THE PROTECTION OF TRADITIONAL
KNOWLEDGE AND TRADITIONAL
CULTURAL EXPRESSION
A COMPARATIVE APPROACH
By:
Dr. NK Supasti Dharmawan, SH., M.Hum., LLM. Putu Aras Samsithawrati, SH., LLM.
Presented in the International Seminar on
“Recognition and Protection of Local Communities’ Rights and Traditional Knowledge”
Dr. Ni Ketut Supasti Dharmawan,SH,M.Hum,LLM
• is a Senior Lecturer at Private Law Department of Faculty of Law Universitas Udayana
(FL UNUD)
• Teach business laws and intellectual property rights (IPR) law
• Participated in IPR course in UTS Sidney and IPR training in Japan Patent Office, Tokyo. • Obtained bachelor of law at FL UNUD, master of laws and Doctor of Law at
Universitas Diponegoro, and Master of Globalisation and Law at Maastricht University.
• Experienced organizing institutional and academic programs with foreign partner,
including, inter alia, as Project Manager of NPT Nuffic IDN 223 cooperation between including, inter alia, as Project Manager of NPT Nuffic IDN 223 cooperation between FL UNUD and Maastricht University and as an Associate Director of Centre for
Commercial Law and Economics in Cooperation with San Fransisco University School of Law.
• Currently serve as Head of Master of Law at Postgraduate Program Universitas
Udayana.
• Published many publications include; Global Tourism and Environment: Toward
•
is a lecturer at International Law department of FL UNUD and
assisting several courses such as International Law,
International Contract Law and International Business Law
•
Received her bachelor degree at FL Universitas Indonesia and
master of Globalization and Law Specialization of Corporate
Putu Aras Samsithawrati SH,LLM
OUTLINE PRESENTATION
1. Introduction
2. Legal Issues
3. The Traditional Knowledge and Traditional
Cultural Expression (TCE) related with IPR Law
4. Some specific issues : the law enforcement of
4. Some specific issues : the law enforcement of
IPR related to tourism and the Traditional
Knowledge and Traditional Cultural
•
Protecting Traditional Knowledge (TK) and
Traditional Cultural Expression (TCE) under
IPR regime
debatable issue for such a
long time.
INTRODUCTION
long time.
•
TRIPs Agreement as a comprehensive
convention of IPR in international level
silent concerning this matter.
•
However, WIPO
pays attention in
•
Indonesia
TCE is protected under
Indonesian Copyright Law:
Old Law (Law No. 19 of 2002)
Give more
protection for TCE and mention clearly the TCE
(Art. 10(2))
New Law (Law No. 28 of 2014)
regulates TCE in
general terms.
general terms.
Although the protection is still in general, it can be
considered that there is room to protect TCE in
•
Whether Traditional Cultural
Expression (TCE) is suitable to
be protected under IPR
regime?
LEGAL ISSUES
regime?
•
If yes, under which IPR
regime?
•
How to determine that the
World Intellectual Property Organization (WIPO)
particularly WIPO’s booklet known as Traditional Cultural
Expression.
Although Traditional Cultural Expressions is still debatable,
Traditional Knowledge (TK) and Traditional Cultural
Expression (TCE) related with
IPR Law
Although Traditional Cultural Expressions is still debatable,
whether those works covered by Intellectual Property Law
or not, those issues greatly got attention from WIPO, more
importantly based on Article 31 United Nations Declaration
on the Rights of Indigenous Peoples also provides
WIPO’s extensive fact
finding & consultation since
1998
TCE should be guided
as far as possible by the real
TK
is a living body of knowledge that is
developed, sustained and passed on from
generation to generation within a community, often
forming part of its cultural or spiritual identity.
Example of TK:
Agricultural
What is TK?
Agricultural
environmental
medicinal knowledge
knowledge associated with GRs
knowledge
concerning traditional medicines,
traditional fishing/hunting techniques,
animal migration patterns
water management.
TCE
The forms in which traditional culture is expressed.are seen as integral to the cultural and social identities and heritage of indigenous and local communities, reflectingcore values and
beliefs.
TCEs are handed down from one generation to another, and are
maintained, used or developed by their holders. They are constantly evolving, developing and being recreated.
What is TCE?
evolving, developing and being recreated.
May be either tangible, intangible, or, most usually, a
combination between them.
Example of TCE:
verbal expressions: stories, tales, poetry
Musical expressions: songs and instrumental music
Expressions by actions: dances, plays, artistic forms of ritual
Tangible expressions: drawings, paintings, carvings, jewelry, costumes, musical instruments.
Former Indonesian Copyright Law (Law No. 19/2002)
Consideration Section of letter “a” of Copyright Law states
"whereas
Indonesia is a country with diverse
ethnic/tribal people and cultures as well as its richness
of art and literature that require the protection of
intellectual property rights which derives from such
diversity
".
Therefore, the creations which have the legal protection are
Therefore, the creations which have the legal protection are
not only the individual, but also the communal works of
folklore and all other folk cultures that belong to the people,
e.g. folktales, fables, legends, chronicles, songs, crafts,
choreography, dance, calligraphy and other artworks
Stipulated in
Article 10 of the Law No.19/2002.
INDONESIAN COPYRIGHT LAW
OLD LAW
NEW LAW
Art 10:
(1) The state shall hold the copyright for works from prehistoric remains,
historical and other national cultural objects.
(2) The state shall hold the copyright for folklores and works of popular culture
Art. 38:
(1) Copyright on TCE are held by the state
(2)The state shall inventory,
maintain, and preserve TCE
as referred to in par (1)
(3)The use of TCE as referred to
folklores and works of popular culture that are commonly owned, such as stories, legends, folk tales, epics, songs, handicrafts, choreography, dances,
calligraphies and other artistic works. (3) To publish or reproduce the works as
referred to in par (2), any person who is not the citizen of Indonesia shall, firstly, seek permission from the institution related to the matter.
(3)The use of TCE as referred to
in par (1) must consider the
values that live in the
IPR protects TK and TCE?
•
Copyright --- TCE
Arts
•
Industrial design --- TCE
Arts
•
Trademark --- TCE
Arts (dance),
name of TCE
name of TCE
dance
•
Patent --- TK
GRs, herbal
medicine
How to determine that the works belong to TCE and
not belong to individual’s work
•
Indonesian Copyright Law:
State
, inventory, maintain and preserve TCE
Carefully identify
TCE --
shall be valid indefinetely
Modification of TCE –
50
years
Individual creation work –
70
CONCLUSION
•
TCE considered can be protected under IPR
regime
WIPO, Indonesian Law
•
The protection of TCE related to copyright,
patent, trademark, industrial design, trade
secret
secret
•
The state works with the caretaker community
