[110-130]

Editorial Office: Faculty of Law, Sriwijaya UniversityJalan Srijaya Negara, Palembang, South Sumatra 30139, . Phone: +62711-580063Fax: +62711-581179 ISSN Print: 2541-5298 E-mail: [email protected]| [email protected] ISSN Online: 2541-6464 Website: http://journal.fh.unsri.ac.id/index.php/sriwijayalawreview

Indonesia’s Traditional Knowledge Documentation in Intellectual Property Rights’ Perspective

Dwi Tiara Kurnilasari*, Annalisa Yahanan** and Rohani Abdul Rahim***

Abstract: Indonesia is a fertile place for traditional knowledge with more than 300 ethnical group inhabitants. Therefore, it is not surprising to know that Indonesia has the enormous potential of tradi- tional knowledge. However, Indonesia is still has some problems in legal framework to protect it. The research applies doctrinal research method. The problems that will be discussed in this article is what type of traditional knowledge documentation system that used in Indonesia and how it is performed in order to protect traditional knowledge. There are few goals from this research which are to find out about Indonesia's traditional knowledge documentation system and to compare it with other countries that also use documentation as the protection method. As a result, traditional knowledge documenta- tion system used in Indonesia is external registries which are done by parties outside the indigenous communities (Government, Academist, and NGO) and the information about traditional knowledge is placed in public domain. Even though it has not perfectly documented like India's Traditional Knowl- edge Digital Library, Indonesia has documented few of its traditional knowledge such as Songket pat- tern that belongs to South Sumatera. It could be summarized that traditional knowledge documenta- tion has a vital role as one of the most practical methods to perform traditional knowledge protection. In order to protect traditional knowledge, these documented activities need to be enhanced so it could give the financial benefit to indigenous communities as its owner.

Keywords: Documentation; Intellectual property rights; Traditional knowledge.

ARTICLE HISTORY : INTRODUCTION DOI: 10.28946/slrev.Vol2.Iss1.114.pp110-130 Traditional knowledge is a term used to Received: Apr 11, 2017; Reviewed: May 10, 2017; describe a form of knowledge that created Accepted: July 10, 2017; by a group of indigenous peoples which Published: Jan 31, 2018; Citation: V.2.1 SLRev. 2018. passed through many generations and have 1 a direct impact on nature or society. * Faculty of Law, Sriwijaya University, Traditional knowledge always dynamically Palembang- South Sumatera, Indonesia changing its character in order to accustom E-mail: [email protected] ** Faculty of Law, Sriwijaya University, itself with nature and society lively Palembang-South Sumatera, Indonesia condition. Although it might sound E-mail: [email protected] modest, traditional knowledge played a *** Faculty of Law, National University of Malaysia, Bangi, Selangor, Malaysia 1 Affrillyana Purba, et.al., TRIPs-WTO dan Hukum E-mail: [email protected] HKI Indonesia: Kajian Perlindungan Hak Cipta Seni Tradisional di Indonesia, : PT. Rineka Cipta, 2005, pp15-16.

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major role in term of biodiversity’s practical habit and the way of life that conservation and cultivation. Indigenous might be seen as something distinct to people have always lived their life by modern people. These kinds of cultural holding to their traditional knowledge and heritage could appear in many shapes such expand it to various form of technology as language, crafts, music, dances, song that generally beneficial to their natural and ceremonies, agricultural and environmental condition and specifically ecological knowledge, sacred places from to biodiversity condition.2 ancestors, and the documentation from all The terminology of traditional of them.5 knowledge itself has a broad scope Furthermore, the vital part of including their economic aspects to the traditional knowledge could be seen from culture of indigenous communities and itself. Modern technology like biotech- country. However traditional knowledge nology essentially from manip-ulating discussions in the past were mainly traditional knowledge into a new form of focused on unique traditions and customs knowledge that has been adapted to from the certain indigenous community. modern science. Whether it acquired from Nowadays, the topics are expanding to the database search or even direct discussion extent of customary law that developing with the communities, it is clear that along with the traditional knowledge.3 traditional knowledge stands on the pivotal World Intellectual Property point as the main source of scientific Organization (WIPO) stated that research by academics or companies traditional knowledge is not only limited nowadays. There are plenty fields granted to technological based knowledge that with traditional knowledge benefit, for owned by indigenous society, but also instance, food and beverages, health, included other knowledges such as agricultural, and cosmetology.6 tradition-based literature, many form of In general, it is indeed a tough play for arts, show, design, brand, name and traditional knowledge to be protected in symbols, also all of the traditions based Intellectual Property Rights legal frame. innovation and creations resulted from The reasons are due to its own natural intellectual process in industrial, scientific, condition which allows traditional literature, and art field.4 knowledge being shared and used inside Traditional knowledge as one of the traditional communities for a long cultural heritage is consist of traditional time. Moreover, mostly traditional knowledge are named as public properties

2 John Mugabe, Intellectual Property Protection that owned by all of the indigenous group's and Traditional Knowledge, Geneva: WIPO, 2007, pp99-100. 5 Lukman Hakim, 2009, “Upaya Harmonisasi 3 David R.H., 2011, “Protection of Traditional Hukum Terhadap Perlindungan Pengetahuan Knowledge: Trade Barriers and the Public Tradisional (Traditional Knowledge) di Domain”, Journal of the Copyright Society of the Indonesia”, Jurnal Yustika, 12 (2), p171. U.S.A., 58 (4), p407. 6 Manuel Ruiz, “The International Debate on 4 World Intellectual Property Organization, 2002, Traditional Knowledge as Prior Art in the Patent http://www.wipo.int/edocs/mdocs/tk/en/wipo_grt System: Issues and Options for Developing kf_ic_3/wipo_grtkf_ic_3_9.pdf [retrieved: 17th Countries”, Center for International October 2017]. Environmental Law, Washington, DC.: 2002, p4.

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members. Hence, protecting traditional Balinese people for a long time by the knowledge should not be done only from name of "Kulit Buaya".10 legal aspects, but also from maximization Biopiracy11 is a common case that of economic's potential.7 happened when an exploration or research A group’s traditional knowledge is of traditional knowledge being held. Even usually involved in their daily lives in though it rarely caught people attention, many ways. However, the owner which is the parties who held this research does indigenous community usually neglected something other than exploiting the its financial capacity and have no knowledge which is also exploiting its intentions of protecting it from the further natural resources where the traditional misappropriation that mostly done by knowledge comes from. Not to mention outsiders.8 that the majority of medicine in the market One of the famous traditional at least contain one of the natural knowledge embezzlement happened to ingredients that have been proved as a Indonesia’s traditional knowledge which is result of traditional knowledge further a traditional design of silver jewelry. development.12 For instance, artemisinin is This design was patented by a company the main component in modern malaria's called John Hardy International Ltd under medicine. Artemisinin itself is derivated the name of “Batu Kali” to Indonesian from the synthesis of 28 Zimbabwe Directorate General of Intellectual traditional plants used by the indigenous Property Rights. Due to lack of people.13 Biopiracy could be marked as the documentation that Balinese have to prove aftermath of Intellectual Property Rights that design belongs to them, John Hardy 10 International Ltd could successfully secure World Intellectual Property Organization, 2009, 9 http://www.wipo.int/edocs/mdocs/tk/en/wipo_ipt their patent right for the design. k_bkk_09/wipo_iptk_bkk_09_topic1_1.pdf Unfortunately, this acquisition of patents [retrieved: 25th October 2017] 11Biopiracy is an act of theft the traditional right by them caused an impact to a knowledge which categorizes as biodiversity or Balinese artist named Ketut Deni Aryasa. technical knowledge that being owned by He got accused of plagiarism due to indigenous people. The main goal is to create a new intellectual property. It could also describe copying their "Batu Kali" design despite as misappropriation and commercialization of the fact this design is already known by traditional knowledge belong to a certain indigenous group illegally. R.D. Singh, et.al., “Pharmaceutical Biopiracy and Protection of 7 A.F. Myburgh, 2011, “Legal Developments in the Traditional Knowledge”, International Journal of Protection of Plant-Related Traditional Research and Development in Pharmacy and Life Knowledge: An Intellectual Property Lawyer’s Sciences, Vol. 3, No. 2, 2014, p866. Perspective of the International and South 12Abha Nadkarni and Shardha Rajam, 2016, African Legal Framework”, South African “Capitalising the Benefits of Traditional Journal of Botany, 77, p845. Knowledge Digital Library (TKDL) in Favour of 8 Heri Aryanto, 2014, “Pemanfaatan Pengetahuan Indigenous Communities”, Manupatra, 9 (1-2), Tradisional Indonesia Berdasarkan Potensi p2. Daerah Sebagai Modal Pembangunan”, Jurnal 13Andrea Rinaldi and Priya Shetty, 2015, Hukum dan Pembangunan, 44 (2), pp296-301. Traditional Medicine for Modern Times: Facts 9 Laina Rafianti, 2017, “The Protection of The and Figures, Performing Arts in Indonesia, Including In The https://www.scidev.net/global/medicine/feature/tr Digital Age”, WIPO-WTO Colloquium Papers: aditional-medicine-modern-times-facts- 2017 Asian Edition, pp87-88. figures.html [retrieved: 2nd January 2018].

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failure to protects traditional knowledge According to WIPO, documentation and make traditional knowledge keep of traditional knowledge refers to all getting appropriated.14 activities of identification, fixation, and Traditional knowledge documen- classification aimed at facilitating retrieval tation considered to play important roles in from an organized data set, such as paper, term of traditional knowledge protection. files, digital databases, archives or A significant number of traditional libraries.18 Documentation of traditional knowledge biopiracy and misappropriation knowledge could also be elaborated as a that arise clearly show how important for a collection of legal documentation that country to protect its traditional know- gives detailed explanation of a traditional ledge. One of these methods is to make knowledge. The main purpose of doc- traditional knowledge documen-tation. umenting traditional knowledge is to Indonesian’s government concern to this provide pieces of information related to issue is shown from the legalization of two traditional knowledge’s role as prior art19. national law that could act as the legal Many believe that by documenting their basis of traditional knowledge documen- traditional knowledge in certain accessible tation. These are The Law 2014 No. 28 on forms would prevent the mala fide patent Copy Rights15, The Law 2016 No. 13 on based on traditional knowledge in the Patent16, and The Law 2017 No. 5 on future.20 Cultural Advancement.17 The other goal of documenting This article will describe how traditional knowledge is to prevent further important documenting traditional know- misappropriation when a patent application ledge for its protection as an Intellectual has been granted. In addition, traditional Property Rights object. knowledge documentation could also assist in indigenous people identification ANALYSIS AND DISCUSSION when it comes to sharing the benefit of

Traditional Knowledge Documentation traditional knowledge usage.21 An enormous amount of potential that There are two ways of documenting belongs to traditional knowledge had traditional knowledge which is by local successfully grown people’s interest to registry system that is done inside the give more attention to this field. Moreover, community or by external registry system it is not only the government but also many of cultural institutions and local 18 World Intellectual Property Organization, 2016, society that show their interest toward the WIPO/PUB/TK/9, p1. 19 is referring to the collection of patent-related act of traditional knowledge documen- information that could be accessed by the public tation that mostly done in various with the intention to measure the novelty aspect countries. of an invention. Patent authorities responsible to do the substantial review of a patent application by referring to prior art document before granting its rights. 14Note 12. 20Rohaida Nordin, et.al. ., 2012, “Traditional 15The Law 2014 No. 28 on Copyrights, Article 38. Knowledge Documentation: Preventing or 16The Law 2016 No. 13 on Patent, Article 26. Promoting Biopiracy”, Pertanika J. Soc. Sci. & 17The Law 2017 No. 5 on Cultural Advancement, Hum, 20, p13. Article 16-20. 21Note 20.

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that is done outside the community. Local groups.25 External registry system in registry system is a system where the Indonesia itself is performed by Balai indigenous community members could Pelestarian Sejarah dan Nilai Tradisional decide together which traditional (BPSNT) which its main task is to knowledge should be documented and documenting every traditional knowledge disclosed to outside the community.22 in every part of Indonesia. In addition, Some example of this type of there is another country that used this documentation is the documenting activ- system which is Ghana. The ities of that have been done by documentation of traditional knowledge Gamelan Entrepreneur and Artist and folklore in Ghana is operated by The Community in .23 The other Ghanaian National Folklore Board of illustration is the deeds that being done by Trustees.26 The Aboriginal Community Association While it could be done internally or (TOBA) in Argentina. This community externally, there are other types of main vision is to educating, protecting traditional knowledge documentation rights, and documenting indigenous which is the public registry and private peoples’ traditional knowledge.24 registry. Public registry means the Furthermore, the other type of information about traditional knowledge traditional knowledge documentation is will be placed in the public domain with external registry system that usually done the ultimate goal to transform it into prior in national or international level. This type art and defensive disclosure.27 There are of documentation particularly wrought by few countries that using the public registry some institutions, for instance, govern- to documenting their traditional knowledge ment, a non-governmental organi-zation, such as India with its well-known and many others. The documentation of Traditional Knowledge Digital Library traditional knowledge could take any form, (TKDL) and South Korea with The Korean but mainly as a collection of traditional Traditional Knowledge Portal (KTKP).28 knowledge from one or more indigenous The second type of traditional knowledge documentation is placing the

22Adya Paramita P, “Sistem Registrasi Sebagai information outside the public domain or Alternatif Dalam Memberikan Perlindungan Atas called private registry. This type of Pengetahuan Tradisional (Studi Kasus Sengketa documentation has a high capability in Pengetahuan Tradisional Antara Amerika Serikat dan India”, Program Beasiswa Unggulan term of protecting traditional knowledge. Magister Ilmu Hukum Program Pasca Sarjana, Additionally, private registry system is an Universitas Diponegoro, Semarang, 2008, p49. 23Badan Penelitian dan Pengembangan HAM effective tool to be used for traditional Kementerian Hukum dan HAM RI, Perlindungan Kekayaan Intelektual Atas Pengetahuan Tradisional dan Ekspresi Budaya Tradisional 25Adya Paramita P, Note 22, p49. Masya-rakat Adat, Bandung: P.T. Alumni, 2013, 26Afrillyana Purba, Note 24, p338. p96. 27Adya Paramita P, Note 22, pp50-51. 24Afrillyana Purba, Pemberdayaan Perlindungan 28USPTO,2005, Hukum Pengetahuan Tradisional dan Ekspresi https://www.uspto.gov/patent/laws-and- Budaya Tradisional Sebagai Sarana regulations/comments-public/traditional- Pertumbuhan Ekonomi Indonesia, Bandung: P.T. knowledge-and-medicine-dictionariesdatabases Alumni, 2012, pp329-330. [retrieved: 13th December 2017].

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knowledge access and benefit sharing application based on a traditional know- arrangement.29 Most of the countries that ledge that applied by parties other than the using this documentation system utilize it owner of knowledge itself.33 into their own sui generis law. Some A Database is a collection of related countries that using this system are Peru30 information, specifically traditional know- and Kenya where Mijikenda Community ledge database best described as collection working together with Kenya Forestry or compilation of information related to Research Institute (KEFRI).31 traditional knowledge. Moreover, informa- Although both of these traditional tion that stored in a database could be in knowledge documentation types seem any shape that possible, for example, a col- different each other, there is one advantage lection of written sources, or even infor- from these systems which is their ability to mation that is digitized. Particularly, an prevent further mala fide intellectual electronic or digital database is the type property rights claim toward traditional that most straightforward to use. Because knowledge. In order to work efficiently, this kind of database could be set to have a the most important task that patent offices few level of accessing authority, from the should be done is to raise their awareness one that open to the public to the other that about the importance of prior art search may be included with certain restrictions to when patent applications being certainly available information.34 Indone- examined.32 sia is creating its own electronic integrated traditional knowledge database now. This Traditional Knowledge Database database is created by a Non- In relation to traditional knowledge docu- Governmental Organization called Sobat mentation, there is a term called traditional Budaya. However, after the termination of knowledge database that mentioned fre- LINTRAD programed by Ministry of Re- quently in this field. Using database re- search and Technology in 2005, Indonesia sulted from traditional knowledge docu- has not yet to create any official database mentation could be seen as a traditional by the authorities.35 know-ledge legal protection method along Traditional knowledge owner could with documenting it. In June 2002, World create, develop, and maintain their own Intellectual Property Organization stated database independently without external that the use of traditional knowledge data- assistance from third parties. The benefit base could effectively defeat illegal patent 33Tonina Simeone, “Indigenous Traditional 29Adya Paramita P, Note 22, pp50-51 Knowledge and Intellectual Property Rights”, 30World Intellectual Property Organization, Political and Social Affairs Division, Library of WIPO/GRTKF/IC/19/INF/10 Parliament, Perancis, 2004, p. 4. 31Fredrick Otswangb, 2011, “Protecting Traditional 34Ryan Abbott, “Documenting Traditional Medical Knowledge and Associated Genetic Resources in Knowledge”, World Intellectual Property Kenya: What A Community Needs To Know”, Organization, 2014, p35. Trade Notes, 31, p. 6. 35Lukman, 2015, Model Pengelolaan Sumber Daya 32Stephen A.H. and Justin W. V., A Handbook on Genetikdan Pengetahuan Tradisional di Issues and Options for Traditional Knowledge Indonesia, http://lipi.go.id/publikasi/model- Holders in Protecting their Intellectual Property pengelolaan-sumber-daya-genetik-dan- and Maintaining Biological Diversity, pengetahuan-tradisional-indonesia/14826 Washington, DC: AAAS, 2003., p17. [retrieved: 2nd January 2018].

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from this method is the indigenous com- Traditional Knowledge Documentation munity could control the access and docu- in Indonesia mentation process by themselves. How- The importance of traditional knowledge ever, this method also has its own draw- documentation had also caught govern- back which is due to their internal mainte- ment attention, especially in the legal as- nance. Thus, the financial resources and pect. There is two national law that acts as skill that needed to develop the database the legal basis of traditional knowledge are limited to only certain level. Whereas documentation process. There are The Law in order to function properly, a database 2014 No. 28 on Copyrights, The Law 2016 should be updated regularly and digitally No. 13 on Patent, and The Law 2017 No. 5 integrated. And to developing such kind of on Cultural Advancement. To be precise, technologies is not an easy task because the specific topic about traditional knowl- there are a plenty amount of fund and edge documentation is in Article 38 of The skilled human resources needed in the pro- Law 2014 No. 28 on Copyrights. This arti- gress. An example of an internally main- cle mentioned about the State liability to tained database is the Kaska Traditional perform traditional knowledge documenta- Knowledge Network (KTKN) in Colom- tion. It said that the State has a responsibil- bia.36 ity for documenting, keeping, and main- The common type of database is the taining traditional cultural expressions.38 one that created by external parties outside Despite the fact that this article al- the indigenous group. External maintained ready gives a brief explanation about the databased could be managed by organiza- government task in documenting tradi- tions such as academics, museums, com- tional knowledge, it is not enough to be- panies, and non-governmental organiza- come a legal foundation of its own activi- tions. In addition, there is a number of rea- ties. Moreover, Article 26(1)(2) of The sons underlying their act on maintaining Law No. 13 of 2016 on Patent also implic- traditional knowledge database such as, to itly said the role of traditional knowledge provide sufficient legal protection for tra- documentation in order to assist the proc- ditional knowledge, and to the extent of ess of disclosure of origin from a tradi- facilitating access to traditional knowledge tional knowledge-based invention.39 so the further research toward it could be Hence, The Law No. 5 of 2017 on done at ease. Some database were made by Cultural Advancement created and legal- collaborating with traditional knowledge ized. Articles 16 to 20 are the part where owner, but some others only placing the traditional knowledge documentation be- information in public domain so people come its main focus. These articles regu- could easily access it. For instance, the lated:40 World Bank Database of Indigenous “(16) The steps of traditional knowledge documentation consisted of registration and Knowledge and Practices and the Honey- documenting, estab-lishing, and updating 37 bee Network. the data. Documenting traditional knowl-

38Note 15, Article 38. 36 Note 34. 39Note 16, Article 26. 37Note 34, pp35-36. 40 Note 17, Article 16-20.

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edge activities is done through a system the absence of government participation, called Integrated Cultural Data Collection System. (17) The national authorities and/or whether as the creator or verification, this local authorities with their own competency database could not be categorized as an have their own responsibility for registering official database nor prior art. Thus, this and documenting the cultural advancement object. (18) Every person could manage database will only become a collection of their own cultural advancement object reg- information for preservation purposes. istry and documentation system. Therefore, In addition, the national government the Minister has an obligation to legally es- tablished the documented information. Be- is not the only party who involved in tradi- sides, the national government and/or local tional knowledge documentation process. government also have another liability which is to facilitate every individual who Local government and few local organiza- intended to take a part in registration and tion also independently collecting and documentation of traditional knowledge documenting traditional knowledge from process. (19) After the registration and documen-tation processes done, the Minis- their own provinces. Although there are ter must legalize the result of Cultural Ad- not capable enough of protecting tradi- vancement Object. This legal-ization should tional knowledge legally, these documen- be done through few steps which are verifi- cation and validation. When verification tations are sufficient enough to become and validating the result, the Minister must one of prior art search references. The ta- have coordination with other minis- try/institutions and experts in related fields. ble below presented about the documenta- (20) Finally, the last step of traditional tion process of traditional knowledge that knowledge documentation process is main- had been done by national or local authori- taining the data that must be managed by 42 national and/or local government. In addi- ties and organizations. tion, every person should also have the same right to maintaining the data. How- ever, at the end, the Minister should still validate the data again. This maintaining process should be done periodically.” Indonesia had already performed their own traditional knowledge documen- tation on the national scale by an NGO named Sobat Budaya (www.budaya- indonesia.org) Even though the popularity is not as well-known as India's Traditional Knowledge Digital Library, this database had plenty of Indonesia traditional knowl- edge. According to two previous types of documentation system, Indonesia's docu- mentation system included in the public registry which put the traditional knowl- edge on public domain with the main goal is to give defensive protection toward ille- 41 gal patent application. However, due to School of Law, Durham, North Carolina, 2010, p10. 42Badan Penelitian dan Pengembangan HAM 41Jane Anderson, “Indigenous/Traditional Know- Kementerian Hukum dan HAM RI, Note 23., ledge & Intellectual Property”, Duke University pp50-116.

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Table 1. Table of Documented Traditional Knowledge in Indonesia

No. Provinces Implementers The Documented Traditional Knowledge 1. East Nusa Government (NTT Legal Bureau, Tenun Patterns (Sotis Cicak, Pauf Mollo Tenggara Department of Tourism and “Ketupat Berbingkai”, Pauf Mollo “Ketupat Culture) Berwarna”, Buaya Kaif Kauna, Kaif Mollo, Academics (Nusa Cendana University) Kaif Makam, Teke, Kaif Berantai Nukolo, NGO (Mass Media Suara Ramagong, Kaif Koti, Kaif Kauna), Tarian Jai, Tarian Community of Sasando Maker and Likurai, Sasando, Player, Community of Tenun Ikat Craftsmen) 2. Bali Government (Department of Law and Gianyar Village Stone Statue, Songket Bali, Human Rights in Bali, Department Tenun Endek Bali, Celuk Village Silver of Culture) Craft Design, Irrigation System of Subak Academics (Udayana University) Sawah dan Subak Kebun, Wali Dance, NGO (Gianyar Village Statue Babalihan Dance. Craftsmen Community. Community of Silver Jewelry Crafstmen in Celuk Village) 3. North Sumatera Government (Legal Bureau, Serampang Duabelas Dance, Japin Dance, Department of Tourism and Persembahan Dance, Sigale-gale Dance, Culture) Cawan Dance, Sihutur Sanggul Dance, Academics (IPR Centre in University Cikala Pong-Pong Dance, Tak Tak Garo- of Sumatera Utara) Garo Dance, Tor-Tor Naposo Bulung Dance, NGO (Semenda Dance Group. Ulos Biring Manggis Dance, Piso Surit Dance, Craftsmen Community) Uis Dance, Manduda Dance, Faluaya Dance, Maena Dance, Sapu Tangan Dance, Semenda Dance, Ulos/Songket/Sarung Tarutung.

4. Special Region Government (Department of Tourism Traditional Limasan House Architecture, of Yogyakarta and Culture, Business and IPR Pacul Grawang Traditional House Managements Service Centre) Architecture, Kagerti Bumi Ceremony, NGO ( Kulit Maker Bersih Desa Ceremony, Mubeng Beteng Community, Batik Entrepreneur Ceremony, Tedak Sinten Ceremony, Community, Pendok Craftsmen “Surjan” Javanese Clothes, Joglo Building Community, Gamelan Entrepreneur Structure, “Pranoto Mongso” Astronomy and Maker Community) Knowledge, Bedoyo Dance, Jathilan (Kuda Kepang) Dance, Angguk Dance (Kulon Progo dan Purworejo), Ndolalak Dance (Magelang), Jamu, Sungging, Batik Patterns (Kawung, Parang Kusomo, Truntum, Batik Tambal, Batik Pamiluto), Pendok, Gamelan.

5. West Government (Department of Tourism Seren Taun Ritual (Banten Kidul), and Culture, Penganten Tebu Ritual, Pelabuhan Ratu Development Planning Department) people’s cultural tradition, Nyangku Ritual Academics (IPR Centre of Padjajaran (Panjalu, Ciamis), West Java traditional University) medicine, Art, Kuda Renggong, NGO (Saung Angklung Mang Udjo, Kecapi Instrument, Kakawihan Cianjuran Naga Indigenous Group) Music, Cimande Traditional Fractures Treatment, Angklung, Kampung Naga Traditional House Architecture, Kampung Naga Governmental System.

6. Central Government (Department of Tourism Central Sulawesi tenun ikat patterns (Bomba, Sulawesi and Culture) bunga mawar, burung, dan merak), Balia Traditional Healing Technique.

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7. South Sumatera Government (Department of Tourism Songket Cloth, Songket Weaving Art, Dul and Culture) Muluk Traditional Performance, Palembang NGO (South Sumatera Traditional Traditional Furniture Carving Patterns Music “Orkes Rejung Pesirah” (Kembang Jalar, Cucuk Rebung, dan Activists) Kembang Asem), Batanghari Sembilan Music.

8. South Government (Department of Youth, Dundam, Lamut, Andi-Andi, Madihin, Sports, and Culture, and Tourism, Basyasyairan, Bapapantunan, Gamelan, South Borneo Department of Tarbang Haderah, tarbang Ampat, Tarbang Development Planning) Lamut, Tarbang Madihin, Mudki , Academics (Lambung Mangkurai Japin Gambus Music, Kurung-Kurung University Research Centre) Hantak Music, Kintung Music, Main Kuntau NGO (South Borneo Traditional Art Music, Baksa and , Taudat, Activists) Sinoman Haderah Dance, Basisigaan Dance, Bagandut Dance, Japin Sigam Dance, Payung Kambang Dance, Theatre, Wayang Gung Theatre, Abdul Muluk Cabang Mamanda Theatre, Topeng Dance Theatre, Kuda Gipang Carita Dance Theatre, Damarwulan Theatre, Tantayungan, Sasirangan Patterns (Kulat Karikit, Gigi Haruan, Hiris Pudak, Ular Lidi, Kambang Kacang, Bayang Raja Iris Gagatas, Kambang Sasaki, Daun Jaruju, Tampuk Manggis, Bintang), Banjar Traditional Houses (Gajah Baliku, Gajah Manyusu, Balai Laki, Balai Bini, Palimasan, Palimbangan, Cacak Burung, Tadah Alas Joglo, Lanting), Upacara Malanggar Banua, Upacara Aruh Ganal.

To be precise, the database stored in bu- active participation from many people. On daya-indonesia.org website have one dis- the other hand, the lack of validation from tinct feature that acts like a double-edged authorities and experts toward every article sword. This distinct feature is their advan- written become their drawback. The lack tage but also a disadvantage at the same of validation could lead to every docu- time. That feature is freedom of every per- mented traditional knowledge that stored son to participate and contribute to every in this online database have neither credi- traditional knowledge related article on bility or accuracy. Hence, the database this website. On the one hand, the advan- would only become traditional knowledge tage of this system is the number of docu- information sources and preservation mented traditional knowledge would in- without any prior art and legal defensive deed increase in short span of time due to protection abilities.

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Traditional Knowledge Documentation get legal protection later. India had suc- in Other Countries cessfully completed their documentation Traditional knowledge documentation as of traditional medicine and healing reci- one of traditional knowledge defensive pes. This effort is their strategy to prevent protection is not only performed in Indo- malicious patent application based on nesia. Few other countries also use this their traditional knowledge. Their docu- system varying from the public one or the mentation is already well known for its private one to protect their traditional efficiency. It is proven from its ability to knowledge.43 revoke few patents application from the foreign inventor.46 Public Registry System These patents application that has India been revoked due to India’s traditional As a country with second highest popula- knowledge documentation are: tion number in the world, India not only a. The patent application of turmeric has a great amount of human resources used in wound healing by Drs. but also rich in traditional knowledge. Suman Cohly and Hari Har P in The traditional knowledge protection is 1995; done through Patent Law. The Patent b. Basmati Rice patent application by a Law itself legalized in 1970 and by legal- Texas company named RiceTec in izing the Patent (Amendment) Act 2005, 1997; No. 15 India provide a defensive protec- c. The patent application of neem tree 44 tion for their traditional knowledge. extract use by W.R. Grace in 1990. Moreover, there is another law that intended to regulate the sustainable use of South Korea biodiversity and its components. The law The other country that using the method is the Biological Diversity Act 2002, No. of traditional knowledge public docu- 18. Nevertheless, there is another mission menting as its protection is South Korea. behind the legalization of this law which The history of Korean traditional knowl- is to obtain financial profit by way of edge itself already known for approxi- benefit sharing from traditional knowl- mately 5.000 years. These traditional edge utilization.45 knowledge are using about 5.100 plants Furthermore, traditional knowledge species for various purposes like medical protection in India is not done only by treatment and beauty. Other than that, using one method. India also document- there is a knowledge about traditional ing their traditional knowledge so it could kimchi storing during winter that people still using these days.47

43Rohaini, 2015, “Perlindungan Hukum Terhadap Pengetahuan Tradisional Melalui Pengembangan Sui Generis Law”, Fiat Justisia 46 Afrillyana Purba, Note 24, pp169-170. Jurnal Ilmu Hukum, 9 (4), p430. 47Choi Jeongyoon, 2011, Report on International 44Zainul Daulay, Pengetahuan Tradisional: Conference on Utilization of the Traditional Konsep, Dasar Hukum, dan Praktiknya, Jakarta: Knowledge Digital Library (TKDL) as a Model Rajawali Pers, 2011, p122. for Protection of Traditional Knowledge, New 45Note 44. Delhi, India.

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Korean government themselves re- Journal of Traditional Knowledge and alized great amount of potential from other 47 famous journals.50 their traditional knowledge, so in 2004 South Korea integrated documenta- Korean Intellectual Property Office de- tion method had able to nullify a patent cided to create a database to protect Ko- application by Nestle. The patent is about rean traditional knowledge. The docu- fermented vegetable making process was mentation itself was started at 2005 until cancelled only in South Korea due to its 207 and recorded about Korean tradi- similarity with Korean traditional food, tional healing methods.48 kimchi, making process. Additionally, This database name is The Korean Korean not only protecting and preserv- Traditional Knowledge Portal (KTKP) ing their traditional knowledge through that created and managed by KIPO. The documentation alone. The other method Korean Traditional Knowledge Portal they use is by applying Korean traditional scope are included from various Korean knowledge in grand-scale to keep its exis- traditional medicine knowledge from tence worldwide. For instance, there are many fields, documentation of Korean few popular cosmetics companies that and China traditional medicine know- used traditional beauty recipes in their ledge, and diverse articles and patent product such as Amore Pacific, Hankook documents about traditional knowledge. Cosmetics, Rosee, and Somang Cosmet- This database is now containing ap- ics.51 proximately 350.000 documentation and article about Korean traditional healing Private Registry System knowledge, traditional food, and intangi- Peru ble cultural heritage which are presented As a country that located in the in Korean and English.49 Northwestern part of South America, The Korean Traditional Knowledge Peru is a neighbor with few location such Portal is an integrated database system as coastal areas, Andean areas, and with specific scope in each article such as Amazon rainforest. Therefore Peru is medicine, the healing process, disease known as a mega-diverse country because information that linked to each other. The of its great biodiversity. The urge to have documentation processes are not only a national law to protect their traditional performed by identifying old manu- knowledge is indeed already in the scripts, but also from various well-known government plan. It is proved in Article scientific journals in Korea like Korean 63 Legislative Decree 823 1996 on Industrial Property Law. This article is not only explicitly stated about the need for traditional knowledge protection, but 48Mangala Hirwade dan Anil Hirwade, 2012, “Traditional Knowledge Protection: an Indian also the necessity to have a national law Prospective”, DESIDOC Journal of Library & Information Technology, 32 (3), p240 49Lakshmi Poorna, et.al., 2014, “Preservation and 50Note 49. Protection of Traditional Knowledge - Diverse 51Korean Intellectual Property Office, 2011, Documentation Initiatives Across the Globe”, Introduction of Korean Traditional Knowledge Current Science, 107 (8), p1242. Portal, Seoul, Korea Selatan.

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that regulating traditional knowledge search, also maintaining and keeping the documentation system.52 traditional knowledge that owned by In 1993, the government legalizes a indigenous peoples.54 national law that becomes an important There are three different type of milestone toward development of Peruvian traditional knowledge doc- traditional knowledge national protection. umentation system in term of their That law is called Law 27811 and defensive protection which are Public resulted from research program done by National Registers, Confidential National International Cooperative Biodiversity Register, and Local Register. In public Group (ICBG). ICBG working hand in national registers, some of the traditional hand together with Peru National History knowledge information is kept in a Museum, the Cayetano Heredia systematic form and could be accessed by University of Peru, Washington patent offices around the world. University, Serle Pharmaceuticals, and INDECOPI’s role is to provide additional Aguaruna Indigenous People that information for certain authorities that represented by the National Confed- need it to increased their prior art search eration of Amazonian Nation-alities effectiveness. The second type is (CONAP). Furthermore, the other goal of Confidential National Register which this program is not only to make a regulated in Law 27811. The purpose of national law about traditional knowledge this system is to keep the secrecy of protection but also to do some research certain traditional knowledge due to and cultivation for Peru traditional herbal certain reason. In order to actualize this plants.53 mission, INDECOPI would protect the The traditional knowledge doc- traditional knowledge and prohibit it from umentation model that have been third-party access. Local Registers is a performed by Peru according to Law traditional documentation method where 27811 is a documentation system where it is created, managed, and utilized by the access to the database is flexible and their own indigenous group.55 distinct from each other. The result from traditional knowledge documentation The Role of Traditional Knowledge activities is arranged in a database with Documentation in Its Protection limited access. The only party that has Traditional knowledge documentation is full access to it is the National Institute not an activity that has the mere benefit of for the Defense of Competition and collecting and registering traditional Intellectual Property (INDECOPI). This knowledge. According to WIPO, there right is granted to INDECOPI because are at least few other benefits from the they have a responsibility to assist every activities of documenting traditional patent application review, prior art knowledge:56

52Susanna E.C., et.al., 2004, “The Protection of Traditional Knowledge in Peru: A Comparative 54Note 52, p782. Perspective”, Washington University Global 55Note 52, pp783-78 Studies Law Review, 3 (3), p772. 56 World Intellectual Property Organization, 2016, 53Note 52, p773. WIPO/PUB/TK/9, pp1-2.

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1. As a traditional knowledge protection development would enhance and and preservation method. broaden indigenous peoples and local In 2003, UNESCO Convention for the communities (IPLC’s) knowledge, Safeguarding of the Intangible Cultu- vision, innovation, and creativity. It is ral Heritage obligated the parties to also will increase the knowledge of the document their traditional know-ledge third parties such as researcher and in order to protect and keep its investor. existence. The vital purpose of tradi- Traditional knowledge documenta- tional knowledge documentation is to tion becomes a notable thing to do be- ensure that every traditional know- cause of its ability to act at the same time ledge use and development able to as traditional knowledge preservation keep its originality. method for next generation and protecting 2. Protecting the sacred traditional know- it as a property in Intellectual Property ledge Rights. Furthermore, as one of the way to The processes of traditional know- protecting traditional knowledge legally, ledge documentation itself sometimes traditional knowledge documentation is become a sensitive topic for certain categorized as defensive protection.57 traditional knowledge, particularly the The term of defensive protection it- sacred ones. These kinds of traditional self is referring to a mechanism of protec- knowledge usually only shared tion with its purpose to prevent Intellec- exclusively among certain people in an tual Property Rights misuse by the third indigenous group. Even people who party toward biodiversity and traditional have rights to know it is regulated by knowledge, particularly in traditional their adat law. Traditional knowledge medicine.58 Defensive protection will not documentation has the capability to granted any rights like in any other Intel- restrict the access to that knowledge. lectual Property Rights regime, but it is Moreover, in intellectual property aiming to avert and cease the rights that rights perspective, the effort of belong to un-rightful parties over a tradi- documenting traditional knowledge tional knowledge.59 would prevent illegal use of traditional Traditional knowledge defensive knowledge by third-party. protection involved helpful preventive 3. Research and development resources acts in order to make sure that no one ac- Traditional knowledge documentation quired Intellectual Property Rights in is not only beneficial to traditional such an unfair way. Three models of de- knowledge preservation but also fensive protection are using a database as beneficial to the science world. Tradi- prior art, protecting the secrecy of tradi- tional knowledge that has been tional knowledge, and application of spe- documented would indeed useful for cial condition which is public disclosure research and development about it. For 57Rohaini, Note 43, p430. instance, a further research about 58Agus Sardjono, Hak Kekayaan Intelektual dan traditional medicine. In addition, Pengetahuan Tradisional, Bandung: P.T. traditional knowledge research and Alumni, 2010, p284. 59Rohaini, Note 43, p430.

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of origin as a condition to earn an Intel- larity with traditional knowledge is not lectual Property Rights.60 qualified because it contains no novelty. The protection through defensive Especially if the patent application is mechanism will assure unlimited use of compared with the certain traditional traditional knowledge for its own indige- knowledge that becomes their direct or nous people group as its owner. This pro- indirect invention resources. Hence, tradi- tection method could be manifested by tional knowledge documentation plays a registering and documenting the existing major role particularly for patents au- traditional knowledge. As a matter of thorities to cross-checking patent applica- fact, a certain defensive protection form tion. By the existence of traditional has been a part of Intellectual Property knowledge database that could take part system for a long time. Mostly in this sys- as prior art so an invention novelty aspect tem, traditional knowledge should be could be revoked. Additionally, tradi- placed and stay in public domain in the tional knowledge documentation has be- first place.61 come one of the most effective ways to Disclosure of origin is a form of de- prevent bio-piracy.63 fensive protection in traditional knowl- Nevertheless, the principle of edge documentation. Defensive disclo- documenting traditional knowledge sure related to various information and sometimes caused a growing concern re- documentation that have been made so it garding the difficulties to control and re- could be accessed easily by the public strict traditional knowledge dissemination and act as the prior art. Moreover, it also among people. Furthermore, the impor- served to prohibit further illegal claim tant role that held by traditional knowl- over a traditional knowledge. Defensive edge documentation as a solution to tradi- disclosure would also provide any evi- tional knowledge exploitation shows that dence needed to facilitate invention re- traditional knowledge legal protection viewing process, discover any other par- system still dominated by Western Law ties that already use it, and as a proof and not indigenous group customary law. whether the patent application has been On the other hand, protecting traditional publicly used in more than 1 year before knowledge by using documentation the application.62 method still considered as the most rele- The high number of the traditional vant protection method culturally, legally, knowledge-related patent application had and commercially. On top of that, some aroused a significant concern in countries WIPO delegations even find out plenty of that own traditional knowledge. Many indigenous peoples group already realized believe a patent application that has simi- the importance of traditional knowledge documentation and managed it internally 64 60Loretta Feris, 2004, “Protecting Traditional within the community. Knowledge in Africa: Considering African Approaches”, African Human Rights Law Journal, 4, p246. 61David R.H., Note 3, pp412-413 63Manuel Ruiz, Note 6, p5. 62Stephen A.H. and Justin W.V., Note 32, pp24- 64Johanna Gibson, 2004, “Intellectual Property 25. Systems, Traditional Knowledge and the Legal

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However, there are some limitations Generally speaking, the limitation in performing this defensive protection. of defensive protection itself lie in public Firstly, the use of a database that most disclosure of origin condition that not people believe to be the most effective regulated in World Trade Organization way to provide information to patents au- (WTO) Trade Related Intellectual Prop- thorities turns out to be not capable of erty Rights (TRIPs) Agreement. TRIPs do revoking traditional knowledge patent not require the availability of disclosure application directly. It is because in order of origin in order to accept a patent appli- to prove the similarity between an inven- cation. On the other hand, the absence of tion to certain traditional knowledge will this document also does not cause a pat- need a lot of additional information. Sec- ent application become invalidate or re- ondly, in most of the time, the documen- voked. Hence, the government is not tation activities itself bring no benefit to obliged to adopt to their national law indigenous peoples as its owner other about patent applicant obligation to at- than preserving it. Finally, mainly be- tached disclosure of invention origin cause its specialty to placed traditional document in their application to the pat- knowledge in public domain, traditional ent office. This indeed leads to the small knowledge documentation will indirectly number of an existing rule that clearly prohibit someone from the indigenous gives patent applicant responsibility to group to file the application for intellec- enclosing the document into their patent tual property rights individually.65 application.67 Additionally, keeping the secrecy of a traditional knowledge only by using da- The Commercialization of Traditional tabase alone is not an easy thing to do. Knowledge Database For instance, if a traditional knowledge is The act of traditional knowledge docu- already known by few indigenous group mentation could be named as an impor- member, keeping its secrecy is indeed a tant step that must be done to prevent any tough job. In fact, there is a considerable misappropriation. However, many people amount of traditional knowledge that think that by documenting traditional known and shared not only within the knowledge would increase the risk of un- community but also with other indige- authorized takings to happen. Moreover, nous communities outside the circle. traditional knowledge documentation re- Nonetheless, if a traditional knowledge is sult in form of database that could be ac- only known by a single person in the in- cessed publicly would give no financial digenous community, the risk of its ex- benefit either to the indigenous people as tinction will become even greater unless its owner or to the country where it be- it is documented in such way to keep its longs. Many believe a solution for this secrecy.66 problem is by commercializing the data-

Authority of Community”, E.L.P.R., 7, pp284- 285. 65Loretta Ferris, Note 60, p247. 66Note 60. 67Note 60.

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base resulted from traditional knowledge Rights could also reach to the extent of documentation.68 forbidding indigenous people to access Nevertheless, this advice about their own knowledge because the data- commercializing traditional knowledge base contained that information already information is not fully accepted by in- bought by other parties.70 digenous group communities. Database On the other hand, many believe commercialization is organized in form of that traditional knowledge database granting third party access with a certain commercialization would bring advantage amount of fee as its feedback. Despite the to the country where traditional knowl- fact that there might be some parties who edge belongs and the indigenous commu- gladly pay it, this idea is against indige- nity as its owner. The activities of docu- nous people life principle of traditional menting traditional knowledge will knowledge. Indigenous people assume broaden the chance to explore every that Intellectual Property Rights regime is uniqueness in every existing traditional the one that should be protecting their knowledge. Database commercialization right to not sell their traditional knowl- will also increase social awareness re- edge. Because the true essential meaning garding traditional knowledge protection of traditional knowledge is to be accessed such as, to reduce the number of biopi- freely for humankind wellness. Whilst racy. Actually, the real advantage of Intellectual Property Rights is related so commercialization method is the suitable much to the monopoly right over an intel- amount of appreciation and recognition lectual process result. This concept is to- that given to indigenous people and pro- tally strange for indigenous people who tecting traditional knowledge from biopi- unfamiliar with it.69 racy at the same time. However, it is The other arising concern is the should be done with a condition that re- lack of appreciation given to indigenous quiring every party to respect the essen- people by database buyer and user. There tiality of traditional knowledge by not is a huge demand from indigenous com- exploiting natural resources. In addition, munities to get moral recognition from the conservation should be always man- companies that use their traditional aged in order to keep the existence of tra- knowledge. Moreover, the other reason is ditional knowledge.71 that Intellectual Property Rights’ mo- Furthermore, the other benefit from nopolistic trait that probably could steep traditional knowledge database commer- up the chance of traditional knowledge cialization is its financial profit the owner being exploited without any indigenous could be acquired. By doing traditional people participate in its use. This mo- knowledge database commercialization, nopolistic trait of Intellectual Property there is a room for the use of a profit- sharing system. This system will help 68Javier Garcia, 2007, “Fighting Biopiracy: The government funding the further research Legislative Protection of Traditional Know- ledge”, Berkeley La Raza Law Journal, 18 (2), and developing traditional knowledge po- p24. 69Abha Nadkarni and Shardha Rajam, Note 12, 70Note 12, p8. p8. 71Note 12, p9

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tential to its maximum level. This advan- verification from government nor the ex- tage could also be used for protecting the perts which is against the Law 2017 No. 5 natural resources and participating in in- on Cultural Advancement. creasing indigenous people welfare. It could be summarized that the commer- REFERENCES cialization of traditional knowledge data- base will bring plenty benefit if it is done Abbott, Ryan. 2014. “Documenting properly. Thus, not only biopiracy could Traditional Medical Knowledge”. World be prevented but also the indigenous peo- Intellectual Property Organization. ple would acquire their moral right over Adya Paramita P. 2008. “Sistem the traditional knowledge and get finan- Registrasi Sebagai Alternatif Dalam cial benefit from it.72 Memberikan Perlindungan Atas Pengetahuan Tradisional (Studi Kasus CONCLUSION Sengketa Pengetahuan Tradisional In the Intellectual Property Rights point Antara Amerika Serikat dan India”. of view, traditional knowledge is one of Semarang: Magister Ilmu Hukum the properties that have difficulty to be Universitas Diponegoro. protected because of its distinct and Anderson, Jane. 2010. unique features. One of its protection “Indigenous/Traditional Knowledge & methods is by documenting it into a data- Intellectual Property”, Duke University base so it could actively safeguard tradi- School of Law, Durham, North Carolina: tional knowledge. Traditional knowledge Duke University School of Law. documentation system that used by Indo- nesia is external registries which are done Aryanto, Heri. 2014. “Pemanfaatan outside the indigenous communities and Pengetahuan Tradisional Indonesia the information about traditional know- Berdasarkan Potensi Daerah Sebagai ledge is placed in public domain. Tradi- Modal Pembangunan”. Jurnal Hukum tional knowledge is already regulated in dan Pembangunan. 44 (2). few national law. However, in The Law Asiska Riviyastuti. 2016. 2014 No. 28 on Copyrights and The Law http://www.solopos.com/2016/03/08/umk 2016 No. 13 on Patent need to be restated m-solo-pemkot-solo-dorong-umkm-solo- clearly about the parties who have au- urus-sertifikat-hak-cipta-698946 thorities to documenting traditional [retrieved: 5th September 2017]. knowledge. Furthermore, in the imple- Badan Penelitian dan Pengembangan mentation, traditional knowledge docu- HAM Kementerian Hukum dan HAM RI. mentation is done by an NGO under the 2013. Perlindungan Kekayaan Intelektual name of Sobat Budaya. Nevertheless, this Atas Pengetahuan Tradisional dan documentation could not be used as de- Ekspresi Budaya Tradisional Masyarakat fensive protection of traditional know- Adat. Bandung: P.T. Alumni. ledge because the lack of validation and Clark, Susanna E, Isabel Lapena, and Manuel Ruiz. 2004. “The Protection of 72Note 12, p9.

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