American University Washington College of Law Digital Commons @ American University Washington College of Law Traditional Knowledge and Culture Public Impact 1-1-2009 Traditional Culture: A Step Forward for Protection in Indonesia Peter A. Jaszi American University Washington College of Law, [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/ pijip_trad_knowledge Part of the Intellectual Property Commons Recommended Citation Jaszi, Peter I. Traditional Culture: A Step Forward for Protection in Indonesia - A Research Report. Jakarta, Indonesia: Institute for Press and Development Studies, 2009. This Book is brought to you for free and open access by the Public Impact at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Traditional Knowledge and Culture by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. I. INDONSESIAN TRADITIONAL ARTS – ISSUES ARTICULTED BY ARTISTS AND COMMUNITY LEADERS AND POSSIBLE RESPONSES A. Background of the project The question of whether law can intervene usefully in support of the traditional arts is not a new one. In fact, it is fundamental to the post- colonial legal discourse, which emerged in its own right in the 1970’s, in response to more and more new states taking account of their national resources—including intangible ones. The international discussion that was launched more than 40 years ago continues to this day, with the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization providing much of the leadership. And over the last four decades, various nations have made efforts to promote the interests of the traditional arts and arts communities through local legislation, usually under the general rubric of intellectual property (IP).1 In Indonesia, the 1982 law on Copyrights included provisions declaring state ownership of traditional cultural artifacts including stories, songs, handicrafts, and dances, and these were carried forward into (most recently) Article 10 of the Copyright law of 2002 (Law No.19/2002). However, this Article has never been implemented through specific regulations or additional legislation. As a result, it has had no appreciable influence on the actual functioning of Indonesian traditional arts systems. This project described in this report was originally conceived, in early 2005, as a contribution to the discussion of possible ways to implement Article 10. Although the focus of debate has shifted somewhat in the last several years toward an emphasis on the prospects for new, sui generis legislation relating to the traditional arts (along with other aspects of the country’s intangible cultural heritage),2 the general philosophical approach of the project has remained the same throughout. That approach can be summarized as follows: 1 A brief review of the issue’s history can be found in Monika Donman, Lost in tradition? Reconsidering the history of folklore and its legal protection since 1800, in INTELLECTUAL PROPERTY AND TRADITIONAL CULTURAL EXPRESSIONS IN A DIGITAL ENVIRONMENT (Christoph Beat Graber & Mir Buui- Nenova eds., 2008). A more exhaustive treatment by Agnes Lucas-Schlotter appears as Part III, Section 4 – Folklore, in INDIGENOUS HERITAGE AND INTELLECTUAL PROPERTY: GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND FOLKLORE (Silke von Lewinski, ed., 2d ed. 2008). A useful list of legislative initiatives in national law can be found in Daniel J. Gervais, Spiritual But Not Intellectual: The Protection of Sacred Intangible Traditional Knowledge, 11 CARDOZO J. INT’L & COMP. L. 467, 490-91 (2003). Additionally, WIPO has collected relevant legislative texts at http://www.wipo.int/tk/en/laws/folklore.html#special. 2 This new focus is apparent in the new draft law for Intellectual Assets Protection and Utilization of Traditional Knowledge and Traditional Cultural Expression (TK-TCE) that was developed by the Directorate General of Laws and Human Rights with inputs from the Department of Culture and Tourism and others, and unveiled in July 2008. 1 Any legal intervention to support the traditional arts should be focused on the artists who practice those arts and the communities in which such practices occur. Specifically, IP initiatives in this area should help assure that artists enjoy the economic and cultural conditions that make it possible for them to continue producing new work within the traditions in which they practice, and to pass those traditions along to succeeding generations. Any new IP or IP-like provisions for the traditional arts must be carefully balanced, since contemporary artists working within established traditions needed both protections from unfair exploitation by others and a reasonable amount of freedom to innovate. Other, less intrusive legal mechanisms exist to assure that outstanding examples of particular traditional artistic genres are preserved for future enjoyment and study. Such preservation is not the function of IP. To restate and localize this premise in a single sentence: If there is a role for IP in support of the traditional arts in Indonesia, it is to contribute to the conditions that sustain the everyday processes by which those arts have flourished in the past, and continue to thrive today. The team of experts assembled for the project also was guided by the statement of goals announced by the WIPO IGC in its 2006 draft of “The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles” (WIPO/GRTKF/IC/9/4). In particular, this document includes mandates to “recognize value, promote respect; meet the actual needs of communities; prevent misappropriation of traditional cultural expressions/expressions of folklore; empower communities; support customary practices and community cooperation; contribute to safeguarding traditional cultures; encourage community innovation and creativity; promote intellectual and artistic freedom, research and cultural exchanges on equitable terms; contribute to cultural diversity; promote community development and legitimate trading activities; preclude unauthorized IP rights; and enhance certainty, transparency and mutual confidence.” Consequently, the project team emphasized the importance of recognition and support to the dynamic communities in which the traditional arts are practiced. The individuals who made up the project team include Indonesian and foreign experts with a variety of relevant specialties, including performing arts, music and musicology, human rights, law, anthropology, media studies, and journalism. They include Jane Anderson (New York University), Lorraine Aragon (University of North Carolina), Ignatius 2 Haryanto (Lembaga Studi Pers dan Pembangunan (LSPP)), Peter Jaszi (American University), Abdon Nababan (Aliansi Masyarakat Adat Nusantara -- AMAN), Hinca Panjaitan (Indonesia Law and Policy Centre (IMPLC)), Agus Sardjono (University of Indonesia), Ranggalawe Suryasaladin (University of Indonesia), and Rizaldi Siagian (Yayasan Karya Cipta Indonesia– (YCKI)).3 Sponsored by the LSPP and the Washington College of Law, American University, Washington, D.C., with support from the Ford Foundation-Indonesia, team members made series of extended site visits to communities where the Indonesian traditional arts are practiced: in Central Java and Bali during July 2005;4 South Sulawesi, West Kalimantan, Timor, Flores during August and September 2006; and North and West Sumatra in January and February 2007. The team members brought various kinds of expertise to the project, but they did not rely primarily on their prior knowledge as they tried to assess the legal needs of Indonesian traditional artists and arts communities. Instead, in keeping with their shared philosophical approach and the WIPO guidance outlined above, the team members took advantage of their many field visits to learn from the people with the most practical knowledge of actual conditions: working artists and the leaders of communities in which the traditional arts are practiced. In interviews, the team sought to elicit information about the state of the traditional arts in general, and about the problems faced by traditional artists in particular. Team members did not ask the artists and community leaders (all non-lawyers!) who were so generous in speaking with us about their specific preferences for new legislation, as such. Instead, we tried to get their help in assessing the strengths and weaknesses of traditional arts systems as they currently function. Where possible, team members also interviewed various secondary participants in traditional arts systems (government officials, businesspeople, lawyers, curators, journalists, broadcasters, etc.), to ascertain their attitudes. But the primary emphasis was always on the primary participants—the artists and community leaders themselves. In this report, we summarize the project team’s findings and—based upon them—make some suggestions about the form that new legislation in this area might take in order to build constructively on what already exists.5 3 Team members Aragon and Leach have recently published an article that draws substantially on the work of the project. Lorraine V. Aragon & James Leach, Arts and owners: Intellectual property law and the politics of scale in Indonesian arts, 35 AM. ETHNOLOGIST