard from this third 
factor is the more taking, the more infringement. The meaning of the word 
more indicates that the word is qualitative and quantitative. This means that 
part three of Section 107 Copyright Act 1976 stipulates that an assessment 
qualitatively and quantitatively is necessary. 

Quantitative assessment is carried out by paying attention to the number or 
proportion taken. In contrast, a qualitative assessment is carried out by 
paying attention to the part substantially taken. For example, a student takes 
the entire contents of a book chapter to be reproduced, quantitatively it is 

 
40  Ibid at 356. 
41  Ibid at 355.  
42  Ibid at 351.  
43  Desy Nurhayati, supra note 1 at 71.  
44  David Naver, Intellectual Property Law: Copyright, Patent, Trademark (Ontario: Irwin 

Law, 1997) at 105.  



118 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
considered a lot, but its nature is not too substantial, it may not be a copyright 
violation. It is different from taking a small part in a book's contents, even 
though it is tiny quantitatively. Still, it is very substantial, or the basis is the 
essence of the work. Qualitatively, the taker's action may be considered 
unfair or violating copyright. 

In essence, the framework that can be inferred is how much and how 
substantial the portion is taken. Therefore, before determining whether the 
use of another party is fair, it must first be determined whether its use is in 
violation or not.  

Qualitative reproduction of creations should not exceed the educational goals 
to be achieved. A quantitative examination is also carried out by taking into 
account the number of parts taken from the original work, not the whole. To 
determine the benchmarks for the proportion of features that can be used, 
the academic community and book publishers have agreed to apply 
classroom guidelines for book reproduction even though they are not listed 
in the law.45 In the end, it was agreed that other parties could only reproduce 
books at a maximum of 10% or a thousand words from the entire book page. 
Especially for book creation, reproduction for the benefit of classroom 
lessons and research can only be done once for the teacher. Many copies are 
allowed for one student per class if one chapter of the book is short enough, 
copied spontaneously, and according to the test. Cumulative effect.46 Not 
only that, several other written works such as poetry, picture books (comics, 
children's books), sheet music also have their respective provisions, what 
percentage can be reproduced.   

The fourth is the economic effect of taking. Testing the economic 
consequences of this take assesses how other parties' use of the work (users) 
affects a work's potential market. This economic effect can also be 
determined by how much or how important the work is. The use of multiple 
shares can affect the market effect of the creator's property and or the use of 

 
45  United States Copyright Office, "Reproduction of Copyrighted Works by Educators and 

Librarians," online: <http://www.copyright.gov/circs/circ21.pdf>. 
46   Dharam Veer Singh and Pankaj Kumar, Photocopying of Copyrighted Works for 

Educational Purpose: Does it Constitute Fair Use? (2005)  10:1 Journal of Intellectual 
Property Rights, at 23. 



119 | Indonesian Journal of Law and Society 

 

small parts. Still, a substantial amount or core of the work can also affect the 
creator's property's potential market effects because the harvest is very 
economical. 47In some circumstances, a small part of the quote may not 
damage the work's potential in question. This is because a section may not 
be a substitute for using a work; for example, a writer quotes a sentence from 
another author's book, puts it in his published book, and then trades it on 
campus for educational purposes.48 The author who quotes it may not have 
violated fair use because it does not necessarily make the other party (readers) 
think not to buy the book from the author whose sentence has been quoted. 

This factor is a critical factor in fair use because it connects and makes other 
elements defense of fair use simultaneously. However, this last factor is not 
merely a determinant of a work being said to be fair or not. Other factors are 
also essential to consider and determine. It is only used to estimate whether 
there is a loss to the creator for using other parties' work. However, choosing 
how much to lose from this creator's potential market is very difficult to 
quantify. Rarely found exact numbers. Thus, in giving judgments, the court 
must be observant because of this factor's difficulty to prove. 

Determining whether a use is fair use or not can only be concluded with only 
one factor; for example, using work for educational purposes has been 
declared as fair use. However, it is still necessary to evaluate, apply, and weigh 
in the balance the nature of the work, the substance of the parts used, and 
the economic consequences of market use or the value of the work. In 
essence, it needs to be underlined that even though there is a provision for 
reproduction for educational purposes in the U.S. Copyright Act 1976, it 
still has to meet the four factors in Section 107 of the U.S. Copyright Act 
1976. After answering the four elements, the impression is born whether the 
act of reproduction is considered, whether fair or not.  

According to John Henry Merryman, to copy the U.S. copyright model, 
convergence is considered more appropriate. The Civil Law and Common 
Law are increasingly similar rather than significantly different. Therefore, 

 
47  Arthur R. Miller and Michael H. Davis, supra note 26 at 360-361. 
48  USG Copyright Policy, "The Fair Use Exception," 0nline: <http://www.usg.edu/ 

copyright/the_fair_use_exception>.  



120 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
apart from differences in legal systems, there should be legal obscurity to 
copyright exceptions in Indonesia for educational purposes as stipulated in 
Article 44 (1) of the Copyright Act can find solutions by using the 
comparative law method or using legal transplants to obtain objective 
results.49 

Cases regarding copyright restrictions in photocopying work such as books 
or other written works have never existed in Indonesian judicial practice.50 
Whereas we often encounter, especially in school environments and campus, 
users' actions to multiply books even as a whole are used for educational 
purposes. This is because many people take copyright protection lightly and 
think that making copies of books for the sake of academic reasons is a lawful 
act. Therefore, it is necessary to reinforce copyright protection. It is expected 
that the entire community will be able to realize it to better respect copyright.  

A more specific way to provide copyright protection to works is by revising 
the provisions regarding copyright exceptions as contained in Article 44 (1) 
letter a of the Copyright Act. They are not only qualitative but also 
quantitative. Of course, this is regarding the article's determination, namely 
how many proportions can be used or made reproduction of a work. For that, 
we need a mutual agreement by both authors, academics, and a photocopy 
shop in determining the number of parts to be used or reproduced on a 
creation that will serve as guidelines. It is also necessary to have an exact 
meaning regarding what kind of educational interest is meant in Article 44 
(1) letter a, whether it is non-commercial academic interests or not, for 
private use or public use.  

Other parties (users) who will use a work or work belonging to the creator 
must be carefully examined. For example, another party, namely a student 
making a copy of work because it may only use as much as 10% of the book's 
total contents for educational purposes. Also, the reasons for the importance 
of education do not merely make it an act of fair use. Even though education 

 
49  Choky R. Ramadhan, Convergence of Civil Law and Common Law in Indonesia in the 

Discovery and Formation of Law, (2018) 30:2 Mimbar Hukum, at 215. 
50   Kristian Takasdo and Agus Sardjono, Fair Use in the Copyright Protection System: A 

Comparative Study Between Indonesian Copyright Law and United States Copyright Law, 
(Depok: Thesis Faculty of Law University of Indonesia, 2013) at 2. 



121 | Indonesian Journal of Law and Society 

 

interests are one of the exceptions to copyright, it must still be considered 
whether the parts of education in terms of whether education is profitable. 
There need to be strict sanctions, both administrative and criminal sanctions 
related to this issue, so that creators in Indonesia feel that their creations are 
respected. If things are implemented, new creators can create designs 
without any fear of actions like this, which will have a good impact on the 
Indonesian economy. 

 

III. CONCLUSION 

Indonesia's copyright law concept needs a considerable adaptation through 
the legislative revision to include copyright exceptions for more specific 
educational purposes. By referring to the U.S. Copyright Act, the regulation 
regarding book reproduction in the U.S. is quite detailed and strict. This 
precise and strict regulation shows a higher awareness of the importance of 
copyright in the U.S. society responded by the government to provide a legal 
basis for protection. Thus, Indonesia’s current challenges and opportunities 
can refer to the existing U.S. Copyright Act even though both countries have 
different legal systems and traditions. 

 

REFERENCES 

Anwar, Chairul. Hak Cipta, Pelanggaran Hak Cipta, dan Perundang-
undangan Baru Hak Cipta di Indonesia (Jakarta: Novindo Pustaka 
Mandiri, 1999). 

Damian, Eddy. Hukum Hak Cipta (Bandung: Alumni, 2014). 
Dharam Veer Singh & Pankaj Kumar, “Photocopying of Copyrighted 

Works for Educational Purposes: Does it Constitute Fair Use?” 
(2005) JIPR Vol 101 January 2005. 

Jened, Rahmi. Hukum Hak Cipta (Copyright’s Law) (Bandung: Citra 
Aditya Bakti, 2014). 

Miller, Arthur R. and Michael H. Davis. Intellectual Property: Patents, 
Trademarks, and Copyright, in A Nutshell (Minnesota: West 
Publishing, 1990) 



122 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
Naver,  David. Intellectual Property Law: Copyright, Patents, Trademarks 

(Ontario: Irwin Law, 1997). 
Nurhayati, Desy. Tinjauan Hukum Hak Cipta Terhadap Aspek 

Penggunaan Komersial Terhadap Ciptaan Yang Menggunakan Lisensi 
Creative Commons, Skripsi (Depok: Fakultas Hukum Universitas 
Indonesia, 2011). 

Ramadhan, Choky R. "Konvergensi Civil Law dan Common Law Di 
Indkum,ia Dalam Penemuan dan Pembentukan Hukum" (2018) 30:2 
Mimbar Hukum. 

Rife, Martine Courant. The Fair Use Doctrine: History, Application, and 
Implications for (New Media) Writing Teachers, The Fair Use 
Doctrine: History, Application, and Implications for (New Media) 
Writing Teachers, Writing Program, Department of Communication, 
Lansing Community College, Lansing, MI, USA, 2007. 

Riswandi, Budi and M. Syamsudin. Hak Kekayaan Intelektual dan Budaya 
Hukum (Jakarta: Raja Grafindo Persada, 2004). 

Saidin,  OK. Aspek Hukum Hak Kekayaan Intelektual (Jakarta: Raja 
Grafindo Persada, 1995). 

Singh, Dharam Veer and Pankaj Kumar. Photocopying of Copyrighted 
Works for Educational Purpose: Does it Constitute Fair Use? (2005) 
10:1 Journal of Intellectual  Property Rights. 

Sudjana, Implikasi Doktrin “Fair Use” Terhadap Pengembangan Ilmu 
Pengetahuan oleh Dosen atau Peneliti Dalam Perspektif Hukum Hak 
Cipta (Bandung: Fakultas Hukum Universitas Padjadjaran, 2018). 

Takasdo, Kristian and Agus Sarrdjono. Fair Use Dalam Sistem 
Perlindungan Hak Cipta: Suatu Studi Perbandingan Antara Undang – 
Undang Hak Cipta Indonesia Dengan Copyright Law Amerika 
Serikat, Skripsi, (Depok: Faukltas Hukum Universitas Indonesia, 
2013). 

U.S. Copyright Office, “Reproduction of Copyrighted Works by Educators 
and Librarians” online: <http://www.copyright.gov/circs/circ21.pdf>.  

Urrokhman, Imam Sya'roni Dziya'. Perlindungan Hukum Karya Cipta 
Buku Ditinjau Dari Undang-Undang Nomor 19 Tahun 2002, Tesis 
(Semarang: Fakultas Hukum Universitas Diponegoro). 



123 | Indonesian Journal of Law and Society 

 

USG Copyright Policy, "The Fair Use Exception," online: 
<http://www.usg.edu/copyright/the_fair_use_exception>.  

Widowati, Retno Sari. Penerapan Prinsip Fair Use Dalam Hak Cipta 
Terkait Dengan Kebijakan Perbanyakan Buku di Perpustakaan 
Perguruan Tinggi (Studi Perbandingan Hukum Berdasarkan Undang- 
Undang Hak Cipta di Indonesia Nomor 28 Tahun 2014 dan Australia) 
(Malang: Fakultas Hukum Universitas Brawijaya, 2015). 

  



124 | Fair Use Doctrine in Photocopying Books for Educational Purposes 
 
 
 
 

 

 

 

 

 

 

 

 
This page intentionally left blank