International Journal of Research and Review Vol.7; Issue: 3; March 2020 Website: www.ijrrjournal.com Research Paper E-ISSN: 2349-9788; P-ISSN: 2454-2237

Study Assessment Legal Law and Protection of a Regional Culture

Dina Andiza, Onny Medaline

Faculty of Social Science, Universitas Pembangunan Panca Budi, Medan, , 20122

Corresponding Author: Onny Medaline

ABSTRACT has customs, customs, and cultural diversity with its own regional characteristics. This Study discussed about traditional The cultural diversity of this region knowledge (PT) and traditional cultural is clearly seen in geographical, ethnic, expressions (EBT) is a state asset that is very socio-cultural, religious and belief aspects. potential for prosperity nation because it has Indonesia has a rich culture, both historical high economic value, but ownership many recognized (claimed) by foreign parties without heritage and traditional knowledge with any benefit sharing, resulting in a conflict of enormous potential to produce various kinds interest between developed countries and the of works and traditions from all regions in state developing like Indonesia. Our weakness Indonesia from Sabang to Merauke where in developing the protection system there is no there are more than 900 ethnic groups proper protection system and adequate and spread across 33 provinces in Indonesia. limited data, documentation and information Traditional works of art, traditional about PT and EBT. The struggle of Indonesia as techniques that have long been "alive" in one of the developing countries for legal traditional societies, are considered as assets protection to continue form a proper protection of economic value. Traditional Knowledge system for traditional knowledge at the and Expression of Traditional Culture is an international level in 2000 IGC-GRTKF was formed(Intergovernmental Committee on invaluable wealth of Indonesia as a national Genetic Resources, Traditional Knowledge, and identity, so that the culture of this region Folklor) by WIPO to discuss the possibility of can be juxtaposed with culture and holding a binding agreement, in an effort the international work and is a state asset that is law to protect internationally, then at the second to none national level The government is conducting a In the Preamble of the 1945 discussion on the DraftLaw (RUU) concerning Constitution it has been confirmed, the SDGPTEF (Genetic Resources, Traditional purpose of the establishment of the Knowledge and Expression of Traditional Indonesian state, namely to protect all of Culture. While which already exists, namely Indonesia's bloodshed and promote public Law Number 19 of 2002 concerning Rights welfare. Referring to the objectives of the Cipta is not fully operational, because there is no regulation Implementation. country, the duty of the state is to protect and seek public welfare. In this case, among Keywords: Assessment Legal, Regional Culture, others, by providing protection to traditional Draft Law knowledge and culture, belonging to the Indonesian people since time immemorial. INTRODUCTION Such protection is very necessary to Indonesia as one of the developing prevent products belonging to Indonesian countries, and is an archipelagic country has people, especially those based on traditional more than 20,000 islands where each island knowledge, so that their ownership is not recognized without permission by other

International Journal of Research and Review (ijrrjournal.com) 87 Vol.7; Issue: 3; March 2020 Dina Andiza et.al. Study assessment legal law and protection of a regional culture countries. Therefore, these products need The reluctance of developed legal protection. Moreover, it is clear that all countries to recognize the knowledge and wealth based on traditional culture has very cultural expressions of developing countries high economic value. is because they do not want to lose access to These efforts will certainly encourage an the knowledge and expression of traditional increase in the Indonesian economy and can culture of local people, which has proved to improve people's welfare. be very beneficial for them, both Regarding its utilization by foreign economically and knowledgeably and parties, actually the community is open and technologically. not possessive. This is due to the orientation The same thinking above, described of the local community, which has not fully by Agus Sardjono by saying, that developed thought of material happiness, but rather countries have applied unfairly in the use of spiritual happiness. 8 However, developing traditional knowledge of local communities countries, such as Indonesia that have these in third countries. In this case, Sardjono assets, do not participate in enjoying the refers to the case of taking intellectual economic benefits of using these traditional property of the Indonesian people, in the knowledge. field of medicine, which later claimed itself, The struggle of developing countries as an inventor of pharmaceutical technology for legal protection of biological resources that was actually taken from knowledge that and traditional knowledge emerged with the has been practiced by traditional signing of the 1992 Convention on communities on Java. Biological Diversity (CBD). Since that time By taking an example in the field of various meetings at the world level, medicine, it is proven that it is now especially within the framework of the protection of the knowledge and traditional World Intellectual Property Organization culture of the Indonesian people, as (WIPO), have been held to formulate intellectual property is increasingly felt and appropriate protection systems for these important. This awareness arises because of traditional knowledge. the process of abuse (missappropriation) Aim idea of utilizing the Intellectual towards traditional knowledge of the Property Rights (IPR) system, the Sui Indonesian people, which is carried out by generis system, the documentation system developed countries. and the prior informed consest system to The existing abuse process starts protect traditional knowledge continues to with a one-sided acknowledgment that the roll on, but it has not yet been achieved. knowledge of former local communities, for Although in the CDB it has been mentioned example in the field of medicine, is about the protection of traditional recognized as a result of their findings. And knowledge. But until now there has been no furthermore, the findings are requested for agreement between CDB participating patent protection which provides economic countries. benefits to its holders through monopolization of the relevant LITERATURE REVIEW pharmaceutical products. The emergence of injustices felt by In addition to the reasons for abuse developing countries occurs because their and injustice, awareness to protect the knowledge and expressions of traditional knowledge and expressions of traditional culture are not protected, as is intellectual culture is also due to the fact that the property in developed countries. Meanwhile Intellectual Property Rights (IPR) system is developed countries try to protect their not fully relevant to protect traditional intellectual property from abuse, by cultural knowledge and expressions, as pressuring countries in the third world, to intellectual property. protect their intellectual property rights.

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The irrelevance of the IPR system guarantee was more unproven and the for efforts to protect cultural knowledge and theory began to be abandoned. Since the expressions is caused by various things. 1970s, alternative ideas for legal reform First, the IPR system encourages the process have been born, namely the devolopment of utilizing biological resources on a large model, which was initiated by Philippe scale, when the investment is concerned; it Nonet and Philip Selzenik. actually requires large-scale exploitation of The strength of the devolopment biological resources. model lies in its understanding of the Second, even though the IPR system complexity of the reality of the relationship allows for increased use of technology and between law and society. By the theory of knowledge, traditional medicine to a higher modernization, the complex realiatas, it is level. But it cannot prevent the occurrence reduced to very simple, so that the theory of abuse and commercialization carried out fails, making predictions about the role of by the pharmaceutical industry. Therefore, law in the development and change of as an alternative, a sui generis protection society. 18 system is needed for traditional cultural The basic concept that underlies knowledge and expression. legal reform in the field of protection of With a system of protection on the knowledge and expression of traditional basis of sui generis legislation, the home culture, is first to be initiated in the study of country can protect the knowledge and responsive law. The views of Nonet and expression of traditional culture from the Selzick, look at the law from the point of misuse of other parties. Included in this sui view of sociological jurisprudence and the generis protection system, is regulating the realist jurisprudence. Both of these legal problem of foreigners' access to knowledge thoughts, seeing and understanding the law and expressions of traditional culture. empirically with a focus more emphasis, are not merely on the boundaries of formalism, 2.1. The Law Teachings Are Responsive but rather expanded, and include the role of To The Protection of Knowledge and policies and legal decisions in development. Expression of Traditional Culture Nonet and Selzick are fully aware of the Facing the current crisis of thought complex reality of the relationship between and practice of protecting knowledge and law and society. expressions of traditional culture, the team There in lies the strength of their felt the need to provide an analysis of the model development. This makes us, model of legal reform in the transitional members of the team, argue that the more period facing the Indonesian people today. solid a legal thought is based on reality, the Developed countries such as the greater the strength of the law, to the desired United States overcome the crisis of thought change of society. and practice of law by choosing the theory Legal analysis of legal protection of modernization. This theory has triumphed reforms on the knowledge and replication of since the 60s, but began to recede since the traditional culture, as stated above, is 70s. Modernization theory, simply says, associated with sociological thinking developing countries will achieve a level of legal development enjoyed by developed or 2.2. Legal Relations and Legal Principles modern countries before, as long as they for the Protection of Knowledge and want to follow the path taken by these Expressions of Traditional Culture developed countries. The essential purpose of responsive If developing countries are able to law in relation to the protection of remove obstacles to modernization, then the traditional knowledge and traditional guarantee of becoming a developed country culture, is to direct the law to the realization will be assured. But then it was proven, the of the juridical values and will of the

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Indonesian people, in accordance with the It must be realized that traditional Pancasila legal ideals and the 1945 knowledge and expression of traditional Constitution, should be justice for the culture is a part of cultural heritage that can community. provide motivation to increase intellectual The law (rechtsidee) is a construct of creativity for the community, even through thought (idea) that directs the law to the intellectual creativity that can improve the desired legal ideals. Rechtsidee serves as a economy of the people, so that protection guiding star for the realization of the ideals from the arbitrariness of foreigners who of a society. From this recipe, a concept and want to take advantage of Indonesian legal politics are developed in the life of a culture is needed. nation.23 Or in other words, legal protection The main task of the government, in against cultural knowledge and expression this case the Ministry of Culture and should be based on legal concepts and Tourism, the Department of Law and politics, for the benefit of society. Human Rights and related institutions, The law is apriori normative and needs to carry out conservation which constitutive, which is a transcendental includes efforts to excavate, preserve, prerequisite that underlies every positive develop and protect the cultural treasures of law that is dignified. Without legal ideals, ethnic groups in Indonesia. there is no law that has a normative Efforts can be made to protect character. Apriori in this connection is traditional culture as a manifestation of understood as an ontological belief nationalism, one of which can be taken regarding the concept of justice adopted by through inventory. Inventory or a society. documentation of traditional culture is an In line with the above quote, activity of collecting data on a traditional Radruch said the ideals of the law culture in a region, which in the presence of functioned as a constitutive basis for the these data traditional culture of a society can formation of law. The function of the ideals be inventoried. Inventory itself can be of law in this sense are: (1) without legal carried out in various forms, including the ideals, all legal rules lose their meaning as issuance of written knowledge inventories law; and (2) the ideals of the law are (in the form of books), or can also be in the regulative benchmarks for judging fairness form of inventory using databases on or unfairness of a positive law.25 computers. Next, the understanding of the principle of Considering that most of the people law and its relation to the ideals of the law who develop activities based on traditional in the meaning of the law will be examined, culture are people who are still far from the for the protection of knowledge and culture of writing, inventory cannot only expressions of traditional culture, for rely on the role of local communities. justice, public benefit, and legal certainty. Moreover, the local community itself is not In connection with legal reform too concerned about claims by foreign efforts, for the protection of knowledge and parties. Therefore, the role of the expressions of traditional culture, it was government is very important in this explained that laws that were not based on inventory, which certainly does not leave legal principles had an adverse effect on the the role of local communities as traditional people who possessed the knowledge and cultural informants. Concretely, it should be expression of traditional culture. Here the the government who plays an active role in legal principle is understood, as one of the carrying out this inventory activity. basic legitimacy of protection for the Inventory is a step in Defensive traditional community of the owner of the protection. This defensive protection is knowledge and expression of the relevant intended as an effort to prevent unlawful use culture. of the traditional culture of a society. The

International Journal of Research and Review (ijrrjournal.com) 90 Vol.7; Issue: 3; March 2020 Dina Andiza et.al. Study assessment legal law and protection of a regional culture steps taken by various countries and document (prior art) when there is a claim communities in utilizing this positive against the traditional knowledge in protection are by building databases related question. Thus an inventory of the country's to the culture of their country. Thus, this culture provides several advantages database can be used as a comparison including:

Table 1 Indonesian Cultural Assets Claimed by Other Parties No. Types Of Cultural Assets The Country / Company Claims And Regions 1 , Jawa Adidas 2 Ancientcodex, Riau Malaysia 3 Ancient codex, west sumatera Malaysia 4 Ancient codex, South Sulawesi Malaysia 5 Ancient codex, Sultra Malaysia 6 , west sumatera Malaysia Citizen 7 Bajak, Central Java Deutch Citizen 8 Sambal Petai, Riau Deutch Citizen 9 Sambal Nanas, Riau Deutch Citizen 10 Tempe, Jawa Several Foreign Companies 11 Rasa Sayang-Sayange, Maluku Malaysia 12 Reog Dance, Ponorogo Malaysia 13 song, Riau Malaysia 14 Injit-Injit Semut Song, Jambi Malaysia 15 music instrument, Jawa Malaysia 16 Kuda Lumping dance , Jatim Malaysia 17 Piring dance , Sumbar Malaysia 18 Kakak Tua song, Maluku Malaysia 19 Anak Kambing Saya song, Nusa Malaysia

RESULTS AND DISCUSSION Council to review several articles in TRIPs Efforts made in the Protection of in TK protection efforts. SDGPTEF In 1996 the WIPO approved a Treaty that protects EF actors (WIPO Performance a. International level and Phonogram Treaty). In 1997 the WIPO- In 1967 an Amendment to the Berne UNESCO World Forum on Protection of Convention was carried out in article 15.4; Folklore was held which approved an action provide international protection against plan: Expression of Folklore (EF). In 1976 in a. There needs to be an international Tunis Model Law the Copyright for standard of legal protection for EF. Developing Countries included the b. There needs to be a balance of protection of national protection specifically acquisition between local communities for EF. In 1982 WIPO and Unesco as EF managers and users for established a protection regulation model commercial purposes. for EF. In 1978 the WHO first recognized In 1999 WIPO held a regional that there was relevance between traditional consultation on EF protection, for African medicines and pharmaceutical products. countries carried out in March 1999, for the In 1992 the Rio de Janeiro Asia-Pacific countries in April 1999, for declaration was approved, known as the Arab countries in May 1999 while for Latin Convention on Biological Diversity (CBD), American countries and Caribbean in the which had recommended the existence of month of June 1999. benefit sharing for commercial use of In 1998-1999 WIPO conducted a natural resources. In the TRIPs Agreement, Fact Finding Mission to 28 countries to although it does not explicitly regulate the identify the relevance of IPR and SDGPTEF issue of SDGPTEF, the linkages between and hopes for these countries and their local SDGPTEF and TRIPs standards are debated communities for protection that could issues, and in 2001 the Doha WTO benefit them. Ministerial Conference instructed TRIPs

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In 2000 WIPO with said that the regulation of intellectual recommendations from the General property rights in TRIPs has not optimally Assembly formed the Inter Governmental accommodated the protection of traditional Committee on Intellectual Property and intellectual property. GRTKF, which until now has convened Indonesia has enacted Law Number 19 of until X but there has not been a significant 2002 concerning Copyright, which Article result in relation to SDGPTEF protection. 10 reads: (1) The State holds Copyright on prehistoric b. National level: heritage works, history, and other national a) Law Number 5 Year 1994 concerning cultural objects. Ratification of the United Nation (2) The State holds the Copyright on Convention on Biological Diversity. folklore and the results of folk culture that b) Law Number 7 of 1994 concerning are shared, such asstories, stories, fables, Ratification of the WTO including the legends, chronicles, , handicrafts, TRIPs Agreement. choreography, dances, calligraphy, and c) Law Number 19 of 2002 concerning other works of art. Copyright, in Article 10 provides Explanation: protection for the nation's cultural In order to protect folklior and other heritage. folk cultural results, the Government can d) The Government is conducting prevent monopolies or commercialization as discussions regarding the Draft Bill on well as destructive actions or commercial SDGPTEF. use without seizing the Republic of Principles of Mind Regarding the Indonesia as a Copyright Holder. This Regulations on the Law of the Protection of provision is intended to avoid the actions of Regional Culture. In order to preserve foreign parties that can damage the value of traditional culture which is the identity of the culture. the nation and can save the expression of Folklore is intended as a collection regional culture so that it is not claimed by of traditional creations, whether made by foreign parties, legal rules are needed that groups or individuals in society, which can protect it. In accordance with its show other social identities and their culture allotment needs, the law on regional cultural based on standards and values that are protection includes the law of law as well as spoken or followed from generation to private law. With public law, it is expected generation, including: that the State or Government based on its a. folklore, folk poetry; power and authority to carry out various b. folk songs and traditional instrument activities to protect regional culture, with music; private law, is expected to guarantee the c. folk dances, traditional games; Art civil rights of copyright holders to folklore products include: paintings, drawings, and traditional creativity. It must be stated carvings, carvings, mosaics, jewelery, in legislative material. handicrafts, clothing, traditional musical To meet these legal requirements, instruments and weaving Indonesia has actually ratified several (3) For the announcement or multiplication international agreements, namely the of the Work referred to in paragraph (2), General Agreement on Tariffs and Trade people who are not Indonesian citizens must (GATT), the ASEAN Free Trade first obtain permission from the agencies Agreement (AFTA), and the Trade Related involved in the matter. Intellectual Property Rights (TRIPs) but the (4) Further provisions regarding Copyright problem is that there is no one in TRIPs held by the State as referred to in this mentioning the importance of traditional Article, are regulated by Government protection of knowledge. So that it can be Regulation.

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Through Article 10 of Law Number 19 legal regime was developed on the basis Year 2002 concerning Copyright, it is clear of Western domination, to developing that the law intends to protect Copyright countries, including Indonesia. over Folklorism and other Traditional 3. The role of local governments in Creativity and make the State as the protecting cultural knowledge and Copyright holder. Furthermore regarding expressions in each region, has not been the registration of works, Article 35 of Law based on a comprehensive concept, Number 19 reads: starting from its inventory, development 1) The Directorate General shall register and empowerment. While knowledge the Works and record them in the and expression of regional culture have General Register of Works. been controlled by other parties. Kleim 2) The General Register of Works can be is important because it leads to a seen by everyone without being charged commercial monopoly that is a fee. detrimental to the area concerned. 3) Each person can obtain for himself a passage from the General Register of REFERENCES Works subject to a fee. 1. Dharmayuda, I Made Suasthawa. 4) Provisions regarding registration as Kesatuan Masyarakat Hukum Adat di referred to in paragraph (1) do not Propinsi , Penerbit PT U pada Sastra bekerjasama dengan Yayasan Adi Karya constitute an obligation to obtain a Ikapi dan The Ford Foundation, Denpasar, Copyright. 2001. 2. Besar, Abdulkadir, "Impelementasi Cita CONCLUSION Hukum Dan Penerapan Asas- Asas Based on the explanation above, the Nasional Sejak Lahirnya Orde baru", following conclusions: Majalah Hukum Nasional, BPHN 1. Knowledge and expression of the Depertemen Hukum Dan Hak Asasi traditional culture of the Indonesian Manusia, No1, 1995. people has a very wide and broad 3. Ismaji,Tri Harjun. Sekretaris Daerah content and coverage. However, the Istimewa Yogjakarta, dalam Matriks Data richness of knowledge and expression of Pengetahuan Tradisional dan Ekspresi Budaya Tradisional (PTEBT). traditional culture has not been enjoyed 4. Lembaga Pengkajian Hukum Indonesia, economically for its use, especially for Fakultas Hukum Universitas Indonesia the people who originally owned it. (FHUI), Kepentingan Negara Now a certain part of the knowledge and Berkembang Terhadap Hak Atas Indikasi expression of that culture has been Geografis Sumber Daya Genetika dan commercialized by other people or other Pengetahuan Tradisional, Depok,2005. nations. However, the 5. Rahardjo, Satjipto."Pengantar", dalam commercialization does not provide a Philippe Nonet dan Philip Selzenik, guarantee of justice for the person or Hukum Responsif: Pilihan di Masa group of people who have the initial Transisi. Jakarta: HuMa, 1978. knowledge and expression of the 6. Republik Indonesia, UU No. 5 Tahun 1994 Tentang Konvensi Perserikatan culture. Bangsa-Bangsa Mengenai 2. Misuse of knowledge and expression of Keanekaragaman Hayati, (LN.1994-41, traditional culture, belonging to the TLN No.3556). Indonesian people by other nations has 7. Sardjono, Agus. Pengetahuan Tradisional: become a reality. The IPR regime is Studi Mengenai Perlindungan Hak apparently not sufficient enough to Kekayaan Atas Obat-obatan, Cet. 1. Jakarta: protect the knowledge and expression of Program Pascasarjana Fakultas Hukum Indonesian traditional culture from Universitas Indonesia, 2004. abuse. This happened because KHI as a

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8. Sardjono, Agus. Pengetahuan Tradisional 12. Surpha,I Wayan, Seputar Desa Pakraman Studi Mengenai Perlindungan HKI Atas dan Adat Bali, Penerbit BP, Denpasar, 2002. Obat-obatan, FH Universitas Indonesia, 13. Nonet, Philippe dan Philip Selzenik, Hukum 2004. Responsif, Pilihan dan Masa Transisi. 9. Sardjono, Agus. Potensi Ekonomi dari Jakarta: HuMa, 2003. GRTKF; Peluang dan Hambatan dalam 14. http://cabiklunik.blogspot.com/2007/11/perl Pemanfaatannya: Sudut Pandang Hak indungan-warisan=budaya-harus.html. KekayaanIntelektual, Media HKI Vol.I/No.2/Februari 2005. How to cite this article: Andiza D, Medaline O. 10. Simanjuntak, Yoan Nursari, Hak Desain Study assessment legal law and protection of a Industri (Sebuah Realitas Hukum Dan regional culture. International Journal of Sosial). Surabaya: Srikandi, 2006. Research and Review. 2020; 7(3): 87-94. 11. Supardi, Nunus. Kongres Kebudayaan (1918-2003), (Edisi Revisi), Diterbitkan oleh Ombak, 2007.

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International Journal of Research and Review (ijrrjournal.com) 94 Vol.7; Issue: 3; March 2020