RECENTLY UNVEILED: DRAFT FOR THE BILL ON THE PROTECTION OF TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS

(also published in “AMROOS & PARTNERS IP Update & News” August 2008 edition)

The Indonesian government is currently working on a new law that would provide sui-generis legal measures to protect the nation’s priceless cultural heritage of traditional intellectual assets against misappropriation. The first official draft of the Bill, aptly named Intellectual Assets Protection and Utilization of Traditional Knowledge and Traditional Cultural Expression (TK-TCE), was unveiled to public for the first time recently in mid-July 2008 as a Public Expose Forum for the proposed law was held in Jakarta by the Directorate of Legislation, Department of Laws and Human Rights, after being prepared by a team comprising experts from the Directorate General of Laws and Human Rights, the Department of Culture and Tourism, as well as IPR organizations and several academic institutions.

The proposed law departs from recognition upon the affluence of TK-TCEs emerging from numerous ethnical groups that inhabit the Indonesian archipelago for centuries, which must be seen not only as cultural heritage significant only to each traditional community to whom any particular TK-TCE belongs, but also as intellectual assets of commercial values that may attract locals and foreigners alike. Using this perspective, it is apparent that misappropriation of TK-TCEs by outsiders in the form of commercial exploitation to the detriment of the beholding traditional communities is at risk.  

Allegedly, there have been a number of instances upon which many Indonesians feel that their TK-TCEs have been misappropriated by foreign entities for economic purposes without any fair compensation given to the actual stake holders. Some foreign countries, for instance, is known to have granted patent protection upon innovation based upon tempe, a traditional Indonesian protein-high food made from cultured soya beans. Other instances may also include some patents for medicine and cosmetic substances filed abroad by foreign entities that were yet based upon natural formula known to and developed by traditional communities.

Demands on adequate protection of TK-TCE once again surfaced recently when Malaysia used a song entitled Rasa Sayange, which most Indonesians believe to be one of the folk-songs originated from the Moluccas region in eastern Indonesia, in their official tourism website. This incident appeared to culminate many previous allegations that Malaysia had copied Indonesian cultural heritages such as batik, angklung (pentatonic musical instrument made from bamboo), and reog dances. While it is not so simple to determine on who actually owns what due to close proximity as well as long history of interaction between the two nations, both governments eventually managed to play down the increasing tension and reached an understanding as to view the song in particular as a shared common heritage and thus emphasized on the need to inform each other whenever one wishes to undertake commercial exploitation of such cultural products.

Still this incident alarmed the Indonesian public about the lack of proper and effective protection towards national cultural heritage especially the intangible intellectual assets thereof, in contrast to the ever increasing strictness and enforcement of the IPR law regimes following Indonesia’s accession to the TRIPS Agreement.

Article 10 of the Law no. 19 of 2002 concerning Copyrights actually tries to provide a protection mechanism under copyright regimes as according to the Article the state shall hold the copyrights of national folklores and other common cultural heritages, and that all non-nationals who wish publish or copy such cultural products must at first obtain permission from the government. While the Government Regulation regulating further implementation details of this article has yet to arrive, many see that copyright or other existing modern IPR regimes is an unsuitable answer to the actual question considering the eminent contradictions in the natures and values of cultural heritage assets as compared to those of new inventions and/or creations protected under the IPR regimes.

The proposed law as can be seen in the first draft of the Bill instead tries to address the cultural intellectual assets protection issue using different approach from mainstream IPR protection system. Traditional knowledge and traditional cultural expression (TK-TCE) is hereby treated as intellectual assets which priceless values shall be maintained and shared for inter-generations of the common good. Using this approach therefore exclusive monopoly or private appropriation of TK-TCE is definitely out of question.

The Draft proposes that a form of custodianship, in place of the otherwise proprietary ownership under the mainstream IPR regimes, over any particular TK-TCE shall be reserved by traditional communities within which said TK-TCE has so far been maintained and nurtured in traditional and communal senses. The term “utilization” is also introduced to represent the application or implementation of any particular TK-TCE outside of its tradition context, and shall cover any act of publication, reproduction, dissemination, broadcast, alteration, transformation, citation, adaptation, distribution, rental, sale, making available to public, and communication to public.

It can be seen that basically the proposed law emphasizes in two primary missions for the government to carry out. The first being the build-up of a national database of TK-TCEs that can be identified as belong to traditional communities in Indonesia. The database for each documented TK-TCE must contain description of the respective TK-TCE substantially, and shall record any utilization thereof.

Secondly, it is to build a system to prevent misappropriation by prohibiting utilization of Indonesian TK-TCEs by foreigners without formal license issued by the district-level government, the province-level government, or the Government Minister in-charge at national level depending on the scope of the each TK-TCE they wish to utilize. Request for being granted such license must be submitted to the Government Minister in-charge who will in turn employ a Board of Expert on TK-TCE to provide recommendation that will be forwarded to the right authority.

As for Indonesian nationals or legal entities, an agreement of consent must at first be reached with the respective custodian before a particular TK-TCE can be commercially utilized. The proposed law would also employ protection similar senses to that of Moral Rights in Copyrights as to prevent misattribution caused by any failure to appropriately identify the source of any particular TK-TCE, and to prevent any particular TK-TCE being utilized in the manner detrimental to the traditional communities to whom the utilized TK-TCE belongs.

Being the first specific proposed legislation aimed at protecting the intellectual asset of TK-TCE, the draft of the Bill received mostly positive response from the audience of the Public Expose Forum. However, some notes and concerns were also raised in the forum. One of the concerns speaks for the definition used in the proposed law with regard to Traditional Knowledge and Traditional Cultural Expressions since evidently the draft has yet to reach the most appropriate formula for such definitions while there is also suggestion to refer to definitions set by WIPO.    

There is also concern on the need of more definitive rules to determine the appropriate custodian for each TK-TCE considering the nature of TK-TCE by which it would be very difficult to establish “which belong to whom” as to avoid any potential horizontal conflicts among different traditional communities over custodianship of one particular TK-TCE.

These notes and concerns left a considerable amount of home works for the drafters in order to make a Bill that can address the arising issues more appropriately. At the end, there is indeed a hope that the nation’s long waiting for a strong and effective law to protect the invaluable assets of traditional knowledge and traditional cultural expressions, without denying any opportunity to share the benefit with other nations of the world, can eventually be fulfilled.

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Perihal Prayudi Setiadharma
Prayudi adalah penulis dan kontributor utama situs/blog marimengenalhki.com. Sebagian artikel yang ditulis Prayudi dalam blog ini juga telah diterbitkan dalam bentuk buku berjudul "Mari Mengenal HKI" oleh penerbit Goodfaith Production pada bulan Mei 2010. Prayudi telah menaruh minat yang mendalam pada bidang hukum hak kekayaan intelektual (HKI) sejak mengerjakan tugas akhir di Fakultas Hukum Universitas Padjadjaran, Bandung. Ia lalu memutuskan untuk menekuni minatnya tersebut dengan mengambil program Master of Intellectual Property Laws di University of Melbourne, Australia. Setelah menuntaskan program tersebut, Prayudi lalu bekerja di Law Firm AMROOS & PARTNERS, sebuah kantor hukum spesialis HKI yang berlokasi di Jakarta dan sejak Oktober 2010 berganti nama menjadi AMR PARTNERSHIP, hingga saat ini dimana ia berposisi sebagai Partner.

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