(Published in the JIII Yearly Magazine IP COMMUNITY Volume 11 – March 2008)

The recently passing year of 2007 was – to me particularly as an IPR practitioner – quite colorful mostly for nothing but an interesting incident, which has notably elevated Indonesians concern about IPR to a somewhat unprecedented level as ever.


 A smell for an inevitable incident was in the air when the Tourism Board of the neighboring country Malaysia, in one of her campaigns for her Truly Asia tourism program, launched an audiovisual commercial advertisement in a website[1]. The commercial would be just fine as a usual tourism if not for a song used as the background. The use of the song, popularly well-known in Malaysia as “Rasa Sayang” and in Indonesia as “Rasa Sayange”, soon triggered a nationwide public outcry in Indonesia as the nation acknowledges the song is one of its nationally acclaimed folksongs particularly originating from its province of Maluku.


 The public outcry further turned out to become accusations that Malaysia has again committed “cultural theft” towards Indonesian cultural assets as many Indonesians had also accused Malaysia before of taking away Indonesian much-prided batik and barongan dance. Not enough with the accusation, no less than parliament members also blamed the government for not doing well enough in protecting national cultural and intellectual assets, and even went as far as suggesting the Indonesian government to take legal action against Malaysia for copyright infringement of the song[2].


 The Malaysian authorities indeed rejected the accusation by stating that it never made any claim whatsoever upon the ownership rights of the song. Furthermore, it also contended that the use of the song was primarily based upon the conviction that the song should be a common heritage of the people in Indonesia and Malaysia as well as in other countries with significant presence of Malayan ethnics and language in the region[3].


* * * 

 To draw rigid lines of ownerships of cultural assets based such upon merely geopolitical boundaries in the sense of modern day nation-states can be considered as next to impossible to do since the existence of such cultural assets may have long predated the birth of national boundaries. In our present situation, for instance, there must be a multitude of traditional music, arts and knowledge that may have generated through centuries of interaction and thus shared between population as well as ethnic groups inhabiting for generations what is in our present days known as Indonesia and Malaysia. How Indonesian and Malaysian cultures are closely related to each other is quite evident as to the origin of the Indonesian official language, Bahasa Indonesia, which was modeled after an old Northern Sumatran form of Malay language[4], the official language of Malaysia.   

 On the other hand, to draw the ownership borderlines through legal measures of copyright laws may cause the headaches even worse. While Indonesia and Malaysia are both members to the Berne Convention[5] as well as the TRIPS Agreement[6], a fact that may ensure that both countries are at least applying copyright protection at more or less equal level based upon the international standards, the copyright laws measurement is not necessarily suitable to solve the problem in question.


One of the main reasons lies in the basic principle of copyright protection itself, or referring to the more general term used in the Bern Convention: protection for literary and artistic works, by which authors of literary and artistic works are granted exclusive right of authorizing, among others, the reproduction of the respective works[7]. Under the Indonesian copyright law this principle is thus reaffirmed, defining Copyright as exclusive rights for the author or the rights holder to do and/or authorize certain actions upon his works[8].


Accordingly, the one who can put the most appropriate claim over the song based upon the copyright principles shall be the original composer himself, which is, unfortunately, unknown. The anonymity of the composer at least has been confirmed by the Indonesian side through the Minister of Cultures and Tourism[9], as with the local officials and artists from the province of Maluku[10]. As a matter of fact, Maluku’s claim to be the place of origin of the song is based more upon the people’s traditional familiarity with the song for generations, as well as arguing that the lyrics is of Ambonese dialect that is distinctive to the people of that region, rather than upon valid evidence regarding the identity and origin of the actual composer[11].


There is also physical evidence that “Rasa Sayange” was recorded on vinyl by Indonesian state-owned recording company Lokananta dated back to 1962, along with other national and patriotic songs[12]. Those records were then distributed as souvenirs during the 1962 Asian Games that was held in Jakarta. Nevertheless, the composer of the song in the recordings was indicated as “NN”, the common abbreviation for “no name” or unknown.


The recording can hardly stand for its own rights in the current dispute, i.e. for Lokananta as the recording company to take legal action based upon the exclusive rights over the sound recordings[13], since a different version of recording is used in the disputed commercial. On the other hand, based upon the Copyright Law provision that the State shall hold copyrights upon published works whose authors are unknown[14], as well as another provision of the Law stating that a publication of a works by a legal entity without indicating the author may render the legal entity to be regarded as the legal author[15], it may be possible that the 1962 recording should serve as an evidence of an earlier publication of the song by the Indonesian government and thus the Indonesian ownership thereof. Still such case is not unchallengeable, however, since there could be evidence for even earlier use and/or publication of the song from the opposite side.     

 In the viewpoint of the copyright protection system, such lack of valid evidence regarding the identity and origin of the song’s actual composer may place doubts upon the arguments that the song was Indonesian in origin since it was composed by Indonesian – or at least by someone who could have been Indonesian since the creation of the song must have taken place before the state of Indonesia have even existed. Therefore, Indonesian claim of sole ownership upon the song would never be an easy case.     


With respect to the protection of national cultural assets, the Indonesian Copyright Law in fact has been equipped with provisions that the State shall hold the copyrights over folklores and other common cultural heritage of the people such as stories, tales, legends, songs, handicrafts, choreographies, dances, calligraphies, and other art forms[16]. Under these provisions, all foreign entities wishing to exploit such cultural works shall obtain permission from the designated authorities[17]. However, up to this moment the provision is still to be supported by further implementing regulations.


Furthermore, one shall also learn from the “Rasa Sayange” incident that any legal provision to accommodate protection of a nation’s traditional cultural assets shall be designed to work not only at national level, but also through regional or even international framework. As it would naturally be difficult to put strict boundaries over traditional cultural assets that exist around such a close proximity as with Malaysia and Indonesia, it would be better if both as well as other adjoining countries could work together for the arrangement of the utilization and protection of their cultural assets. 


* * * 


It was actually good to see that the Indonesian government has let wisdom and reasonableness prevailed despite demands from Indonesian public to the government for taking harsh action against Malaysia’s alleged “cultural theft”. At the end of the day, both governments managed to downplay the tension and thus reach a common understanding that the song is rightfully belonged to and shall be shared together by the people of both countries, added by a request made by the Indonesian Minister of Culture and Tourism for Indonesia to be informed and acknowledged whenever Malaysia wish to use its cultural asset[18].


On the other hand, the minister also pleaded local governments in Indonesia to pay more attention towards their respective cultural assets as to prevent misappropriation by any non-rightful party. The minister along with the minister of laws of human rights also expects Indonesian local artists to increase their awareness upon the importance IPR protection for their works[19].      

Indeed, the “Rasa Sayange” incident has provided a good momentum for Indonesians to refresh their concern and awareness upon IPR protection, especially with regard to their creative works. On the other hand, I often jokingly ask my friends about how often they heard or saw the song “Rasa Sayange” or other traditional folksongs being performed at the scale of gaining considerable fame and popularity either in radios or television before the incident with Malaysia, to which the reply I mostly have is “hardly ever”.


This actually made me think of another great lesson Indonesians should learn from the incident. It would be useless as it would be pointless to provide the strongest possible legal protection, if our cultural assets were only to be embalmed under such protection and thus be forgotten by those who are supposed to own it.


At the end, arts, music, songs, and other form of cultural heritage are there not to sit still and later die in posterity, but should be better preserved by being further utilized and developed for the enrichment of the culture and the good of the common.


[5], Malaysia and Indonesia are members since 1990 and 1997, respectively.

[6], both Malaysia and Indonesia joined the WTO on 1 January 1995.

[7] Article 9, Berne Convention for the Protection of Literary and Artistic Works.

[8] Article 2, Law no. 19 of 2002 on Copyrights.

[13] Article 49(1), Law no. 19 of 2002 on Copyrights.

[14] Article 11(3), Law no. 19 of 2002 on Copyrights.

[15] Article 9, Law no. 19 of 2002 on Copyrights.

[16] Article 10(2), Law no. 19 of 2002 on Copyrights.

[17] Article 10(3), Law no. 19 of 2002 on Copyrights.


Perihal Prayudi Setiadharma
Prayudi adalah penulis dan kontributor utama situs/blog 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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