Journal of Intellectual Property Rights Vol 23, July-September 2018, pp 174-193
Indonesian System of Geographical Indications to Protect Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions
Miranda Risang Ayu Palar,1† Dadang Epi Sukarsa2 and Ahmad M. Ramli3
1,3Dept. of Law on Information Technology & Intellectual Property, Faculty of Law, Universitas Padjadjaran, Raya Bandung Sumedang KM.21, Hegarmanah, Jatinangor, Kabupaten Sumedang, Jawa Barat 45363, Indonesia 2Dept. of Law on Environment, Spatial and Land, Faculty of Law, Universitas Padjadjaran,Raya Bandung Sumedang KM.21, Hegarmanah, Jatinangor, Kabupaten Sumedang, Jawa Barat 45363, Indonesia Received: 14 April 2017; accepted: 21 May 2018
Geographical Indications are the Intellectual Property Rights’ system protecting a sign attached to a good or service indicating its geographical origin. A Geographical Indication is the only conventional intellectual property subject matter where the right holder is an entire community rather than an individual. The communal nature of rights to community property such as genetic resources, traditional knowledge and traditional cultural expressions makes obtaining protection difficult under conventional intellectual property regimes where rights holders are conventionally individuals. This article considers Geographical Indications as a promising legal option and responds to the need for pragmatic legal means by which Indonesian products embodying genetic resources, traditional knowledge and/or traditional cultural expressions may enjoy protection within Indonesia’s current Intellectual Property System. The main questions posed include the following: does the Geographical Indication Protection System in Indonesian Law Number 20 of the Year 2016 sufficiently protect all products deriving from or associated with genetic resources, traditional knowledge and/or traditional cultural expressions? How should this system be positioned relative to other pertinent Laws and regulations dealing with the same matter(s)? Should another Law or regulation be added or considered in order to strengthen protection? This article aims to provide answers by analysing results from literature and empirical studies. Data from literature studies were obtained from primary and secondary legal resources, in particular from Laws and implementing regulations, as well as various published research on protected products. Data from empirical studies consists of qualitative data gathered through direct observations and non-structured interviews. Results of these studies demonstrate Geographical Indication systems can be used to protect some but not all products associated with or derived from genetic resources, traditional knowledge and/or traditional cultural expression. Geographical Indication protection should therefore be exercised in addition to other Laws and implementing regulations specializing in safeguarding and protecting genetic resources, traditional knowledge and/or traditional cultural expressions.
Keywords: Geographical Indications, Genetic Resources, Traditional Knowledge,Traditional Cultural Expressions, WIPO, TRIPS Agreement, Indonesian Law Number 20, Lisbon Agreement for the Protection of Appellations of Origin, book of requirements, Indonesian Trademarks Appeal Commission, indication of source, Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, 1891, Paris Convention for the Protection of Industrial Property, Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits, the Bill of Indonesian Government Regulation on Traditional Cultural Expressions, 2018, Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications
Why Geographical Indications? already 65 new GIs were registered in Indonesia.2 Recently, Directorate General of Intellectual This amount of registrations is sensible for Property (DGIP) under the Ministry of Justice and two reasons. Human Rights of the Republic of Indonesia officially First, Indonesia has 7.81 million square kilometers announced 2018 as the year of Geographical of territory3 including more than 13 million islands, Indications (GIs). During 2018, each of the 34 and is inhabited by more than 300 ethnic groups.4 provinces in Indonesia is required to obtain at least Second, Indonesia is known as one of the most one registration for a Geographical Indication (GI), culturally diverse and mega biodiverse countries in meaning atleast 34 new GIs should register in the world,5 indicating potential for many more 1 Indonesia before 2019. By the end of April 2018, Indonesian GIs to be registered. Remarkably, only six of the 65 registered GIs are foreign GIs, which is ______1 †Corresponding author: Email: [email protected] considerably few. In 2016, Indonesia officially
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 175
transformed Indonesian Trademarks Law Number 15 articles about traditional cultural expressions were of the Year 2001 into new Law Number 20 of the added.12 In the new Patent Law of the year 2016, a sui Year 2016 about Trademarks and Geographical generis article about mandatory disclosure of origin Indications (Law Number 20).6 This is the first Law in for an invention that is based on genetic resources or Indonesia using GIs as part of its entitlement, and the traditional knowledge was inserted.13 Many articles Law implies that GIs should become as important as were also introduced in trademark and geographical trademarks, copyrights, patents, industrial designs and indication Law number 20 to provide details on how other intellectual property (IP) subject matters, each to obtain protection of community based products of which already have their own independent Laws. bearing GIs or other indications of source. Law Number 20 also aims to provide solid protection The DGIP also established a special sub-directorate and faster procedure of registration for products made dealing with IP rights held by communities.14 This by non-individual producers.7 sub-directorate is under the Directorate of GIs are the only IP subject matter under the Cooperation’s authority,14 meaning the scope of Agreement on Trade-Related Aspects of IP Rights works can interconnect with realms of other (TRIPS Agreement) where the principal right holder directorates as well as other ministries in so far as the is a community and not an individual.8 Thus, in the communal right holder is concerned. Indonesian legal system, the right to a GI is Efforts to enhance protection of genetic resources, considered a “communal IP right” alongside traditional knowledge and traditional cultural communal rights to genetic resources, traditional expressions, however, have not reached much knowledge and traditional cultural expressions. Given resolution because efforts supposedly involve nine the cultural diversity across Indonesian communities, ministries other than the Ministry of Foreign Affairs, seemingly all potential GIs in Indonesia are likely to Ministry of Education & Culture, Ministry of have associations with genetic resources, traditional Environment and Forestry, and Ministry of Justice & knowledge, traditional medicines and traditional Human Rights. The other nine ministries are the cultural expressions produced by or deriving from following: Ministry of Agriculture; Ministry of Ocean indigenous and local communities. and Fishery; Ministry of Industry; Ministry of Trade; The Indonesian Government has conducted major the Ministry of Research, Technology & Higher efforts to preserve, protect and optimise Indonesia’s Education’s; Ministry of Tourism; Ministry of Health; biological and cultural diversity as cultural, intellectual and Ministry of National Affairs. The inter ministerial and economic assets. The Ministry of Foreign Affairs nature of protecting communal IP objects also called of the Republic of Indonesia began efforts by for the Coordinative Ministry on Political, Justice & negotiating the possibility to endorse a multilateral Security Affairs to take part, and lately, for the binding instrument(s) to protect community based IP Coordinative Ministry of Human Resources & rights for genetic resources, traditional knowledge and Culture to lead efforts. The ministries should work traditional cultural expressions.9 The Ministry of together to amend, endorse and harmonize a number Education & Culture established a national system to of scattered legal instruments and implementing inscript hundreds of cultural heritages from localities regulations related to genetic resources, traditional and provinces in Indonesia to become national and knowledge and traditional cultural expressions. They international cultural heritages.10 The Ministry of should also take steps to empower capabilities of Environment & Forestry has also played an active role many communities across hundreds of Indonesian in sharing benefits of legal arrangements for genetic islands to act as adequate applicants and beneficiaries resources and traditional knowledge associated with of their own products. genetic resources in international fora as well as in With regard to the complexity, length of time and national Law making, including its endorsement of enormous budget by which to provide comprehensive implementing regulations.11 protection, the GI system could become a shortcutting The Ministry of Justice & Human Rights, approach to protect those products based on or especially the DGIP, proceeds to use protection of GIs associated with genetic resources, traditional as part of the Executive Government’s initiative to knowledge and traditional cultural expressions. This amend Laws on copyrights, patent and trademarks. In paper explores such possibility, particularly in the the new Copyrights Law of the year 2014, sui generis Indonesian context.
176 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
GI Protection in Indonesian Law Number 20, 2016 Appellations of Origin (Lisbon Agreement). Even Article 2 of Law Number 20 states the scope of the though Indonesia has not historically been a member protection as covering trademarks and GIs.15 GI is of the Lisbon Agreement,24 Indonesian Law is defined as an indication which identifies the origin of inspired by the Lisbon system’s requirement of a good and/or a product, where the geographical environmental factors to establish the link between an environment, including natural factors, human factors object and its geographical origin. or the combination thereof, is/are attributable to the Article 56 of Law Number 20 also specifies the reputation, quality, and certain characteristic(s) of the ground of refusal for an application seeking registration good and/or product.16 The right protecting a GI is an and protection of a GI.25 Substantively, a GI cannot be exclusive right granted by the government.17 Right registered if it contains matters of the following three holders obtain the right through registration and can types: (1) matters contrary with the state’s ideology, enjoy the right as long as the given reputation, quality national Laws and regulations, morality, religions, and characteristic of the good and/or product decencies, and public order; (2) matters deceptive to prevails.17 One of the four grounds fore fusal to the public as to reputation, quality, characteristic, register a new trademark also relates to GIs. Article origin, production’s process and/or function; and (3) 21(1)(d)states that an application for registration of a matters using the name of a registered plant variety trademark shall be refused if the trademark is exactly from the same genus, except if the name is added via the same or substantially similar to a registered GI.18 use of a phrase indicating its geographical origin.25 According to Law, legal protection for GIs shall Additionally, an application to register a GI shall also only be obtained through registration,17 therefore the be refused if a document depicting the description of a system is constitutive. It differs from a declaratory GI, commonly known as a “book of requirements,” is system of indications of source, which can be obtained incorrect. The application shall also be refused if the without registration and simply via actual use in object is apparently or actually the same as an already marketplace.19 In this regard, Article 53 of the Law registered GI.25Applicants may object to a formal gives legal standing for two types of right holders refusal by submitting a case to the Indonesian eligible to apply for protection of a GI: (1) an Trademarks Appeal Commission.25 institution or agency representing either an indigenous Illegal use of a registered GI is regulated in Article community or a local community who produces the 66.26 Once a violation is clearly proven, it can be object and lives in the geographical area of the litigated in the Indonesian Commercial Court. Illegal production; or (2) a provincial or local government or violative use of a GI can be in the following forms: located where the the good and/or product originates.20 a. Direct and indirect utilization of a GI which fails Producers living outside of Indonesia can also apply to qualify the specifications stated in the for protection through their legal representative or description of the GI; lawyer in Indonesia, as long as they have obtained b. Direct and indirect utilization of a GI on other protection for the GI in their own country.21 Protection protected or unprotected goods and/or products maybe obtained based on relevant international legal with a clear intention to: instruments or international contracts. 1) Signify that the good and/or product is of the Article 54(3) of Law Number 20 also impliedly same quality asthe good and/or product with GI outlines eligibility for protection in Indonesia.22 protection; Natural resources, handicrafts and industrial products 2) Gain economic benefit from the usage; can be protected as GIs. In this regard, Indonesian 3) Gain economic benefit from the reputation of a Law does not differ between levels of protection for registered GI; general products at the first level and for wines & c. Utilization of a GI that constitutes conduct spirits at the second level, as denoted in the TRIPS deceptive to the public; Agreement.23 Instead, Indonesian Law tries to provide d. Utilization of a registered GI by unauthorized the strength of second level protection in the TRIPS person; Agreement for all possible products. To achieve the e. Imitation or missappropriation that misleads the strength of the TRIPS Agreement’s second level public about the true origin or the true quality of protection, Indonesian Law models GI protection on the good and/or product, which is shown on the the 1958 Lisbon Agreement for the Protection of packaging, advertisements, description of the
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 177
object, or through deceptive information about the characteristics of which are due exclusively or true origin of the object and/or the object’s essentially to the geographical environment, contents; including natural and human factors...”33 f. Any other deceptive conduct which potentially From the above definitions, it is fair to say the obscures the public’s views as to the true definition of GI in the Indonesian Legal System geographical origin of the object; this category combines definitions provided by the TRIPS may also include confusion, dilution, deception Agreement and the Lisbon Agreement. Why the and usurpation of a GI.27 Indonesian GI system is a combination of these two In order to improve Indonesian public compliance international systems is speculated below. with Law Number 20, Indonesian IP Laws provide Firstly, the Indonesian definition describes the penal sanctions in all IP subject matters, including substantive scope of a GI as “an indication, ”exactly trademark and GI subject matters.28 Because Law like the TRIPS Agreement. However, the protectable suits may result in penal or criminal sanctions, a Law object in the Indonesian definition includes not only suit should be initiated only as an ultimum remedium “goods,” as substantiated in the TRIPS Agreement, or last effort. Article 101(1) of Law Number 20 states but also “products.” Products are a typical that every person who illegally uses a sign that is denominated scope of the Lisbon Agreement, which exactly the same as a registered GI of a good and/or includes both goods and services. Thus, the product in the same form or kind that is owned by Indonesian GI system can protect a good, service, or another party, is sentenced to a maximum 4 year combination thereof. Interestingly, this breadth of imprisonment and/or a maximum fine of protection is new. In old Indonesian Law on 2,000,000,000 Indonesia Rupiah (IDR).29 Similarly, Trademarks Number 15 of the Year 2001, the Article 101(2) of the Law states that every person protectable element of a GI was only for goods,’ and who illegally uses a sign that is substantially similar not for both goods and products or products alone.34 to a registered GI of a good and/or product in the Since Indonesia’s system protects goods and products, same form or kind that is owned by another party, is it more closely resembles the Lisbon System, even also sentenced by a maximum 4 year imprisonment though Indonesia neither is member to nor has ratified and/or a maximum fine of 2,000,000,000 IDR.30 the Lisbon Agreement. Secondly, the Indonesian system combines the Influences of International Legal Instruments TRIPS Agreement System (TRIPS System) and Article 1.6 of Indonesian Law Number 20 defines a Lisbon Agreement System (Lisbon System) in GI as the following: establishing compulsory linkages between a product “[A]n indication which identifies the origin of a and its geographical origin. The TRIPS System good and/or a product, where the geographical requires a good to have or be of a certain quality, environment, including natural factor, human factor reputation or other characteristic that is reflective of or the combination thereof is/are attributable to the its geographical origin.35 In the TRIPS System, each reputation, quality, and certain characteristic of the requirement can only consist of one form, e.g. one good and/or product.”31 quality or one characteristic, but form varies within GI is defined in Article 22(1) of the TRIPS the broad “other characteristic” category. Agreement as the following: Differently, the Lisbon system requires a product to “[A]n indication which identifies a good as have a certain quality or other characteristic indicative originating in the territory of a member, or a region of a geographical environment.36 The Lisbon System or locality in that territory, where a given quality, also substantiates that the geographical environment reputation or other characteristic of the good is shall include natural and human factors as essentially attributable to its geographical origin.”32 accumulative factors.36 These accumulative factors An appellation of origin is defined in Article 2(1) limit the Lisbon System’s potential inclusivity of of the amended 1958 Lisbon Agreement as the protectable products because the product must be following: substantially influenced by the natural environment. “[T]he geographical denomination of a country, Natural or geographical environment factors include region, or locality, which serves to designate a forestry, agricultural and animal husbandry practices product originating therein, the quality or and products. Moreover, in comparison with the TRIPS 178 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
System, the Lisbon System is more rigid making of source, namely the Madrid Agreement for the compliance more difficult. Indonesia strongly objects Repression of False or Deceptive Indications of Source to the limitation and rigidity of the Lisbon System and on Goods of 1891 (Madrid Agreement), all of the stands for the flexibility of the TRIPS System. Madrid Agreement’s more recent revisions and the 1967 The Indonesian System, in line with the TRIPS Stockholm Act of the Paris Convention (Additional Act System, also requires reputation, quality and certain of Stockholm). Yet Indonesia has ratified none of these. characteristic(s) of a good and/or product. However, Article 1(1) of The Madrid Agreement regulates that unlike in the TRIPS System, these factors are not “[a]ll goods bearing a false or deceptive indication by disjunctive. A product from a protected GI in which one of the countries to which this Agreement applies, Indonesia shall have reputation, quality and certain or a place situated therein, is directly or indirectly characteristic(s) altogether, as accumulative factors. indicated as being the country or place of origin shall be Additionally, the Indonesian System put natural factor seized on importation into any of the said countries.”39 and/or human factor as the cause(s) of the subsisted Indonesia is not a member of the Madrid Agreement, but is reputation, quality and certain character of the a party to the Paris Convention for the Protection of product. In this regard, the Indonesian System is more Industrial Property (Paris Convention)40 and a member of meticulous than the TRIPS System, not for the sake of the TRIPS Agreement.41 The Paris Convention and its making registration and protection more complicated, revisions mention indications of source and appellations of but to ensure that only premium products receive origin (instead of GIs). Thus, protection for an indication of protection. Politically, this meticulousity could also source is recognized by Indonesian Law through be seen as Indonesia’s effort to integrate both TRIPS Indonesia’s ratification of the Paris Convention. The and Lisbon Systems into domestic Law. prohibition on the use of false or deceptive indications of Thirdly, the Indonesian System adopts the “linkage source on goods in the Indonesian legal context can also be establishment” requirement from the Lisbon System counted as one of appropriate measures to prevent or that requires geographical environment factors as control licensing practices or conditions that may constitute indicated above. However, the environmental factor an abuse of IP rights or have an adverse effect on should not be an accumulation of natural and human competition in the relevant market, as highlighted in Article factors, as allowed in the Lisbon System. In 40 of the TRIPS Agreement regulating anti-competitive Indonesian Law, it is more flexible. The factor can be practices in contractual licences.42 Indonesia’s protection solely natural, solely human, or both. This is why the for indications of source is also provided in Articles 63, 64 objects of Indonesian GIs are not limited to only and 65 of Law Number 20.43 agricultural and food products. They can also include According to Article 26(1) of the Patent Law handicrafts or industrial products, whose human Number 13, 2016 (Law Number 13), there is a factor is the only predominant factor. Actually, mandatory disclosure of origin for an invention that is Indonesia maintains its position as a non-member based on genetic resource and/or traditional observer of the World Intellectual Property knowledge.44 Article 26 further obligates the Organization (WIPO) multilateral negotiation of the Indonesian Government to harmonize implementation Lisbon System37 because of this accumulative factor of Law number 13 with other Laws and implementing differentiation. From the Indonesian point of view, regulations in Indonesia.45 These sui generis provisions requiring an accumulation of natural and human particularly refer to the Nagoya Protocol on Access to factors would hinder Indonesia’s capability to protect Genetic Resources and the Fair and Equitable Sharing many products that are based on traditional of Benefits arising from their Utilization to the knowledge and traditional cultural expressions but Convention on Biological Diversity (Nagoya that have no association with genetic resources. Protocol).46 Indonesia ratified the Nagoya protocolin It is important to note that Indonesian Law now Indonesian Law Number 11, 2013. According to Law regulates “indication of source” as an independent sub- Number 11, if a new invention uses goods that are system of GI protection. The Indication of source sub- based on a genetic resource or traditional knowledge system protects against unfair competition in business already bearing an indication of source, patent practices by simply requiring a product to indicate its protection for this new invention would be easier to true geographical origin.38 There are special obtain because the indication of source has already International legal instruments for protecting indications disclosed the origin of the good’s resource.
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 179
Genetic Resources, Traditional Knowledge and protection and management of the environment and Traditional Cultural Expressions: Definitions and Scopes natural resources.54 In Indonesia, current understanding of genetic Based on the above Indonesian legal definitions, a resources, traditional knowledge and traditional genetic resource can be a plant, animal or micro- cultural expressions has been guided by legal organism such as bacteria, viruses or fungi. constructions of scattered Laws and regulations, Differently, traditional knowledge refers to a rather than a clear, comprehensive and unified Law. traditional technique or practice, such as traditional In late 2014, the House of Senate of the Republic of techniques in building houses, markets or dams; Indonesia tabled a bill of Law for protection of traditional techniques in irrigation, hunting, fishing, traditional knowledge and traditional cultural farming, weaving or cooking; and techniques in expressions. However, the House of Representatives traditional healing practices, including traditional blocked this draft. Previously, inter ministerial efforts medicines, tribal cosmetics, or other skills, innovation were conducted in drafting a separate bill of Law to and practices invented and maintained by the manage and protect genetic resources, but this draft communities in their traditional contexts. On these did not draw sufficient attention from either subject matters, Law Number 13 provides a sui Chambers of Parliament to even be tabled. Rather generis article about a mandatory disclosure of origin than domestic initiative, protection instead derives for any invention based on genetic resources or from ratified international legal instruments. Article 2 traditional knowledge.55 of the United Nations Convention on Biological Presently, there is no legal definition for Diversity (ratified by the Indonesian Law Number 5, “traditional cultural expression” in international legal 1994) defines “genetic resources” as genetic materials instruments. Traditional cultural expression is of actual or potential value.47 The Convention also typically defined by an ad-hoc, working definition in defines “genetic material” as any material of plant, multilateral negotiations, especially in the WIPO animal, microbial or other origin containing forum.56 However, the 2005 UNESCO Convention on functional units of heredity.47 the Protection and Promotion of the Diversity of Considering the need to have a more concrete basis to Cultural Expressions (ratified by Indonesian implement the UN Convention on Biological Diversity, Government Regulation Number 78, 2011) provides a the Indonesian Government ratified the Nagoya certain extent of concrete guidance.57 Article 4.3 of Protocol.48 This protocol urged the Minister of the Convention defines “cultural expressions” as Environment and Forestry to endorse Regulation those expressions with a cultural content and resulting Number P34, 2017 (MEF Regulation Number P34) from the creativity of individuals, groups and about acknowledgement and protection of local wisdom societies.58 Accordingly, a traditional cultural in the management of natural resources and the expression could simply be a cultural expression with environment.49 Article 1 of MEF Regulation Number additional traditional character in its cultural content. P34 states the definitions of “genetic resources,”“local Indonesian Law Number 28, 2014 about Copyrights wisdom” and “traditional knowledge.”Genetic resource (Law Number 28) regulates sui generis protection of is defined as a genetic material that embodies actual and traditional cultural expressions with special potential values.50 Genetic resources are typically the treatment.59 For example by recognizing that the body of a plant, animal or micro-organism which has a holders or owners of traditional cultural expressions function and ability to inherit character.51 Local wisdom are communities and not individuals.59 is defined as a set of noble values that guides the way of Different from traditional knowledge, traditional life fora local community, including values to protect cultural expressions are about an expression, which and manage the sustainability of the environment and can be tangible or intangible. An expression embodies natural resources.52 Traditional knowledge is a part of traditional values of its community. Tangible local wisdom, a source of knowledge acquired from examples include handicrafts or tools made through intellectual activity in a traditional context, as well as application of traditional knowledge. An intangible skill, innovation, and practices of indigenous and local example, Woleka Dance—from the indigenous communities.53 Traditional knowledge includes written villages of Tarung and Waitabar in Sumba Island, and unwritten traditional ways of life that is transmitted East Nusa Tenggara, Indonesia—is a traditional through generations and related to the sustainable cultural expression in the form of an ancient tribal 180 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
dance. This dance is performed by girls wearing of genetic resource based products in the form of traditional black woven clothes named Ye’e Mete foods and agricultural products, notably: coffees, teas, Bolo. The exotic darkness of Ye’e Mete Bolo is rice, potatoes, spices, fruits, tobaccoes, vegetables, another type of a traditional cultural expression. Like vegetable oils, herbs, nuts and sugar. It also protects Woleka Dance the clothing derives from traditional products that are derived from animal husbandry, weaving and coloring techniques, specifically such as milk and honey. The types of genetic resource originating in the western part of Sumba Island,60 yet based products which may enjoy protection can be Ye’e Mete Bolo clothes are tangible goods as opposed expanded as long as they meet criteria set forth in to an intangible dance technique. Law Number 20. In the draft of Indonesian Government Regulation Secondly, the GI system in Indonesia also protects on Traditional Cultural Expressions dated 17 traditional knowledge and traditional cultural February 2018, traditional cultural expressions expressions. Examples include various types of woven include all forms of creative works (tangible, clothes and Jepara furniture. Historically, Jepara intangible or a combination thereof) that indicate the furniture was made with wood sourced from the Jepara existence of traditional cultures and that are held by area.101 However, by the time Jepara furniture became communal right holders in an inter-generational a registered GI product, the geographical area of Jepara context.61 Traditional cultural expressions can be in no longer included forests.102 Yet, the traditional the form of verbal and textual expressions, songs, technique of carving Jepara furniture and the depiction music, moves, dances, various performing arts, of unique ornaments on Jepara furniture were theatres, visual arts, vernacular architectures, maintained by the Jepara craftsmen, meaning Jepara landscapes, and more. Sacred rituals and ceremonies may furniture was granted GI protection of solely based on also be regarded as traditional cultural expressions.62 a human factor. Equally noteworthy, several types of woven clothes—except those colored with organic GI Products in Indonesia dyes sourced from plants, predominantly made for Over a span of ten years—since endorsement of wealthy consumers—are produced without any 63 Government Regulation Number 51, 2007 about GIs association with a genetic resource, and continue to until the end of 2017—Indonesia registered 63 products receive GI protection. under the protection of its GI system. Only six of these 1 Thirdly, traditional knowledge subsisted in all GI 63 are foreign GIs. Based on successful applications for products in Indonesia until the end 2017, even though GI protection, the Association of Geographical the intentions of obtaining GI registrations for the Indications of Indonesia categorizes Indonesian “GI products were neither to preserve nor exploit the products” in 7 groups: coffees, food plants, spices, fruits, economic benefits of traditional knowledge, per se. This woven clothes, tobaccoes, and mix commodities. requirement of traditional knowledge derivation for a Foreign GIs that have been registered in Indonesia fall protected genetic resource based product seeks to ensure into three categories: alcoholic beverages, cheese and 64 there exists a strong link between the product and its silks. Coffees, food plants (or food crops), spices, designated area of production, especially by denoting tobaccoes, alcoholic beverages and cheese are made local producers as a human factor accompanying the from genetic resources. Some are the result of traditional natural factor. In the case of GI protected handicrafts, culinary techniques. Table 1 demonstrates the traditional knowledge was more important because it relationships between many of Indonesia’s registered GI became a sole factor to establish the link. products and the genetic resources, traditional Most of the traditional knowledge embodied in the knowledge and/or traditional cultural expressions from products, however, was not regarded as exceptionally which they derive. valuable or protection-worthy because scientific Indonesian GI system: Extent of Protection research on the products found substantial weaknesses The question of whether a GI system can be used to in the traditional knowledge used to plant, cultivate protect genetic resources, traditional knowledge and and package the products.103 Researchers argued that traditional cultural expressions remains unanswered. some plants were not planted well enough or In this regard, Table 1 illustratesa number of cultivated strongly enough to resist pests, could not be important points in the Indonesian legal context. massively cultivated, and were suspected of being Firstly, The GI system in Indonesia protects a number contaminated by bacteria in the process of packaging.
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 181
Table — 1: Relationship between Indonesia’s registered GI products and the genetic resources, traditional knowledge and/or traditional cultural expressions A. Coffees
S. No. Name Origin Genetic Resource65 Traditional Knowledge Traditional Cultural Expression 1 Kintamani Arabica Coffee Kintamani highland, Bali Island Coffea arabica L. Subak watering - technique, post harvesting technique66 2 Gayo Arabica Coffee Gayo Plateau, Nangroe Aceh Coffea arabica L. Traditional agro- - Darussalam Special Province, forestry system67 Sumatera Island 3 Flores Bajawa Coffee Flores Island, East Nusa Tenggara Coffea arabica L. Ngada tribal organic - Province processing technique68 4 Kalosi Enrekang Arabica Enrekang Regency, South Coffea arabica L. Traditional marketing - Coffee SuLawesi, SuLawes Island of Enrekang traders69 5 Java Preanger Coffee 11 mountains of Priangan Coffea arabica L. Cultivating and - (Preanger), West Java Province, processing 6 plant Java Island varieties of coffees into various flavors70 6 Java Ijen Raung Coffee Ijen and Raung mountains, East Coffea arabica L. Agro-forestry plantation - Java, Java Island technique71 7 Toraja Arabica Coffee Tana Toraja Highlands, South Coffea arabica L. Traditional plantation - SuLawesi Province, SuLawesi technique73 Island72 8 Java Sindoro Sumbing Sindoro Sumbing mountains, Coffea arabica L. Traditional plantation - Coffee Central Java Province, Java Island technique74 9 Sumatera Simalungun Simalungun regency, North Coffea arabica L. Traditional plantation - Coffee Sumatera, Sumatera Island technique75 10 Sumatera Mandailing Mandailing region, North Coffea arabica L. Traditional plantation ‘Kopi Takar’ Coffee Sumatera Province, Sumatera technique serving Island tradition76 11 Sumatera Koerintji Coffee Kerinci mountain, Jambi Province, Coffea arabica L. Traditional plantation - Sumatera Island technique77 12 Sumatera Lintong Coffee Lintong region, North Sumatera Coffea arabica L. Traditional plantation - Province, Sumatera Island technique78 13 Lampung Robusta Coffee Lampung Province, Sumatera Coffea canephora Traditional cultivation - Island Pierre technique79 14 Semendo Coffee South Sumatera Province, Coffea canephora Local wisdom in - Sumatera Island Pierre cultivation techniques80 15 Temanggung Coffee Temanggung Regency, Central Coffea canephora Traditional agricultural - Java Province, Java Island Pierre technology81 17 Empat Lawang Coffee South Sumatera Province, Coffea canephora Traditional bean- - Sumatera Island Pierre processing technique82 18 Pinogu Coffee Pinogu region, Gorontalo Coffea canephora Traditional plantation - Province, SuLawesi Island Pierre and processing techniques83 19 Pupuan Bali Coffee Pupuan region, Bali Island Coffea canephora Subak watering - Pierre technique, post harvesting technique 20 Tambora Coffee Tambora mountain, Sumbawa Coffea canephora Traditional plantation - Island, East Nusa Tenggara Pierre and roasting 84 Province technique (contd.) 182 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
Table — 1:Relationship betweenof Indonesia’sregistered GI products andthe genetic resources, traditional knowledge and/or traditional cultural expressions (contd.) S. No. Name Origin Genetic Resource Traditional Knowledge Traditional Cultural Expression 21 Tungkal Jambi Tungkal region, Jambi Province, Coffea liberica Traditional plantation - Coffee Sumatera Island Bull technique85 22 Rangsang Meranti Meranti mountain, Riau Coffea liberica Traditional plantation - Coffee Province, Sumatera Island Bull technique B. Food Crops 1 Adan Krayan Rice North Kalimantan Province, Oryza sativa Indigenous farming Serving traditions of Kalimantan Island technique of Krayan rice as main courses white rice86 and food or snacks processing techniques 2 Pandanwangi Cianjur Cianjur Regency, West Java Oryza sativa Traditional technique Serving traditions of Rice Province, Java Island of wet land farming87 rice as main courses, and food processing snacks or a part of techniques offerings 3 Cilembu Sweet Cilembu Village, Sumedang Ipomoea batatas Traditional techniques Serving traditions as Potatoes Regency, West Java Province, of drying, ripening snacks Java Island and ash baking C. Spices 1 Muntok White Pepper Bangka Belitung Islands, Piper nigrum L. Traditional technique - Bangka Belitung Province (merica) of processing88 2 Lampung Black Lampung Province, Sumatera Piper nigrum L. Traditional technique - Pepper Island of farming89 3 Siau Nutmeg Siau Island, Sangir Myristica fragrans Traditional technique - Archipelago, North SuLawesi Houtt of harvesting91 Province90 4 Tomandin Fak-fak Fak-fak Regency, West Papua Myristica argentea Mbaham Matta tribal - Nutmeg Province, Papua Island medicine92 and spice 5 Minahasa Clove Minahasa Regency, North Syzygium Traditional technique - SuLawesi Province, SuLawesi aromaticum to process and serve Island the clove93 6 Moloku Kie Raha Moloku Kie Raha Sultanates, Syzygium Indigenous technique - Clove Moluccas Archipelago, Maluku aromaticum to process and serve Province the clove94 7 Alor Archipelago Alor Archipelago, East Nusa Vanilla planifolia Traditional plantation - Vanilla Tenggara Province Andrews technigue95 8 Koerintji Cinnamon Kerinci Mount, Jambi Province, Cinnamomum Local wisdom of - Sumatera Island burmannii (Cassia cultivation technique97 vera)96 D. Fruits 1 Pondoh Sleman Snake Sleman Regency, of Salacca zalacca Traditional plantation - Fruit Yogyakarta Special Region, technique Java Province 2 Dieng Carica Dieng Plateau, Central Java Vasconcellea Traditional technique - Province, Java Island cundinamarcensis to process the fruits into eatable sweets 3 Gayo Aceh Keprok Gayo Pateau, Aceh Province, Citrus reticulata Traditional plantation - Orange Sumatera Island technique98 4 So’e Mollo Orange So’e Regency, Timor Island, Citrus reticulata Traditional plantation - East Nusa Tenggara Province technique99 5 Sukatali Sapodilla Sumedang Regency, West Java Manilkara zapota Traditional plantation - Province technique100 (contd.)
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 183
Table — 1:Relationship betweenof Indonesia’sregistered GI products andthe genetic resources, traditional knowledge and/or traditional cultural expressions (contd.) S. No. Name Origin Genetic Resource Traditional Knowledge Traditional Cultural Expression 6 Komering Duku (Duku Ogan Komering Regency, Lansium Komering tribal - Komering) South SuLawesi Province, domesticum plantation technique Sumatera Island E. Woven Clothes 1 Mandar Silk Woven Polewali Mandar Regency, - Traditional technique Mandar texture, Clothes West SuLawesi Province, to weave the silk ornaments and SuLawesi Island costumes 2 Sikka Ikat Woven Clothes Sikka Regency, East Nusa - Traditional technique Sikka texture, Tenggara Province to weave the ornaments and ornaments of the costumes clothes 3 Tanimbar Ikat Woven Tanimbar Archipelago, - Traditional technique Tanimbar texture, Clothes Maluku Province to weave the ornaments and ornaments of the costumes clothes 4 Gringsing Ikat Woven Bali Province, Bali Island - Traditional technique Gringsing texture, Clothes to weave the ornaments and ornaments of the costumes clothes F. Tobacco 1 Sumedang Black Tobacco Sumedang Regency, West Nicotiana Traditional technique - Java Province, Java Island to plant, cut and dry the black tobacco 2 Sumedang Mole Tobacco Sumedang Regency, West Nicotiana Traditional technique - Java Province, Java Island to plant, cut and dry the white tobacco 3 Srinthil Temanggung Temanggung Regency, Nicotiana Traditional technique - Tobacco Central Java Province, Java to plant, cut and dry Island the tobacco G. Various Commodities 1 Jepara Furniture Central Java Province, Java - Traditional technique Jepara furniture Island to carve the furniture ornaments 2 Sumbawa Mare Milk Sumbawa Island, West Nusa - Traditional technique - Tenggara Province to produce and preserve the milk 3 Sumbawa Forest Honey Sumbawa Island, West Nusa - Traditional technique - Tenggara Province to obtain and preserve the forest honey 4 Lombok Water Spinach Lombok Island, West Nusa Ipomoea aquatica Traditional tecnhique - Tenggara Province to plant the spinach water 5 Aceh Patchouli Oil Aceh Province, Sumatera Pogostemon cablin Traditional technique - Island to extract the oil 6 Sidoarjo Smoked Sidoarjo Regency, East Java Chanos chanos Traditional technique - Milkfish Province, Java Island to smoke the milkfish
7 Kubu Bali Cashew Nut Kubu Village, Bali Province, Anacardium Traditional technique - Bali Island occidentale to dry and fry cashew nut 8 Muna Cashew Nut Muna Regency, South East Anacardium Traditional technique - SuLawesi Province, occidentale to dry and roast the SuLawesi Island cashew nut (contd.) 184 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
Table — 1:Relationship betweenof Indonesia’sregistered GI products andthe genetic resources, traditional knowledge and/or traditional cultural expressions (contd.) S. No. Name Origin Genetic Resource Traditional Knowledge Traditional Cultural Expression 9 Kulon Progo Palm Sugar Kulon Progo Regency, Cocos nucifera Traditional technique - Yogyakarta Special to produce the palm Region, Java Island sugar 10 Purwaceng Dieng Herbal Dieng Plateau, Central Pimpinella pruatjan Traditional technique - Viagra Java Province, Java Island to transform the roots of the plant into the herbal viagra 11 Amed Bali Salt Amed Coastal Village, - Traditional technique - Bali Province, Bali Island to produce the sea salt 12 Java Preanger Tea 14 mountains in Camellia sinensis O. Traditional technique - West Java Province, Java Kuntze to plant, dry and cut Island the tea
Simultaneously, the standard of quality necessary Tubrukregistrations embody both traditional for products to be worthy of GI protection continued knowledge in how to process coffee beans and to be premium. So to increase quality, traditional traditional cultural expressions of how to serve coffee farmers were advised to get involved in capacity beverages. building programs. In these programs, instead of From the food products sector, most Ipomoea being advised to preserve their traditional knowledge batatas (sweet potatoes) from Cilembu Sumedang related to farming, the farmers were encouraged to aresold as raw products in traditional markets and modify traditional techniques and adopt more modern retail stores. Interestingly, several department stores practices. in Bandung also sell Ipomoea batatasas ready-to-eat Fourthly, some GI products have associations with snacks after first baking the potatoes in modern traditional cultural expressions, especially regarding ovens,104 presumably since the unique reputation of how products are served. In other words, the the potatoes relates as much to the distinctive honey- traditional cultural expressions for these products sweet flavor resulting from baking as to their were characterized more so by the final appearance of geographical origin from the Cilembu village in a product than by traditional knowledge used in Sumedang Regency. Many consumers believe the processing or blending the raw products. Thus, the aroma would be better if the potatoes were baked in a traditional cultural expressions were not the main traditional way by covering them with hot firewood factors of protection, but of commercialization. ashes as villagers traditionally did in Cilembu. Drinking products including Coffea arabica L. Cilembu villagers traditionally serve the sweet (Arabica coffee), Coffea canephora Pierre (Robusta potatoes from the hot ash along with a glass of coffee) and Coffea liberica Bull (Liberica coffee) Sundanese bitter tea, constituting a unique traditional from different places and regions in Indonesia cullinary expression, especially if served in a dominated the registered GIs in Indonesia until the traditional ambiance. end of 2017. They were sold not only in packages of Types of Oryza sativa,105 especially Adan Krayan raw and roasted coffee beans or grinds, but also as Rice and Pandan Wangi Cianjur Rice, are both sold liquid coffee. In addition to these coffees, Camellia as packaged raw products and served in a traditional sinensis O. Kuntze—a tea from the mountains of West manner. Since most Indonesian across various regions Java Province registered under the GI of Java eat rice as a main dish, resulting in many traditional Preanger Teais also sold in both raw form and a types of rice, many traditional ways of processing ready-to-drink, liquid form. Two examples of culinary rice, and many traditional culinary expressions of expressions specific to how coffee should be served serving rice exist. In some tribes and indigenous and consumed are Kopi Takar (Takar coffee) for communities, rice is also used as a part of spiritual Sumatera Mandailing coffee and Kopi Tubruk celebrations and ritual offerings. In particular is a (Tubruk coffee) for coffees originated from Java and good example of this, as it is primarily cultivated by Bali Islands. Both the Kopi Takar and Kopi the Dayak Lundayeh indigenous tribes of North
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 185
Kalimantan, where use of rice in sacred ceremonies Second, protection seems to take a prolonged is indispensable.106 The Dayak tribe known as length of time to acquire. This is primarily due to Kaharingan, in particular, is an example of an challenges presented when identifying or establishing indigenous tribe where rice is central to ceremonial rights holders. The slow examination process inside celebrations.106 the DGIP Office is not the primary culprit, instead it is often difficult to establish a solid community that Problems of Indonesia’s Existing GI System can be identified as the right holders in the first place. From the discussion above, it is evident that the GI In Indonesia, rights to use protected GIs on products system in Indonesia can be used to protect plant-based are held by different communal formations. These genetic resources for food and agricultural products formations need prior consolidation and that are based on traditional knowledge associated empowerment before they are ready to apply for the with corresponding genetic resources, as well as protection. Readying these formations depends tangible traditional cultural expressions like heavily on governmental approval, and approval often handicrafts. However, four outstanding problems exist prolongs for more than 3 years. As a result, today— with Indonesia’s current GI system. more than 10 years after endorsement of Government First, Indonesia’s GI system cannot protect a Regulation Number 51, 2007 specifying and derivative genetic resource that has been transformed clarifying the registration process—the amount of by sophisticated technology into a completely registered GIs in Indonesia remains considerably different and novel form. This is because the latter, small. Even though in recent Law Number 20, its transformed product has lost its environmental compulsory document of description of a GI is shorter character and has become more industrial than and provides more clarity and efficiency, the prior reflective of place. Moreover, such transformed and community empowerment and recognition continues unprotectable products are usually invented by an to necessitate much time. individual expert in a modern scientific laboratory Third, the inclusive or exclusive nature of a GI rather than by an indigenous or local community in right is unclear for traditional knowledge and their traditional context. An example of a transformed traditional cultural expressions. In the Indonesian product is those modern skin cosmetics that use legal system, the nature of the right to use a GI is modern technology to transform a fungus into a defined as an exclusive right held by a community. particular form suitable for use in the cosmetics; this However, it remains unclear whether the rights to form of the fungus is different from the natural form traditional knowledge and traditional cultural traditionally used to ferment a traditional Indonesian expressions are exclusive or inclusive. If inclusive, soy bean cake.107 Because the fungus needs to be then the group of communal holders of the right could transformed in a modern laboratory before it can be expand to include on-members of the local used in cosmetics, the final cosmetic products should community, so long as the non-members have been be registered as patent products and not GI products using the knowledge or the expression in good faith since such laboratory formation is completely and taking an active role in preservation and alienated from its geographical origin. enhancement of the expression. There is also no evidence that Indonesia’s GI Many traditional dances, songs and foods in system can protect traditional knowledge that has no Indonesia exhibit an inclusive nature. For example, association with a genetic resource, such as traditional Balinese or Yogyakarta traditional dances are techniques in land watering, food processing, weather inherited and maintained by local communities across forecasting, compassing, building various vernacular the Bali Island and in the Yogyakarta Special Region or tribal houses and more. Nor is the system useful in of Java Island. Yet, many professional dancers who protecting intangible traditional cultural expressions perform, teach, and introduce the beauty of the dances such as traditional dances, traditional sports, oral to students and audiences around the world actually traditions, sacred ceremonies, rituals and traditional originate from different regions, different islands and songs and musics. In short, the current GI system in even different countries. An inclusive nature of the Indonesia is useful for protecting many types of right to “use” (perform, teach, etc.) Balinese or genetic resources, traditional knowledge and Yogyakarta traditional dances would allow traditional cultural expressions, but not all types. recognition of non-Balinese and non-Yogyakartanese 186 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
dancers as additional right holders. The good faith a cross-border geographical area is not impossible to element would require these additional holders to determine. However, if the area is an international obtain authority from the main maestros of the cross-border geographical area between two or more dances, and to maintain the trust of local communities countries, the problem is likely unsolvable in that the potential holders would preserve and develop Indonesia’s current GI system. the dances in line with original traditions. Additionally, an inclusive nature is stipulated in the Limitations of the Indonesian GI Protection bill of a government regulation about traditional System cultural expressions.108 This draft seeks to implement The limitations of Indonesia’s GI system, as well Article 38(4) of Law Number 28 (about as the intersection in Indonesia between GIs and other copyrights),which is specifically on point for conventional IP protection systems in providing protection of traditional cultural expressions.109 comprehensive protection for genetic resources, However, Law Number 28 also includes the traditional knowledge and traditional cultural possibility for traditional cultural expressions to be expressions is depicted in the Fig. 1. 110 considered an exclusive right. For example, Geneva Act of the Lisbon Agreement “Legong” isa genre of Balinese traditional dances that In regard to the problems and limitations of has been inscripted as an intangible cultural 111 Indonesia’s GI protection system, the latest heritage. “Legong Keraton Peliatan” traditional development in WIPO multilateral negotiations in the dance in particular is from the Peliatan village of WIPO forum may lead to changes in the Indonesian Ubud in Bali Island and is protected as an inclusive System. In particular, negotiations surrounding the and community based traditional cultural expression. 2015 Geneva Act of the Lisbon Agreement on On the other hand, “Legong Sampek Eng-Tay,” a Appellations of Origin and Geographical Indications specific but different type of Legong traditional dance (Geneva Act) adopted in May 2015,115 may prove has the potential to be protected as an exclusive and most effectuating. The Geneva Act attempts to individual right. This is because “Legong Sampek resolve several issues. The first issue is the inability Eng-Tay” was created by an individual choreographer of the original 1958 Lisbon Agreement to attract more for the Ayu Bulan Traditional Dance Group as a 112 member countries, irrespective of 1967 revisions and modification of a Chinese love story. To make 1979 amendments. The Geneva Act also attempts to matters more convoluted, the Ayu Bulan group is resolve concerns surrounding the afore mentioned known for preserving and teaching both “Legong rigidity of the Lisbon protection system. Endorsement Keraton Peliatan” and “Legong Sampek Eng-Tay” 113 of the TRIPS Agreement, while perhaps well- outside of Bali Island. So while the right to intended, actually exacerbated concerns regarding GIs “Legong Sampek Eng-Tay” alone may seem exclusive because the TRIPS System seemingly went too far in and individually held, the group’s sharing of both the opposite direction. Except with respect to the Legong dances seems to be an exercise of an inclusive TRIPS System’s endorsement of second level and community held right. But again in contradiction protection for wines and spirits, the TRIPS system to the latter inclusive character, a general compilation seems too flexible for Indonesian acceptance. Finally, of pictures and stories about various Balinese Legong the Geneva Act attempts to address the growing dances, including “Legong Keraton Peliatan” and interest of developed countries in WIPO multilateral “Legong Sampek Eng-Tay” could also be protected as negotiations to provide a pragmatic and workable an individual and exclusive right of the author of system that would protect genetic resources, the compilation. traditional knowledge and traditional cultural Fourth, defining the geographical area where a expressions. The communal nature of right holders for potential GI product originates may prove a GI is in line with the communal nature of general problematic. Many potential products in Indonesia custodianship held by indigenous and local originate from areas that extend beyond the borders of communities of genetic resources, traditional just one administrative locality, regency or knowledge and traditional cultural expressions. By 114 province. The difficulty in such situations is the holistically aligning protection opportunities and time and effort required to determine such a cross- addressing key concerns, protection for GIs appears border geographical area. While most likely difficult, promising in Indonesia as a result of the Geneva Act.
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 187
Figure—1: Intersection in Indonesia between GIs and other conventional IP protection systems The Geneva Act includes a number of important Indonesia has already registered a number of points, at least partially due to combining protections handicrafts as GI products, based on Indonesian provided in the Lisbon System and the TRIPS traditional cultural expressions of local producers that System. Like the TRIPS Agreement, the Geneva Act have no connection with any genetic resource. Under the requires full compliance of its members,116 yet it is Geneva Act, these handicrafts and other registered GI more flexible than the Lisbon Agreement. The products, enjoy stronger protection than the baseline Geneva Act also allows members to choose whether protection provided in TRIPS. According to the they would like to become a member of both the minimum standard protection principle of TRIPS, Lisbon Agreement and the Geneva Act, or the Geneva Indonesian domestic Law does not violate any Act only.117 The only prerequisite for members to obligations of the TRIPS Agreement and the products become a member of Geneva Act is that members can be marketed safely in Indonesia as protected GI must bea member of Paris Convention.118 Another products.122 In other words, contracting parties whose important point of the Geneva Act is its scope of legal means by which to protect a GI are already protection. The Geneva Act extends the strength of established in their home country, may continue to enjoy the TRIPS System’s second level protection to international protection for handicrafts to the extent products other than wines and spirits.119 Additionally, allowed in parties’ domestic legal systems.122 However, the Geneva Act introduces innovative language that handicrafts will not be eligible for registration under an would allow a product originating from a cross border appellation of origin, nor can handicrafts enjoy stronger geographical area to obtain protection.120 The protection than that which is provided in the Lisbon protection would first require bilateral or regional System’s member countries’ domestic Law.122 agreement between two or more related countries, Moreover, Indonesia does not further regulate the followed by joint application for protection through a protection for appellation of origins in Law Number 20 commonly designated competent authority.121 like it does for GIs and indications of source. 188 J INTELLEC PROP RIGHTS, JULY - SEPTEMBER 2018
Ultimately, Indonesia’s objections to the 1958 sharing on the utilization of genetic resources and Lisbon System and its 1979 revision are resolved in traditional knowledge associated with genetic the Geneva Act. The Geneva Act does not require its resources; and implementation of the regulation about members to first become members of 1958 Lisbon protection of local wisdom in the context of Agreement, which abates concerns about the Lisbon environmental protection and management. There is System’s rigidity. Furthermore, in its full title the also a new Law, endorsed in late 2017, dedicated to Geneva Act uses both the TRIPS Agreement’s term cultural development that includes protection for and “geographical indications” along with the Lisbon enhancement of traditional knowledge and traditional Agreement’s term “appellation of origins,” making cultural expressions. All laws and regulations are the scope of protection more attractive to contracting expected to function harmoniously and in compliment parties, including Indonesia. It implies that the to one another. TRIPS System for GIs has placated concerns on the However, there are a number of bills of Law and TRIPS System’s flexibility. Thus, Indonesia may implementing regulations which have yet to be strongly consider becoming a member of Geneva enacted, including: the bills of Law on genetic Act, thereby adopting more means by which resources management; the bill of Law on indigenous to protect GI products deriving from genetic communities; and the bill of Law implementing resources, traditional knowledge and traditional regulation on the protection of traditional cultural cultural expressions. expressions. These bills require resolution, otherwise the problem of legal standing for indigenous Conclusion communities seeking to protect their traditional The GI protection system in Indonesia successfully knowledge and traditional cultural expressions would protects a number of food and agricultural products remain unresolved in the Indonesian Legal System. derived from plant genetic resources, traditional These bills also require careful consideration of knowledge associated with genetic resources and complications that may arise when the laws and tangible traditional cultural expressions, especially regulations disseminate. On this front and of primary handicrafts. However, because of their geographical concern, the considerably non uniform or low nature, GIs cannot protect modern technological awareness levels of new laws and regulations inventions that include derivative or transformed throughout Indonesian society would make both genetic resources, traditional knowledge without dissemination and compliance most challenging. genetic resource association, intangible traditional Sui generis legal means primarily focused on the knowledge, or intangible traditional cultural protection of genetic resources, traditional knowledge expressions. GIs can protect several types of products and traditional cultural expressions remain necessary that embody genetic resources, traditional knowledge for the future of Indonesia, especially to preserve the and traditional cultural expressions, but not all. following: traditional knowledge that lacks any direct Indonesia’s GI system is very useful in providing association with genetic resources, traditional protection for end-products of some genetic resources medicines and cosmetics; traditional knowledge in and tangible traditional cultural expressions, but not environmental management systems; intangible for traditional knowledge per se. traditional knowledge; sacred and secret traditional Over the past five years, in addition to the GI knowledge; and vast types of local wisdom that lack protection system, the Indonesian Government has direct linkage to environmental preservation and taken notable efforts to protect genetic resources, management issues. traditional knowledge and traditional cultural The Geneva Act addresses many of Indonesia’s expressions in Indonesia. Some results of these efforts concerns surrounding the Lisbon and TRIPS include the following: provisions for traditional Agreements, especially in resolving international cultural expressions inserted into Copyright Law; cross-border protection issues and expanding the mandatory disclosure of origin for inventions derived international market for Indonesian GI products of from genetic resources or traditional knowledge in handicrafts into the Lisbon Agreement’s member Patent Law; ratifications of international legal countries. However, aside from the many advantages instruments dealing with access to a number of plant offered in the Geneva Act, there exists a serious genetic resources for foods and agriculture; benefit challenge in Indonesia. Currently, the amount of
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 189
registered domestic GIs remains much higher than the 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) [hereinafter amount of foreign GIs. Ratification of the Geneva Act TRIPS Agreement]. 9 Indonesia to Chair the International Convention on could invert the ratio of Indonesian to foreign Intellectual Property, Ministry of Foreign Affairs Republic registered GIs if the awareness of potential right of Indonesia (26 November 2018), https://www.kemlu. holders in Indonesia cannot be increased. If ratified, go.id/en/berita/Pages/Indonesia-to-Chair-the-International- Indonesia would also need to be prepared for tougher Convention-on-Intellectual-Property.aspx. competition in local markets that would certainly 10 Diplomacy Delivers: Indonesian-Australian Cooperation Successfully Protects National Cultural Heritage Objects, become playing fields for more foreign competitors. Ministry of Foreign Affairs Republic of Indonesia (29 August Empowerment of those communities who would be 2018), https://www.kemlu.go.id/en/berita/Pages/Diplomacy- right holders of potentially registered GIs should be Delivers-Indonesian-Australian-Cooperation-Successfully- the first priority, before Indonesia ratifies the Protects-National-Cultural-Heritage-Objects.aspx. Note that “heritage” in the context of this sentence implies some degree Geneva Act. of tangibility, but as will be explored throughout this article, the dictionary definition of heritage simply refers to References “something that has been or may be inherited by legal descent 1 Direktorat Jenderal Kekayaan Intelektual Kementerian of succession” and is not necessarily tangible. Hukum dan Hak Asasi Manusia RI (Directorate General of https://www.dictionary.com/browse/heritage. Intellectual Property, Ministry of Justice and Human Rights, 11 Minister of Environment and Forestry of the Republic of Republic of Indonesia, E-Indikasi Geograf is (E- Indonesia, Decree of the Minister of Environment and Forestry Geographical Indications), ig.dgip.go.id. Number P.2/Menlhk/Setjen/Kum.1/1/2018 Concerning Access 2 Interview with Riyaldi, Tim Ahli Indikasi Geografis to Genetic Resources of Wild Species and Benefit Sharing on (Geographical Indication’s Team of Experts), Directorate Their Utilization (1 January 2018), http://www.graccess General of Intellectual Property, Ministry of Justice and Human .co.id/assets/document/P2_Akses_SDG_Inggris.pdf. Rights, Republic of Indonesia; Head of Asosiasi Indikasi 12 Law Number 28, 2014 about Copyrights [hereinafter Law Geografis Indonesia (Indonesian Geographical Indications’ Number 28] (Indonesia), amending Law Number 19, 2002 Association), Jakarta (accessed on 26 April 2018). about Copyrights (Indonesia). 3 Badan Pembinaan Hukum Nasional, Kementerian Hukum 13 Law Number 13, 2016 about Patent [hereinafter Law dan HAM Republik Indonesia (National Law Development Number 13] (Indonesia), amending Law Number 14, 2001 Agency, Ministry of Justice and Human Rights), Indonesia about Patent (Indonesia). Merupakan Negara Kepulauan Terbesar Di Dunia 14 Directorate General of Intellectual Property Ministry of Law (Indonesia is the biggest Archipelago Country in the World), and Human Rights Republic of Indonesia, Trademark Warta BPHN (28 October 2015)
Indications, Law Number 29, 2000 about Protection of New Environmental and Forestry Regulation P34 Year 2017 Variety of Plants, Law Number 30, 2000 about Trade [hereinafter MEF Regulation No. P34], Article 1(3). Secrets, Law Number 31, 2000 about Industrial Design, Law 51 Ministry of Environmental and Forestry Regulation P34 Year Number 32, 2000 about Design of Integrated Circuit Lay- 2017 [hereinafter MEF Regulation No. P34], Article 1(3). Outs. Article 1(3) of MEF Regulation No. P34 Year 2017 Law 28 Law Number 20, Article 101(1). Note that 2 billion IDR Number 13, 2016. translates to roughly $138,000 USD, as of December 2018. 52 Working definitions in the WIPO multilateral negotiations 29 Law Number 20, Article 101(2) (2016). about genetic resources, traditional knowledge and 30 Law Number 20, Article 1.6 (2016). traditional cultural expressions, WIPO Inter-Governmental 31 TRIPS Agreement, Article 22(1) (1994). Committee on Genetic Resources, Traditional Knowledge 32 WIPO, Lisbon Agreement for the Protection of Appellations and Folklore, XXVIII Session, Consolidated Document of Origin and their International Registration, 31 October relating to Intellectual Property and Genetic Resources (7-9 1958, as revised on 14 July 1967 and as revised on 28 June 2014) WIPO/GRTKF/IC/28/4; WIPO Inter- September 1979 [hereinafter Lisbon Agreement], Governmental Committee on Genetic Resources, Traditional https://www.wipo.int/export/sites/www/lisbon/en/legal_texts/ Knowledge and Folklore, XXVIII Session, Draft of Articles lisbon_agreement.pdf. of the Protection of Traditional Knowledge (7-9 June 2014) 33 Law Number 15 Year 2001 regarding Marks. WIPO/GRTKF/IC/28/5; and WIPO Inter-Governmental 34 TRIPS Agreement, Article 22(1) (1994). Committee on Genetic Resources, Traditional Knowledge 35 Lisbon Agreement, Article 2(1) (1979). and Folklore, XXVIII Session, Draft of Articles of the 36 WIPO, Contracting Parties, Lisbon Agreement, Protection of Traditional Cultural Expressions Number (7-9 https://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&t June 2014) WIPO/GRTKF/IC/28/6. reaty_id=10 (accessed on 6 January 2019). 53 Regulation Number 78, 2011. Is that the correct Year? Or is 37 Law Number 20, Article 63-65 (2016). it 2010? https://repit.files.wordpress.com/2011/11/perpres- 38 WIPO, Madrid Agreement Concerning the International 78-tahun-2010-english-version.pdf. Registration of Marks [hereinafter Madrid Agreement], 54 United Nations Educational, Scientific and Cultural Article 1(1), 14 April 1891, as amended 28 September 1979, Organization [UNESCO] Convention on the Protection and https://wipolex.wipo.int/en/text/283529. Promotion of the Diversity of Cultural Expressions, Article 39 WIPO, Contracting Parties, Paris Convention for the 4.3, 20October 2005, https://en.unesco.org/creativity/sites/ Protection of Industrial Property, 15October 2018, creativity/files/passeport-convention2005-web2.pdf. https://www.wipo.int/export/sites/www/treaties/en/document 55 Law Number 28, 2014. s/pdf/paris.pdf. 56 In-depth interview with traditional weavers from We’e Lowo 40 World Trade Organization [WTO], Amendment of the TRIPS Tribe, Tarung ancestral village, West Sumba Regency, East Agreement, Nusa Tenggara Province, Indonesia, December 2017. https://www.wto.org/english/tratop_e/trips_e/amendment_e.h 57 Bill of Government Regulation of the Republic of tm (accessed on 6 January 2019). Indonesia about Traditional Cultural (17 February 2018), 41 TRIPS Agreement, Article 40 (1994). Article 1(1) Bill of Traditional Cultural Expressions, 42 Law Number 20, World Trade Organization [WTO], Article 4(2) (2018) The Government Regulation on Amendment of the TRIPS Agreement, https://www.wto.org/ Geographical Indications was enacted based on the old Law english/tratop_e/trips_e/amendment_e.htm (accessed on 6 of Trademarks Number 15, 2001. Yet, this regulation is still January 2019). in force since it has not been terminated by the 43 Law Number 13, Article 26(1) (2016). endorsement of Law Number 20. 44 Law Number 13, Article 26(2–3) (2016). 58 Report of National Conference of the Association of 45 Secretariat of the Convention on Biological Diversity, Nagoya Geographical Indications of Indonesia Year 2017 (January Protocol on Access to Genetic Resources and their Fair and 2018) p. 13. European Commission Staff, Report on the Equitable Sharing of Benefits Arising from their Utilization protection and enforcement of intellectual property rights in [hereinafter Nagoya Protocol],https://www.cbd.int/abs/doc/ third countries, at 15, COM (2018), 47 final (accessed on 21 protocol/nagoya-protocol-en.pdf. February 2018), http://trade.ec.europa.eu/doclib/docs/2018/ 46 United NationsConvention on Biological Diversity, Article 2, march/tradoc_156634.pdf. https://www.cbd.int/doc/legal/cbd-en.pdf. 59 World Coffee Research, Safeguarding Coffee Genetic 47 Nagoya Protocol. Resources, Protecting Coffee Forever,
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 191
Journal of Agriculture and Rural Development in the Tropics Journal) 2 (1) (December2013) 1-12, ISSN No. 2337- and Subtropics, 112 (2) (2011). 6597. 62 Maharaja Coffee & Tools, Maharaja Organic Flores Bajawa 73 Hamni A, Akhyar G, Suryadiwansa & Burhanuddin Y,Tarkono, product description,
development strategy), Journal of Research and 95 Nangoy O M & Sofiana Y, Sejarah Mebel Ukir Jepara, Humaniora, 4 Development of Agriculture, 26 (2) (2007) 76-81. (1) (April 2013), https://doi.org/10.21512/humaniora.v4i1.3436. 83 Risfaheri, Diversifikasi Produk Lada untuk Nilai Tambah 96 Ramsay D, Working with wood: The women of Jepara, Forest (Diversification of products to increase the value added of News (6 December 2017), https://forestsnews.cifor. org/ 52430/ pepper), Bulletin Teknologi Pertanian Pasca Panen working-with-wood-the-women-of-jepara?fnl=en. (Bulletin of Post Harvesting Agriculture Technology) 8 (1) 97 Mawardi S, Advantages, Constraints and Key Success (2012) 15-22. Factors in Establishing Origin and Tradition-Linked Quality 84 Caceres E O, Seeking Geographical Indication status for Siau Signs: The Case of Kintamani Bali Arabica Coffee Nutmeg in Indonesia, EU-Indonesia Trade Cooperation Geographical Indication, Indonesia, Case Study on Quality Facility (accessed on 24 March 2018) 00:53. Products Linked to Geographical Origin in Asia carried out 85 Isravivani N, Siau, a small island producing the world’s best for FAO, FAO Fiat Panis (25 May 2009), 15-16; Hanisch S, nutmeg, Uni Eropa Journal,
AYU PALAR et al.: INDONESIAN SYSTEM OF GI’s 193
Seminar about the Figure of Panji in Indonesia), Directorate 112 Geneva Act,Articles 21-22 (2015). of Development of Arts and Film, Ministry of Education and 113 Gervais D, A Look at the Geneva Act of the Lisbon Culture of the Republic of Indonesia & Faculty of Agreement: A Missed Opportunity? In Calboli I & Ng-Loy Performing Arts, Institute of Arts of Indonesia, Yogyakarta W (Eds.), Geographical Indications at the Crossroads of (8 May 2014) 38-45. Trade, Development, and Culture: Focus on Asia-Pacific, 107 In-depth interview with Bulantrisna Djelantik, main founder (2017) 87-121). Cambridge: Cambridge University Press. of Ayu Bulan Dance Group. doi:10.1017/9781316711002.006. 108 Traditional clothes are produced and known with their local 114 Geneva Act, Article 2 (2015). origins: Yogyakarta Batik, Solo Batik, Pekalongan Batik, 115 Geneva Act, Article 5(4) (2015). Tuban Batik, etc. 116 TRIPS Agreement, Article 3(1) (1994) states that “[e]ach 109 Negotiators Adopt Geneva Act of Lisbon Agreement at Diplomatic Member shall accord to the nationals of other Members Conference, Geneva (20 May 2015) PR/2015/779 treatment no less favourable than that it accords to its