PROTECTION OF THE NEW WAYANG KULIT CHARACTER AS THE CREATION OF SHADOW MASTER (KAWI DALANG) FROM INDONESIAN AND AUSTRALIAN COPYRIGHT LAWS PERSPECTIVE.

PROTECTION OF THE NEW WAYANG KULIT CHARACTER AS THE CREATION OF SHADOW MASTER (KAWI DALANG) FROM INDONESIAN

AND AUSTRALIAN COPYRIGHT LAWS PERSPECTIVE

by

Made Panji Wilimantara* Gavin Robins** Putu Aras Samsithawrati***

* Bachelor Student, Faculty of Law, Udayana University

** Bachelor Student, Faculty of Law, Charles Darwin University ***Lecturer at International Law Department, Udayana University

Abstract

Wayang kulit (Shadow puppet) is a form of art that has been practiced for centuries in Bali as both, ceremonial and artistic entertainment. Historica lly, wa yang kulit was exclusively performed by specific families believed to have obtained revered knowledge from their ancestors who themselves practiced as dalang (shadow ma ster). Recent evidence demonstrates that wa yang kulit is now taught in the formal higher education system. As an artist, the dalang often creates new imaginative and innovative wayang kulit characters. These chara cters distinguish the crea tive act (Ka wi Dalang) of this artist from the tra ditional act. Difficulties arise when other people - artists copy newly created wayang kulit characters without the permission of the creator or copyright holder, for personal economic gain through unauthorised performances or sale as a souvenir. These actions appear to infringe the copyright entitlements of the creator/dalang or the copyright holder. This normative legal research is conducted utilizing comparative study of statutory provisions and qualitative methods to analyze the findings. The research discusses the protection of wayang kulit under Indonesian Copyright La w (La w No. 28 of 2014) and contrasts this with Australian Copyright La w (Copyright Act 1968) and forms an opinion as to the effectiveness of the protective mechanisms afforded to artists in the respective jurisdictions. The research shows that the legal systems of Indonesia and Australia share common intents and purposes in respect of copyright law. Both countries have measures that enable the rights of individuals to be protected and remedied though non adjudicatory and adjudicatory dispute processes. Measures to improve the accessability and knowledge regarding copyright la ws have been considered.

Key Words: wayang kulit, copyright, protection, Indonesia, Australia

Abstrak

Wayang kulit adalah sebeuah bentuk kesenian ya ng telah dipraktekkan di Bali selama berabad-abad baik sebagai sebuah media pelengkap dalam upaca ra (adat/keagamaan) maupun sebagai sebuah pertunjukan seni. Secara historis, pertunjukan wayang kulit hanya di pertunjukan secara eksklusif oleh keluarga-keluarga yang seca ra spesifik dipercaya melanjutkan kecakapan/pengetahuan mendalang dari leluhurnya yang menjadi dalang. Perkembangan terkini menunjukan bahwa wayang kulit telah diajarkan dalam pendidikan formal tingkat tinggi. Sebagai seorang seniman, Dalang sering kali membuat karakter wayang baru yang imaginative dan inovatif. Karakter ini yang membeda kan tindakan kreatif (Ka wi Dala ng) dari seorang artis dari tradisional. Masalah muncul ketika orang lain – dalang meniru karakter baru wayang kulit itu tanpa izin dari pembuatnya atau pemegang hak ciptanya untuk mengeruk keuntungan ekonomi dengan menggunakannya dalam pertunjukan mereka atau menjualnya sebagai souvenir. Hal ini menunjukkan bahwa telah terjadi pelanggaran hak cipta dari si pembuat/dalan atau pemegang hak cipta . Penelitian ini adalah sebuah penelitian hukum normatif yang menggunakan pendekatan statuta dan komparatif dengan metode kualitatif untuk menganalisa data. Untuk Penelitian ini mengkaji perlindungan wa yang kulit pada peraturan mengenai Hak Cipta di Indonesia (UU No.28 Tahun 2014) untuk dibandingkan dengan Undang-Undang Hak Cipta Australia (Copy Right Act 1968) serta menganalisa mekanisme perlindungannya baik dari peraturan Hak Cipta Indonesia dan Australia terhadap pelanggaran ini. Penelitian menunjukkan bahwa baik itu system hokum di Indonesia dan Australia keduanya memiliki kehendak dan tujuan yang sama. Kedua negara memiliki langkah-langkah yang memungkinkan individu untuk mendapat perlindungan dan upaya hukum melalui penyelesaian hukum non adjudika si dan a djudikasi. Langkah-langkah guna meningkatkan aksesabilitas terhadap hukum Ha k Cipta dipertimbangkan dalam penelitian ini.

Made Panji Wilimantara1, Gavin Robins2, Putu Aras Samsithawrati3

I. Introduction

Wayang kulit is the oldest shadow puppet performed in theatrical form in Bali; it has existed from the formative period of Balinese culture. It forms an integral part of the lives of Balinese people, in both spiritual and artistic forms, inseparable from the Hindu beliefs of the majority Bali population. Balinese people still believe wayang kulit connects them with their past, present and future lives. It survives for both ritual4 and entertainment purposes; it is a teaching medium for the people in their religious, political, and social life5. It is claimed that the wayang kulit is utameng lungguh, holds the highest status in Balinese cultural life.6 Angela Hobart said that, "The Occasions when wayang kulit is performed emphasizes how intimately it is bound up with the religious life of the villagers".7

The dalang usually presents the wayang kulit in a theatrical way, using the puppet (wayang). The wayang kulit is usually carved in flat leather cow or buffalo hide using highly stylized shapes and colors. They represent human characters from ancient or historical stories8, Gods, demons, animals and scenery or props. In the performance, the dalang uses an oil lamp to project the wayang kulit’s shadow onto a screen. As the central performer of the wayang kulit performance, dalangs are usually expected to have a large repertoire of creative characters and improvisations due to the significance of his role in uniting the characters, story and music.9

Throughout the centuries, wayang kulit has been able to survive and flourish despite modern society and globalization. The skill and creativity of dalang has adapted wayang

1

Bachelor Student, Faculty of Law, Udayana University. 2

Bachelor Student, Faculty of Law, Charles Darwin University. 3

Lecturer of Intenational Law Department at Faculty of Law Udayana University. Obtained Bachelor of Law (SH) from Universitas Indonesia (2013), Master of Law (LLM) from Maastricht University the Netherlands (2014).

4

It can be seen in many ritual that held with the media of wayang kulit performance that this performance is believed to purify people like the holy ceremony of: (1) Sapuh Leger/Mpu leger, the ritual which is held for the child or people who born in the Wuku Wayang, the week of 27th in Balinese calendar (the story of the performance is based on Lakon Murwakala/ the born of God Kala); (2) Pawtuan/Oton is the birthday ceremony in Balinese calendar (the story to be performed is freely chosen by the dalang); (3) Telu Bulanan

is ritual when a new baby born is three months old (the story to be performed is based on the hero's born story like the born of Hanuman or Gatotkaca); (4) Pa wiwahan is the wedding ceremony (the storyto be performed is based on the hero's marriage story, like Bale Murda Manik or the Bimaniyu‟s marriage); (5) Pengabenan is cremation ceremony (the story used is from Bhima Swarga or the Bima and Pandawa's journey to the hell to save their parents soul) and many others. In a ritual activity, people ask the Dalang to make Tirta Panglukatan Wayang (the holy water from wa yang kulit which made by the Dalang with many formulation of prayers and offerings) to save the people souls from leteh (non-purified condition of the soul that make them can't reach the spiritual growth).

5

Dalang is also known as Guru Loka (the teacher among people) to enlighten the society's life. 6

For example in the performances of: (1) Wayang Lemah (wayang kulit that is performed in the morning or middle of the day based on the day light without screen and oil lamp. The performance only uses the cotton yarns which bound in the Dadap Tree/Erythrina Variegata); (2) Wayang Sudhamala (uses the sudhamala

story in its repertoire to purify any purporses); and (3) Empu Leger. See Ketut Rota, "Rhetoric as

Performance Language in Balinese Wayang Kulit Show” [“Retorika Sebagai Bahasa Panggung dalam Seni Pertunjukan Wa yang kulit Bali"](Research Report, Denpasar: STSI Denpasar, 1990).

7

Angela Hobart, Dancing Shadows of Bali, Theater and Myth (London: Dotesios Printers Ltd, 1978), p. 24. 8

Traditionally, the wayang kulit performance usually uses two main epic Hindu stories as the story board. Those two are Wayang Par wa which uses the story of Mahabarata, and Wayang Ramayana which uses the story of Ramayana as the repertoire.

9

kulit to subtle societal changes, ensuring the wayang kulit performance remains relevant to the modern life of Balinese people. This creative element is known as Kawi Dalang - the creativity (Kawi) of the dalang. Creativity is not only essential to the survival of the genre, but ensures each production to be distinct and unique. Kawi Dalang demands each and every performance be changed to reflect the changing place-time-circumstances, or desa-kala-patra as it is known to Balinese people.10 Kawi Dalang is a term referring solely to the dalang's creativity and improvisation in his or her performance. Kawi refers to two different things: firstly, an action of aesthetic creation by the artist, and secondly, the name of a language. Used in the context of creativity, Kawi means creation, improvisation, invention, or modification. The composer of a play is called pangawi – the person who created a kawi.11 Kawi Dalang in wayang kulit performance consists of many acts, organized and spontaneously improvised to create imaginative, colorful and surprising performances that use music, characters, word play movement and activity to create performances the surprise and excite.12

Dalangs draw inspiration from the works of the old artists. It is not uncommon for artists to imitate or copy the ideas of other artists, creating a performance that reflects the

work of each other‟s puppetry style. These are both in composing stories (lakon), packing the forms of performances, the puppets form creation, even to the jokes. It is because the psychological understanding of the artists, especially for the traditional artist. It became an honour for the artist that their works used by the other artist. Moreover, the concept of ngayah, which is promoted by Balinese traditional artists, takes art as a medium to foster and educate the public as their charitable and social work. However, when these concepts intersect with commerce, the right to copyright protection crystallizes. The issue is that of other people copying a new wayang kulit character without the permission of the creator for economic purposes for personal gain. This results in a copyright infringement, depriving the dalang of the ability to derive the economic and moral value of their creations. Commonly, the copyright of dalangs is not well understood by Balinese traditional artists.

This research uses a comparative approach to review the statutory copyright protections of afforded by Indonesian Law No. 28 of 2014 concerning Copyright and the Australian Copyright Act 1968. As Bali is part of Indonesia, in which the civil law prevails, this research will attempt to compare the protection of puppetry and art related to it, from the perspective of the copyright regime of Australia, a common law jurisdiction. The analysis will examine firstly, whether wayang kulit would be protected under Australian copyright law as well as Indonesian; and secondly, whether Indonesian copyright law and Australian copyright law provide a mechanism to resolve copyright infringement of wayang kulit. The research will briefly consider the question of copyright in an international context.

10

Ibid., p. 2. 11_Ibid. 12

II. The Protection of Wayang Kulit Under Indonesian and Australian Copyright Law Dimensions

A. Wayang Kulit and Its Development

The island of Bali in Indonesia, is famed for its traditional cultures and beauty. The Balinese community is one of many communities in Indonesia that strongly preserve its cultural heritage. Bali‟s cultural heritage makes it a world renowned tourist destination where traditional performances attract large numbers of tourists. Performances such as Legong dance, Barong dance, Kecak dance, drama gong (theatrical performances combined with humour) and wayang kulit.

Wayang Kulit is a performance tradition, evolved in parallel with societal changes of the Indonesian people, especially the Balinese people. Wayang kulit is part of a tradition that has been passed down from one generation to the next. It is grounded in values of truth and right, and is voluntarily preserved by community respect and practice, without any element of coercion.13

In everyday Bali, many dalangs are creating evermore objects to construct equally creative Balinese wayang kulit performances. There are several wayang genres and two forms of wayang wong14dance-drama. Among the many existing genres, the Wayang Parwa and Ramayana remain the most prominent of all genres, becoming the soul of Balinese wayang genres. These are the genres fundamental to wayang, essential to the dalang’s performance art. Because the repertoire within the story of Mahabarata and Ramayana, both emanating from the Indian / Hindu epic, has many dramatic scenes, dalangs have a rich tapestry of diversity and adaptable performance capability. There is also wayang kulit that uses Indonesian stories as source material and includes Wayang Gambuh15, Wayang Cupak16, Wayang Calonarang17, Wayang Sasak18.

The innovation and creativity of dala ngs is now more highly developed and competitive. Occasionally, dalangs create joint or collaborative works with local or foreign artist. The transition from conservative traditional forms of wayang to the innovative form of today commenced in 1970s, and since 1990s modern developments became more clearly recognizable. While there are examples of the innovative works of wayang kulit,

13

Ki Kasidi Hadiprayitno, "Development and the Future of Pedalangan Gagrag Yogyakarta Art”

["Perkembangan dan Masa Depan Seni Pedala ngan Gagrag Yogyaka rta”], Submitted to the Wayang Indonesia Meetings, 1999. Held by Senawangi and Pepadi Center works, TMII-Jakarta, January, 8th -10th, 1999), p.2

14_{Wayang wong}

is wa yang performance which use human dancer as the media to explain the story. They act with dance and using specific masks. For each type, Parwa and Ramayana, they both have their own rules as to decide which dancer should use mask.

15

It comes from Majapahit kingdom era. Wayang Gambuh is performed along with Gamelan Paga mbuhan

as its music, uniquely lead by long bamboo flutes with the artistic melody. See also, I Nyoman Sedana,

Op.Cit. p.23. 16

The story of this genre is solely derived from Geguritan Cupak Grantang. It is about the Cupak and

Grantang brotherhood story that have an opposite personality that is originated from Tabanan Regency, Bali.

See also, I Nyoman Sedana, Op.Cit. p.26 17

The story is basically about the mystical dark magic of Walu Nata, the woman's the widow king of Dirah, who angry because of the rejection from Airlangga the king of Kediri to married her child Ratna Mangali. She sended an witchcraft and illnes to the Kediri Kingdom. See also, I Nyoman Sedana, Ibid., p. 24-25. 18

Wayang Sa sak is originated from Sasak, Lombok. The form is now found in Karangasem, the eastern part of Bali. The narrative repertoires are taken from Muslim myths, which are recorded in the Serat Menak manuscript, primarily featuring the victory of Islam in Arabia. See I Kadek Widnyana, "Field Research

they retain their traditional roots. These are (1) Wayang Arja (that transforms the Arja19 drama in Bali into wayang form) by dalang Made Sija in 1976; (2) Wayang Tantri20which was first created in 1980 by ASTI21 (Akademi Seni Tari Indonesia) in Denpasar; (3) Wayang Babad22, first created by I Gusti Ngurah Serama Semadi in 198923. One of the many examples of the innovative modern works of wayang kulit performance is Wayang Listrik; it is a collaborative work of dalang I Wayan Wija, dalang I Made Sidia, many other dalang and American, Lary Reed.24. Unfortunately, the traditional wayang kulit stages (such as in Bale Banjar25) cannot accommodate the dynamic shifting of theatrical scenic effects demanded by these compositions. Therefore, this traditional performance can only be performed through collaborative performances between local dalangs and foreign artists.

In 1960, innovation in the presentation of wayang kulit performances was started by Dalang I Ketut Rupik. He performed the wayang using a truck stage, and a mounted enclosure that concealed his assistants (ketengkong) and musician. He became known as the dalang who created travelling wayang. Occasionally, he used unlikely representations in his performances, including scenes involving planes, motorbikes and cars in exaggerated scales26. With the new millennium, Dalang Cenk Blonk, or I Wayan Nardayana was the pioneer of an innovative movement in developing the traditional format of wayang kulit. After commencing bachelor studies in ISI Denpasar around 2004, he experimented with ideas to return the wayang performance to its former glory as the performance of the ages for all people. Nardayana work was characterized by humor, frank dialogue and contemporary issues. He is a continuous innovator, using coloured light and sound effects to create illusions and to support the story; he uses an unusual display screen (kelir) of 6 x 1.5 meters in his performances.27 He also uses the enlarged wayang puppet, again distinct from the common tradition of small compositions. Further, at only 211/2 hours in length, the duration of Nardayana's show is also unlike the traditional all night performance. He uses gerong – female singers (sinden) to accompany the wayang performance.

These adaptations and innovations make the wayang kulit performance attractive to audiences of all ages and ensures the contemporary nature of wayang kulit. Following in Nardayana‟s footsteps, many dalangs such as Dalang Joblar ABG (I Ketut Muada) and

19_Arja

is a kind of typical Balinese opera. It is a dance drama with singing as a media to communicate the dialogue or known as macapatpupuh and use gaguntangan as its music.

20

Wayang Tantri based its story from Kidung Tantri Kamandaka, wich is a "story in story" model of famous poetry in Bali. There are many stories inside it mostly the fabel story. Now days, Dalang I Wayan Wija has develop wa yang tantri not only based from the Tantri Kamandaka story, but also every fable story that presented refers to Wayang Tantri.

21

Now is known as ISI (Indonesian Institute of Art) Denpasar. 22

Wayang Babad uses story from Babad which is the historical and legend stories that connected with the Kingdom's era of Bali. Therefore, these stories guide Balinese people to their ancestors stories.

23

I Nyoman Sedana, Op.Cit., p. 19 24

This wayang kulit performance (Wayang Listrik) is a combination between European theater and Balinese

wa yang kulit that using wide screen, projector to give realistic view of scenery and skateboard as the chair for the dalang as to make him to move easily and dynamically. Additionally, people also call this Wayang Listrik as Wayang Skateboard. See Catherine Diamond, "Wayang Listrik: Dalang Larry Reed's Shadow Bridge between Bali and San Fransisco". (Theater Research, Cambridge: Cambridge Journal, 2001) p. 257-276.

25

A place where customary communities in Bali usually gather for a mood court, custom meeting, as well as a multipurpose hall, sometimes it also used to held a performance both for ceremony purposes or for entertainment.

26

Lontar Digital Library, Wayang Kulit Luk-Luk, http://dl.lontar-library.org/gdl.php?mod=browse&op=read&id=jkpklontar-ldl-8755, Accesed on 8 Desember 2015.

27

Dalang D' Karbit (I Made Nuarsa)commenced innovative wayang performances that accommodated audiences of far greater numbers.

Other attempts to adapt traditional wayang kulit to Balinese modern life can be seen at the educational level. For example, the Pedalangan Department at the Faculty of Performing Art of ISI Denpasar, has encouraged its bachelor students completing their final project to redefine, reform and re-orchestrate the wayang performance. From 2014, students have made innovative use of widescreen and multiple screen technology, modern lighting by strobe and spot-lights and the use of overhead-projectors enhance the realism of images and background. Similarly, they have used many puppet players, one or more dalang as narrator(s), using wayang golek (puppets that made in three dimension form), created new wayang kulit characters and many other creative movements28. This movement by students has influenced the development of Balinese wayang performances. This article now turns to the discussion of the protection of a new wayang kulit character under the current copyright laws.

B. Copyright Protection of Wayang Kulit

Intellectual Property Rights (IPR) is a general term expressing an exclusive right to recognition for the creativity of the human mind or personal effort, and has defined economic value29. IPR are rights that protect the economic and moral rights of the minds of individuals. In the context of the dalang, protections are necessary to recognize his creative endeavor, the outcome of which is both tangible – creation of a wayang kulit, and intangible, the creation of a new character or performance.

In Indonesia, two categories of IPR are recognized. Industrial Property, includes patents, industrial design, geographical indication and trademarks, and Copyright30, which includes works or creations in the literary, music and artistic fields. This article analyzes the legal issues arising from the copyright protections afforded by Indonesian copyright law, and contrasts these with Australian copyright law.

Before discussing specific national copyright protections, it is relevant to note that at the international level, Indonesia and Australia are parties to the Berne Convention for the Protection of Literary and Artistic Works (1986) and the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPs) 1994. Consequently, they have respectively adopted and generally implemented copyright provisions consistent with the intent of these agreements in Indonesia Law No. 28 of 2014 concerning Copyright, and in Australia under the Copyright Act 1968.

Article 1 (1) of Indonesian Law No. 28 of 2014, states that “Copyright is the exclusive right of the creator that arise automatically based on the principles of declarative after

invention is embodied in a tangible form”. The Act, generally defines (Article 1 (2)) a creator to be a person or persons who individually or jointly produce a creation (article 1 (3) that is unique and personal, and is one which belongs to the fields of science, art and literature. Creations are produced on inspiration, ability, thought, imagination, dexterity, skill or expertise expressed in a tangible form. It is embodied in a tangible form without prejudice to the restrictions set out in the provisions of the legislation.

28

It is based from our observations on the creation works at final exams in Pedalangan Departement, Faculty of Performing Arts, ISI Denpasar, and hold on May 2014.

29

Andy Noorsman Sommeng, La w Enforcement on Intellectual Property Rights (Penegakan Hukum di Bidang Hak Kekayaan Intelektual), 2007), p. 10

30

In contrast, the Copyright Act 1968 Cth31 states that copyright arises immediately the creator gives his or her object expression by committing it to writing, image or some other form capable of reproduction.

It is important to the artist that to get the IPR, they sould make their idea real in a tangible form that can be sense, seen, and hear. LJ Taylor Rachmadi Usman was quoted as saying in his book Law of Intellectual Property Rights Protection and Legal Dimensions in Indonesia that protected Copyright is the expression of an idea, so not protect the idea itself. Where this means that protected Copyright is already in a tangible form as a creation, not still an idea.32 TRIPs Agreement also said that Copyright protection include expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. It can be seen from the wording of Article 9, Paragraph (2) TRIPS Agreement said: "Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such." Moreover, the Berne Convention also implies similar things that work in the fields of science, art and culture are protected when it is already in the form of expression is through the provision of Article 2 Paragraph (1) of its namely: "The expression" literary and artistic works "...".

Wayang kulit as the cultural heritage, both has material (tangible) and immaterial (intangible) artistic values. The tangible part can be seen in its material tools that use in the performance like wayang (the puppets), screen, the music instrument, and others. The intangible part can be seen in its component based on the artist act that include the dalang improvisations in Kawi Dalang acts, the story of the performance, the poetry, the song, the music melody which accompany the performance, the jokes, and many others. Folklore or Traditional Cultural Expression (TCE) is anything that is considered common property or a community or a society, and the creation of anonymous. UNESCO has included wayang as a Master Piece of Oral and Intangible Heritage of Humanity as a world cultural heritage from Indonesia, and it was declared after Convention ForThe Safeguarding of Intangible Cultural Heritage on November 7th, 200333, that valid in entry force of 2006. Cultures or folklore which previously entered into the convention, including wayang kulit as the Master Piece of Oral and Intangible Heritage of Humanity incorporated into the International Convention for the Safeguarding of Intangible Cultural Heritage. Wayang Kulit registered as a representative list in Intangible Cultural Heritage (ICH). This convention has been ratified by Indonesia in the form of President's Decree (Peraturan Presiden) No. 78 of 200734.

Actually part of wayang kulit that is categorized as intangible folklore ("intangible cultural heritage")35 by the UNESCO is fall within the scope of Article 38 (1) of Indonesian Law No. 28 of 2014 concerning Traditional Cultural Expression. This Article basically states that the copyright of this creation is held by the country. Folklore is closely

31

Laws passed by the Commonwealth of Australia are denoted by the abbreviation Cth. State and Territory laws are denoted by the relevant abbreviations in the title such as NT for the Northern Territory.

32

Rachmadi Usman, La w on Intellectual Property Rights: The Protection and Its La w Dimension in Indonesia (Hukum Hak Atas Kekayaan Intelektual: Perlindungan dan Dimensi Hukumnya di Indonesia),(Bandung: Alumni, 2003) p.121.

33

UNESCO, Intangible Culture Heritage, www.unesco.org/culture/ich/en/convention, Accessed on 5 December 2015.

34

It is About Ratification of Convention For Safeguarding Of The Intagible Cultural Heritage. 35

related to indigenous peoples such as the creation of literary and artistic works such as legends, dances, ceremonies, and so is the legacy of intergenerational an indigenous community. However, for the new innovation and creation of a wayang kulit character (tangible part), it is fall under the protection of Article 40 (1) of Indonesian Law No. 28 of 2014. Article 40 of Law No. 28 of 2014 is basically regulates types of creations protected under Indonesian copyright law. Furthermore, the protection of wayang kulit can be seen specifically under Article 40 (1) letter (e) where it states pewayangan (or puppet or wayang kulit in this case) is one of the creations protected under this Law. The main difference between wayang kulit protected under Article 38 and 40 of Indonesian Law No. 28 of 2014 is that for wayang kulit that is fall under Article 38, the copyright is held by the country (Indonesia) meanwhile for the new creation of wayang kulit character that fall under Article 40 (1) (e), the copyright is held by individual. This article deals with wayang kulit that fall under the protection of Article 40 (1) of Indonesian Law No. 28 of 2014, which is the new wayang kulit character.

With regard to the creativity process, a source of inspiration in the creation of works of art is very broad and free, almost anything that can be seen and thought to have the potential and charm to been turned into works of art. Some artists want to be recognized existence and his works, by displaying the character, different styles in his work reveals. Dalangs usually get inspirations from the works of the earlier artists. For example the inspiration in Wayang Arja that inspiration comes from one kind of performace that exist in Bali, the Arja drama, transforming into wayang form by dalang Made Sija in 1976. It has an intelectual values that must be the right for the creator as an appreciation both in economic and social values for their masterpiece.

But sometimes the dalang like indifference to its own intellectual rights. They are promoting a sense of kinship and mutual support between artists. They assume that the art belongs to the people. Custom base background is inherent in traditional Balinese as an communal live. They believe that community shape them into neighborhood artists who live, grow, and evolve from the community, by the community and for the community. They assume that all they have and create not merely his own, but belongs to the community. So that the people of Bali is famous for their arts and community bound that are closely intertwined with each other. It is a tradition concept that has been inheritable across generation and time which construct the Balinese Arts. Beside it is a good concept, but it‟s also invite problems when connected to both economic and business interest. For example, if other people copying a new wayang kulit character without permission from the creator for economic purposes (by using it in their performances or selling it as souvenir).

For Examples of new wayang kulit character, we can assess from one performance of Pedalangan Department at the Faculty of Performing Art of ISI Denpasar. It is a Wayang Sejarah Kamardikan36 that created by I Putu Rekayasa, the bachelor student which just graduate from his study in ISI Denpasar on July 28th, 2015. He makes a new kind of wayang performance that the focus of the story is the heroic fighters in the nation gained independence against colonialism occupation. On this performance, he used the story of Banjar War in 1868 in Buleng Regency. On that time, the Banjar Recident was lead by Ida Made Rai. As a retainer of Banjar, he was strongly oppose oppression that carried out by the Netherlands. Backed by people of Banjar, he was joining forces to defend Banjar District from attacks that would be carried out by the Netherlands to Banjar. Dutch did not

36

It base from his vision to make wayang performances as media to learn about the nation independent's patriotic history (Sejarah Kema rdikan). See also: Putu Rekayasa, “Scripts of Kemardikan Pakeliran History:

remain silent, with the help of Regent I Gusti Ngurah Ketut Jelantik, Banjar District in an all-out attacking that time. In the performance, Putu Rekayasa tried to combine the wayang kulit and human theater in one concept of performance. He also used the wayang puppets based on the characters that were on the story. He used more than 15 puppets on his performance. What made it so unique and different from other wayang is, he used the Dutch regents character based on the story. They are Major Heemskerk and Lieutenant Wig Steigman characters as the Dutch employers in Buleleng.

Picture 1.Major Heemskerk and Lieutenant Wig Steigman characters as the dutch employers in Bulelengin a meeting with Patih (adviser of the king) Liarta and Regent I

Gusti Ngurah Ketut Jelantik, the King of Buleleng.

From this example, the creation of wayang can be protected under Article 40 (1) (e) of the Indonesian Law No.28 of 2014. According to Article 1, Paragraph (1), the wayang Belanda (Dutch puppets) of Major Heemskerk and Lieutenant Wig Steigman are exclusive creations of their creator, Dalang Putu Rekayasa, that arise automatically based on the declarative principle following creation of the object. The wayang Belanda (Dutch puppets) created by Dalang Putu Rekayasa's are automatically protected by this law. The puppets have been embodied in a tangible form – a video recording of the last exam in Faculty of Performing Art of ISI Denpasar. Furthermore, Copyright protection regime generally knows the automatically protection system. Where the system confirms that since the fixation process is completed, since that time the Creator enjoys legal protection, without the need for formalities such as registration or enrollment.37 This protection

system can be seen from the provisions of Article 1 Paragraph (1) Indonesian Law No. 28 of 2014 specifies that Copyright is the exclusive right of an Author or the Copyright Holder to publish or reproduce his work, which arises automatically after a creation born without reducing restrictions according to the applicable laws and regulations. Thus, the creation of creative works of pedalangan as well as automatic protection after such a work is born within the meaning of the idea already set forth in the obvious form, was announced, and original. Therefore, if one copying those new creations of wayang kulit character for business purposes without any permission from the creator, it can be seen as copyright infringement under Indonesian Law No. 28 of 2014. It should be noted that the creator has what so called as moral right and economic right38. However, there are

37

Agus Sardjono, Copyright La w in Graphic Design (Hak Cipta Dalam desain Grafis), (Jakarta: Yelow Dot Publishing, 2008) p. 19.

38

provisions that deal with the limitation of what is called as a copyright infringement under Article 43-50 of Indonesian Law No. 28 of 2014.

Although the Copyright protection system in Indonesia is Automatic protection system as described previously in Indonesian Law No. 28 of 2014, however this law provides provision concerning registration of a creation. It can be found in Article 64 (1) of Indonesian Law No. 28 of 2014 where it states that the Directorate-General administer the registration Creation and recorded in the Register of Directorate General of Intellectual Property (Dirjen HAKI). Basically towards Creation, although registration is not mandatory, for the sake of proving that there is a dispute later on should Copyright registered to the Dirjen HAKI.39 Thus registration here is as a way to facilitate future verification process if there is a dispute one day. Registration is not a requirement, but it becomes important when there is a dispute in one day. This is in line with the provisions of Article 64(2) of Indonesian Law No. 28 of 201440 and Article 31 Indonesian Law No. 28 of 2014.

Regarding the validity of copyright and related rights on works of pedalangan artistic works, it is explained in Chapter IX about Duration of Copyright an Related Rights, Expiration Copyright, paragraph One, Article 57 in Paragraph (1) said that the moral rights of the Creator as referred to in Article 5 paragraph (1) letter a, b, and e (included wayang) valid indefinitely. In Article 58 Paragraph (1) explained that validity period of Economic Rights of wayang in point (e), valid for the life of the Creator and continued for 70 (seventy) years after his death, starting from January 1 next year. In Paragraph (2) explained that when an application is referred to in subsection (1) is owned by two (2) or more persons, protection of Copyright is valid for life Creator who died most recently and lasts for 70 (seventy) years thereafter, commencing 1 January next year. In Paragraph (3) explained that the Protection copyright to a work referred to in paragraph (1) and paragraph (2) which are owned or held by the legal entity shall be valid for 50 (fifty) years since the announcement was first made. For that time, the Copy Rights of wayang Belanda are belongs to Putu Rekayasa. Any kind of rights include economic and social rights are belongs to Putu Rekayasa.

While there is no direct Australian equivalent of the protections of wayang kulit, there are a number of significant similarities between the respective copyright regimes of Indonesia and Australia. In Australia, the legal protection of intellectual property is grounded in the intangible personal right to be recognized for, and gain for a finite period,

the commercial advantage arising from „products of the human intellect‟.41

The statutory intellectual property frameworks supporting this principle are designed to encourage and protect the product of individual or joint labour and endeavor, not necessarily creativity.

Copyright in Australia is considered to be a bundle of economic and moral rights conferring on their owner, the exclusive right to act and to deal with the object protected by the copyright. As with Indonesian copyright, the creation of an object automatically confers the protection of copyright; there is no requirement to formally register the object. Subject to Section 31 of the Copyright Act 1968, copyright in original works is generally the exclusive right of the copyright owner to deal with the object in any way that is legally permissible. The copyright owner is the creator of the original work, or is any other person or entity legally entitled to exercise the rights vesting in the copyright owner. An

39

Sudaryat, Sudjana, and Rika Ratna Permata Intellectual Property Rights (Hak Kekayaan Intelectual), (Bandung: Oase, 2010) p.46.

40

This article states that the registration of a creation is not a requirement to get protection under Indonesian Copyright system.

agreement assigning or licensing the ownership or rights in copyright to a third party must be in writing if it is to be enforceable – Section 35.

Section 32 of the Copyright Act 1968, provides protections to the creators of original "subject-matter" or “subject-matter other than works". Eight categories specify the

“subject-matter” and “works” eligible for protection. These include literary works, dramatic works, musical works, and artistic works, also including performances and works of artistic craftsmanship. Any work falling within a specified category will enjoy the protection of copyright; works outside these categories are not protected.

Protected “subject-matter” or “works” must be the identifiable product of individual or collective human intellect and effort. The respective contributions of multiple contributors to original work must be identifiable if they are to be adequately protected. Copyright does not apply to intangible concepts, thoughts or ideas; to gain the protection of copyright under Australian law, the subject-matter or subject matter other than works that is to be protected by copyright, must be given tangibility; it must be written, drawn, photographed or crystallized in a recognizable medium.

From the perspective of Australian copyright legislation, S32 has considerable relevance to wayang kulit when conceptualized against the Australian Aboriginal creative culture. As with wayang kulit, Aboriginal works are of a dramatic, musical, performance or artistic nature. Their works are generally created over extended periods of time and draw on the collaborative hierarchies of status, knowledge, skill and capacity. These works embody the spirituality and beliefs of the culture, depict significant events, features and relationships; they deal with formative cultural and historical matters. In Aboriginal community settings, communal activity and endeavor commonly involves groups of people, either consistently or periodically, contributing to a body of artistic work. Under the law, unless each of these people can be identified and their contributions quantified, copyright protection will not be afforded to the work. It is common for Aboriginal people to forfeit their copyright protection because they are not aware of the laws, do know understand the use and misuse of their work or are unable to identify the contributors to original work. And much important Aboriginal art is not reduced to a tangible form because it takes the form of drawings in the sand, structures made of leaves, sticks and other material.

An example of how significant, but fragile copyright protection can be is to be found in the creation of Aboriginal works of art by Aboriginal artist Mandy Davis. In

2005, Mandy Davis saw her painting „Emu‟ (the Work) copied onto a commercial vehicle; she had not consented to this use and had no prior knowledge of its use. The unauthorized use of the work had distorted the image, making it unreflective of the original work.

The key issue in this matter was the infringement of the artist‟s copyright in the

Work, together with the infringement of her moral rights of attribution – recognition of her human intellect, and of artistic integrity. The company distorted the Work when reproducing it on the commercial vehicle, the colours were changed and its creation was not attributed to Mandy Davis as the original creator. The designs and artworks illustrate

III. Mechanism to Settle Copyright Infringement Regarding Wayang Kulit From Indonesian and Australian Copyright Laws

Copyright provides protection for the human intellect applied by the original creator, which is ultimately embodied in a tangible form especially in the field of literature, scientific and artistic works. It is the exclusive right of the creator or the copyright holder of a work or creation that recognizes the creativity, imagination, skill, knowledge and other factors invested the creation by its creator. Historically, the concept of copyright protection originated in Western countries due to the concern for the protection of the rights of individual‟s. The concept of copyright protection and its introduction to a country such as Indonesia, where the sense of communality remains alive and tight, gives rise to a complex period of adjustment. During this period, considerable copyright infringement is evident.

New Wayang kulit characters created by dalangs fall within the scope of artistic works. According to Article 40(1)(e) of Indonesian Law No. 28 of 2014, new wayang kulit characters are part of many already protected creations. These new Wayang kulit characters must meet the criteria of being an expression of work42, have a tangible form and be original, unique and personal43. Any unauthorized use of such creations, whether in the form of copying, adapting or fixation, will be considered to be an infringement of copyright under Indonesian Law. Moreover, it is noted that under Indonesian Law No. 28 of 2014, registration of copyright is not mandatory44 as a requirement to secure protection but only merely to help as evidence45 should another party claim that work to be his creation. This reflects the intent of the protections under Indonesian copyright that automatically apply protection upon a creation being embodied in a tangible form (Article 1(1) of Indonesian Law No. 28 of 2014).

The discussion about infringement of copyright of new wayang kulit characters is intertwined with the discussion of the mechanisms available to settle any copyright infringement. This point is significant in that both Indonesian and Australian Copyright Law provide mechanisms to settle copyright infringement. It is because when legislators provide us provisions concerning the protection, these provisions need to be coupled with the mechanism to settle the dispute arise from the disobedience of such provisions to make the Copyright Law itself works appropriately.

From an Indonesian copyright law perspective, Indonesian Law No. 28 of 2014 regulates the mechanism to settle the copyright infringement of wayang kulit. As is noted above, the new wayang kulit characters of a dalang fall within the scope of Article 40(1)(e) of Indonesian Law No. 28 of 2014; unauthorized use for economic purposes will infringe the moral and economic rights of the creator or copyright holder – being regarded as an infringement of copyright. Similarly, from Article 9 paragraph (3) of Indonesian Law No. 28 of 2014, it is clear, that anyone who does not have the permission of the creator or the copyright holder is prohibited from copying and or using the creation commercially. The law possesses mechanisms to settle disputes because the object or the creation, if properly formalized, falls under the protection of the law. Clear provisions prohibit unauthorized commercial copying or use of the creation and the law recognizes the intrinsic rights individual, economic and moral rights attached to the creator.

42

Artice 1(1) of Indonesian Law No. 28 of 2014. 43

Article 1(3) of Indonesian Law No. 28 of 2014. 44

Article 64(2) of Indonesian Law No. 28 of 2014. 45

The mechanisms to settle disputes as to the infringement of a new wayang kulit character are contained in Chapter XIV of Indonesian Law No. 28 of 2014 - Settlement of Disputes. Article 95 (1) of this Law identifies several means of dispute settlement are available to the parties, including alternative dispute resolution, arbitration or court. This Article specifies the jurisdiction of Commercial Court46 in these matters; the Commercial Court ids the only Court competent to settle copyright disputes. Copyright disputes must, here the parties are in the territories of Indonesia, first proceed through a mediation or alternative dispute resolution. Court proceedings will not be permitted without a genuine attempt to resolve the dispute out of court47. The creator or copyright holder may seek compensation for economic loss or recompense as provided for under Article 96 of Indonesian Law No. 28 of 2014. Article 99 (1) of the law confirms the right of a creator, in this case, the dalang or the copyright holder of a new wayang kulit character, has the right to seek compensation in the Commercial Court for copyright infringement.

Chapter XVII of Indonesian Law No. 28 of 2014 specifies the penalties for copyright infringement found pursuant to XIV. For example, if a person has copied, published or distributed a creation (Article 9(1)(a),(b),(e)) such as new wayang kulit character without the permission of its creator, an infringement of his copyright will arise.

An example of this would be a production in some way of the “dutch man” originally created by Dalang Putu Rekayasa. The infringement a creator‟s economic right is punishable by four years imprisonment and or a maximum fine of one billion rupiah48. As this matter is a criminal offence, Article 9(1)(a),(b),(e) of Indonesian Law No. 28 of 2014 requires that a complaint must be made to by the creator or the copyright holder specifying economic loss, before an action may be taken. If no complaint is made, an infringement will not be found.

Infringements of Australian copyright laws are dealt with in Division 2 of the Copyright Act. A person infringes the copyright of the legitimate copyright owner if they act in any way or do anything that is inconsistent with the rights conferred by a copyright. Acts constituting a breach of copyright include the sale, reproduction, copying, exhibition, distribution or use of the object in any way that diminishes or prejudices the rights of the of the owner of the copyright. Division 3 of the Act permits the “fair dealing” in “subject

-matter” and “works” for the purposes of education, research, recitation, criticism and

review, news reporting, libraries and other public domains.

Part V of the Act deals with the offence of infringement of copyright and remedies. An action may be brought by a copyright holder who claims infringement of his or her copyright. The key issues a Court must take into consideration in determining the infringement of copyright include the power of the person concerned to prevent the breach, the nature of any relationship between the owner of the copyright and the person alleged to have committed the infringement and any steps taken by the person to avoid committing

the infringement. Other key concerns for the Court examines are the original creator‟s

right of attribution and right to the right of integrity of work or subject matter. For relatively minor infringements, the Magistrates Court may grant an injunction against the continued infringement of copyright and award compensation in the form of damages or accounting for profits. Serious technical matters regarding copyright infringements are dealt with by the higher courts.

Australian jurisdictions increasingly rely on the use of alternative dispute resolution mechanisms such as mediation and assisted negotiation to resolve dispute prior

46

Article 95(2) of Indonesian Law No. 28 of 2014. 47

Article 95(4) of Indonesian Law No. 28 of 2014. 48

to matters proceeding to court. The Copyright Act specifically refers to the use of alternative dispute resolution mechanism before matters advance to court.

An example of a breach of copyright and its resolution can be found in the matter of Wamod Namok. In 2005, Mr Namok, a very traditional man became aware of reproductions of his "Kangaroo" painting being offered for sale on the internet. The notice of sale said that the images were accompanied by a statement that royalties from the sale were being paid to the artist. The artist did not receive any royalties and the reproductions were unauthorized. Lawyers acting on behalf of Mr Namok issued notices to vendor demanding the immediate cessation of all internet sales. The vendor removed the reproductions from sale, however claimed to have been given a copyright licence by the gallery which had direct dealings with the artist. On inspection, a copy of the 'license' was found to be a receipt for the sale of the work, signed by the artist and his daughter, neither of whom were fluent English speakers.

Picture 2. Wamod Namok “Kangaroo”

Because of Mr Namok‟s advanced age, health and place of residence, legal proceeding to deal with the gallery were suspended in favour of negotiations to settle the dispute.

Copyright laws in both jurisdictions provide effective means of settling infringement of copyright and upholding the rights of copyright owners. The laws reflect more efficient use of court resources through the use of alternative dispute resolution prior to matters advancing to a hearing. Similarly, the mechanism used for determining disputes and providing remedies are based on comparable principles and approaches.

IV. Conclusion and Suggested Action

protection of Article 40(1)(e) of Indonesian Law No. 28 of 2014. There, copyright belongs to the creator because copyright is an exclusive right of the creator. Therefore, everyone is prohibited from copying any creation of another creator without his express permission if the use involves economic purposes. The creator holds the moral and economic rights of that creation. The lack of knowledge among Indonesian dalang of the copyright system may lead to many copyright infringement. Moreover, Indonesia has a communally based society which is slowly aligning with the concept of individual rights and protection as embodied in copyright law. This law also provides mechanisms to settle infringements, primarily through alternative dispute resolution, arbitration or Commercial Court. This law also provides a mechanisms for criminal offences regarding copyright infringement where an offence based on complaint which requires the matter to be prosecuted.

Australian copyright laws reflect the intent and purpose of laws applying in Indonesia. Under Australia, copyright is granted to the original creator of a work or object at the time it is created and given tangible form. Without tangible form, a copyright will not apply. Rights granted under copyright laws are exclusive rights for the copyright owner. The law defines categories of work and subjects that fall within the requirements of the Act and sets out a regime of protections that give rise to the basis of actions for breach of copyright. The infringement of copyright is dealt with in the lower and higher court, depending on issues of materiality and complexity. Alternative dispute resolution mechanism are mandatorily applied in all cases.

The lack of general awareness among the more traditional communities of Indonesia and Australia indicates a need for greater efforts to be made to promote the availability of information regarding copyright and its application in the pursuit of their cultural and community lives. This material must be appropriate and relevant to a broad community, and flexible enough for them to make practical use of it in their work and lives.

Acknowledgements

Dean Faculty of Law Udayana Universita,

Head, Master in Law Programme Udayana Univeritas, Head, Master in Notary Udayana Universitas

Head, Doctorate in Law Udayana Universitas

Danial Kelly, Associate Head school of Law, Charles Darwin University

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Laws and Regulation

Indonesian Law No. 28 of 2014 concerning Copyright Copyright Act 1968 (Cth)

Dictionary