More Can Be Done to Perfect the System?
D. Conclusion 1. Conclusion
2. Embracing
From the foregoing, it appears that the legislation that is not representative protecting businesses across the State and has not met the elements of legal certainty. Thus, the legal protection that was given to businesses is not maximized. Therefore, the active role of the government is expected to create legal representative under the law of economic development. So, in order to provide certain protection, preventive and repressive laws are substantially and the government has to take an active role.
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tanggal 6 Januari 2014.
LEGAL PROTECTION TOWARDS INTERSTATE BUSINESSMEN AND TRADITIONAL AND TRADITIONAL KNOWLEDGE
By: Sukarmi
Lecturer at the Faculty of Law UNISSULA
Abstract
Indonesia has agreed GATT (General Agreement on Tariff and Trade) and also with GATT/WTO (World Trade Organization) framework as juridical and psychological consequences that must ratify through Law No.7 Year of 1994. Through this ratification, it is expected that regulation of Intellectual Property Rights could be implemented that are worth for Indonesian people generally and cultural community especially towards Traditional Knowledge,although hacked by other country as there is no comprehensive legal protection yet. As of becoming a polemic and problem placed inclined state in a hard and downtrodden position.41
Key Word : Intellectual Property Rights, Traditional Knowledge, Legal Protection, Businessmen.
A. Background
As a developing country, Indonesia has lived potential resources and traditional knowledge which become important issue related to Intellectual Property Rights both in national level and international. With more than 200 millions of population and raising diversity, Indonesia has many aspects of Intellectual Property Rights.
Raising diversity is an impact of intellectual creation in scope of Intellectual Property Rights. Even in Millennium economy, precisely would be more depending on on intellectual capital, which cover science, invention work, creativity creation, accumulation of education-training-skill internalized in science, engineering.
Intellectual capital will be more important and has strategic function, compared with physical capital, which becomes main sources of consumption goods for people wealth before. Intellectual capital moves and circulates with a high flow rate of world capital turnover particularly in advanced countries. By the rapid growth of technology progress, market is transformed in global scale in “transnational” form, so it requires legal device to increase and protect industrial investment interest, culture and market.
In the mid of 1980, it is stated to join GATT / WTO agree about IPR (Intellectual Property Right) rules. Indonesia and other developed countries in 2002 are required
41 OK.Saidin, 2010, Aspek Hukum Hak Kekayaan Intelektual (Intellectual Property Rights), Jakarta, Raja Grafindo Persada, page 6.
to prepare their rule devices, such as IPR regulation and its implementation.42 This condition affects toward increasing of Indonesia national IPR protection such as culture and arts which are in scope of traditional culture expression (TCE). TCE has promised potency linked with tourism industry and creative industrial economy.
Various forms of commercialization towards TCE happen even in global level without permission of cultural community as the owner. Even Indonesia which has rich art reflect cultural treasure as Reog Ponorogo, Rasa Sayange, kecak dance, etc which several times ago became dispute with Malaysia. Existence of certain culture or folklore could show certain characteristic for some region, even state.
IPR today becomes very important in supporting, empowering and stimulating world economical rapid so that affected to human wealth at last. Indonesia known has a high living resources, even precisely the highest in the world, on the other side Indonesia also has diverse culture and traditional works so there are many assets and local intellectual property which have been abroad registered belonging to foreigner unconsciously. Lacking of awareness and understanding the importance of intellectual work asset result big loss for Indonesia.
Traditional knowledge interpreted as knowledge owned by some community hereditarily, covers their knowledge about living resources management such as food, medicine, song, tale, legend, also arts and other cultures of people.43 The distinction among traditional knowledge or local culture and intellectual work for traditional/local culture with IPR placed in ownership and its preservation. IPR is a material rights sourced from ability of human intellectuality in science, art, literature, design and technology.44
Recently many disputes happen related with folklore protection (strict sense of traditional knowledge which cover art, literature and knowledge). It indicates concept used for folklore legal protection still could not be applied maximally yet or there is no regulation could cover enough that trouble, particularly rule which regulate folklore problem comprehensively.45If so, how can we protect businessmen related with traditional knowledge product carried between countries?
Usage of IPR regime started from principals raised inside GATT/WTO one of them including trade liberalization.46 IPR legal politics which are in certain term influenced by various international convention, evidently affect drastically towards IPR legal
42 Thesis, Tinjauan yuridis Tentang Penerapa Biaya Paten Sebagai Ayarat Perlindungan Paten dan Impikasinya Terhadap Pendaftaran Paten di Indonesia, published July 5th, 2008, page. 1.
43 http://www.nativescience.org/html/tradisional_knowledge.html.”WhatIs traditional Knowledge?” accesed in April 3rd2009. In several writing, this traditional knowledge is more details distinguished in several categories as including in IPR regime concept, for example in agriculture, science or knowledge and folklore. Taken by Arif Lutviansari, 2010, Hak Cipta dan Perlindungan Folkklor di Indonesia, Togyakarta, Graha Ilmu, hlm.2.
44 Ibid.Ok.Saidin,2013,Aspek Hukum Hak Kekayaan Intelektual (Intelectual Property Rights), Raja Grafindo Persada, Jakarta, page 9.
45 Ibid. Arif Lutviansari, 2010, Hak Cipta dan Perlindungan Folkklor di Indonesia, Togyakarta, Graha Ilmu, page3.
46 OK. Saidin, 2006, Aspek Hukum Hak Kekayaan Intelektual(Intellectual Property Right), Jakarta, PT Raja Grafindo Persada,page. 26.
politics after Indonesia ratified WTO/TRIP’s Agreement Forming Convention which that one of its attachment through Law No.7 Year of 1994. Before Indonesia ratified WTO/TRIP’sAgreementconvention, IPR regulation depended on national legal politics and national interest of each country, but after WTO/TRIP’s Agreement, IPR regulation changed into internationally and fellow WTO countries could observe each other even could impose trade sanction to the state considered adverse national IPR interest. This becomes IPR era which increasingly has liberal characteristic, economic, and tends to exploitative and manipulated. Precisely Indonesia is one of states that responsive enough in revise IPR regulation.47
Problem Formula :
What effort must be done to give a legal protection for interstate businessmen towards traditional knowledge in IPR scope? As it could gives justice and welfare advantage to people as traditional knowledge owner, Traditional Knowledge and folklore that exists in implementation is not comprehensive yet?
Discussion :
Traditional knowledgies is a knowledge which its position or its usage is a part of public cultural tradition or local culture. Traditional knowledge concept in WIPO is
“Traditional Knowledge is not limited to any specific field of technology or the arts. The entire field of human endeavor is open to inquiry by traditional methods and the full breaadth of human expression is available for its transmission. Traditional knowledge systems in the fields of medicine and healing, biodiversity conversation, the environment and foods and agriculture are well known”. The definition given by WIPO is almost the same as stated by CBD (The Convention Biological Diversity) which is
“Knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conversation and sustainable use of biological diversity. This definition is a description that traditional knowledge has a wide scope, not only limited to technology or arts field. Local culture has characteristics : a) in social institution owned by some tribe and coordinates social action with community member ; b) has strong social behavior orientedinside, which this condition could shown by orientation to meet the needs of that social institution member ; c) social relationship between member is personally and based on high loyalty towards chairman and social prestige possessed ; d) institution forms contained in mutual aid in Java (gotongroyong), Banjar system or custom bond in Bali. Those are mutual help relationship between villager. Relationship pattern: could be realized in many life aspects such as social work, clean up village, harvest together. Other examples as human life cycle ceremonies: (baby first ground moment) tedak siten, (celebrate and pray for seventh
47Chandra Irawan, 2011, Politik Hukum Hak Kekayaan Intelektual Indonesia (Kritik Terhadap WTO/TRIP’s Agreement dan Upaya Membangun Hukum Kekayaan Intelektual Demi Kepentingan Nasional), Bandung, Mandar Maju, page 129-130.
month of pregnancy) tujuh bulanan, (bath the bride and groom) acara siraman, (marriage proposal) lamaran, (ask for parents blessing in wedding) sungkeman, mortality and harvest packed in form of celebration/salvation. Even in Jepara sub region (Central Java) known with tradition such as: Bratan, Buka Luwur, Jembul Tulakan, Jondhang Kawah, Lomban, Perang Obor etc.48
Traditional49: some behavior and mindset also perform sticking to the norm and existing habit continuously. This traditional knowledge covers human recovery effort by traditional method and information spreading, which are dynamic knowledge that are made and created as individual and community response in answering every social challenge and nature challenge. This knowledge is always related with environment problem and health which the essence is their tradition that is different from indigenous knowledge which push its authenticity50.
Whereas local culture is defined as native culture from some community group which according to J.W Ajawaila. Local culture is characteristic culture of a local community group, as Irwan Abdullah gives boundary which is almost always attached to physically boundary and obvious geographical. Therefore geographic boundary is used as base for formulates local culture definition.
This traditional knowledge is unique so that should be appreciated in form of legal protection likely because of several reasons:
a. Indonesia as developing countries in the world, as transformation community from traditional community to industrial community.
b. Globalization era, development and western culture become objective paradigm used in economical construction in developing country as Indonesia.
c. Economic legal system of state concerned impact to community life directly and indirectly.
d. Community still not able to get benefit from economic establishment, mainly villager or people living in urban area, face impact of IPR legal practice.
e. Traditional art works and traditional techniques which has been living for a long time in traditional community considered as an asset that has economic value.
f. Several IPR famous cases where traditional knowledge is as an object or legal dispute object, for example :Shisedo patent cancellation as Indonesia traditional ingredient, BaswatiRice Patent case between India and Multinational company (MNC) US, and tempe patent in US51.
48 Competitive Grant Research Report, by Sukarmi2013 financed by Dikti.
49 Tim Penyusun Kamus Pusat Pembinaan dan Pengembangan Bahasa Departemen Pendidikan dan Kebudayaan Edisi Kedua, l995, Kamus Besar Bahasa Indonesia, Jakarta, Balai Pustaka, page 1069.
50 Sudaryat, Sudjana, dan Rika Ratna Permata, 2010, Hak Kekayaan Intelektual, Bandung, Oase Writers Management, page. 188-189.
51 Adrian Sutedi, 2009, Hak Atas Kekayaan Intelektual, Jakarta, Sinar Grafika, page. 172
Writer observation is still not able to get benefit economically yet from utilization of traditional knowledge resource including folklore culture tradition. As example from 45 important medicine in US derived from plants, and 14 types of it come from Indonesia, such as tapakdara which has function as cancer drug. In Japan, noted that patent given for drugs ingredients sourced from biodiversity and Indonesia traditional knowledge.52Local community do not aware that their traditional knowledge in drug field has economic value. They only understand that everyone could use traditional drug knowledge to recover people. On the other side, people do not understand IPR concept also, even the implementation of it.53 Nother case, Turmeric patent, where University of Missisippi Medical Centrein US got patent from US patent office (USPTO), number 5401504 for Curcuma Longa for Indian, Curcuma Longa used for several usages for examples cosmetic, drug and food flavoring. India government through CIR (The Council of Scientific and Industrial Reseach) objected and asked for cancellation of that patent. Another claim for Malaysia, in some advertisement of Discovery Channel in Enigmatic Malaysia, pendet dance, puppet (wayang) and Reog Ponorogo recognize ad Malaysia traditional treasure whereas that three of cultures are owned by Indonesia54. In Las Vegas USA, there is a hotel with certain geographic characteristic from Middle East especially Egypt, full with merchandise indicate certain geographic. Also in Seattle USA, there is store sell certain characteristic product such as boomerang, Indian hats and products that have art characteristic from certain tribes from various part of the world.55
The cases above are precisely given legal protection such sui generis law or regulation towards traditional knowledge product including folklore culture and its businessmen, indeed legal protection has goal for giving recognition, trust contribution, advice to local community and international, giving legal certainty and rewarding creator and culture community, traditional knowledge and local culture. Basic considerations of legal protection are:56 (1) Economic value; (2) Nation character development in traditional knowledge and folklore; (3) IPR regime enforcement inevitable,57as traditional knowledge with its traditional culture shows certain identity from some region/country.
Protection for traditional knowledge in folklore form, including in article 10 Law No.19 Year of 2002 about copyright, however it is still hard to be realized as it needs regulation orderly implementing.58
52 Agus Sardjono, 2004, Pengetahuan Tradisional, Universitas Indonesia, Jakarta,page. 1.
53 Ibid, page 104.
54 Sudaryat, Sudjana, dan Rika Ratna Permata, 2010, Hak Kekayaan Intelektual, Oase Writers Management, Bandung, page193.
55 Agus Sardjono, Membumikan HKI di Indonesia, 2009, CV Nuansa Aulia, Bandung,page. 173.
56 Research byZulfa Aulia, IPR protection of Traditional Knowledge load folklore is important based on reasons : (1) economic value (2) Nation character development intraditional knowledgeandfolklor; (3) IPR regime implementation that can not be avoided.56Besides, traditional knowledge with its traditional culture shows certain identity from some region/some country such as Indonesiaentu seperti di Indonesia.
57 Zulfa Aulia, 2006, Perlindungan Hukum atas Pengetahuan Tradisional, Scientific Paper as participant in competition of student’s paper in Faculty of Law Universitas Sebelas Maret tahun 2006 written by Arif Lutviansari, 2010, Hak Cipta dan Perlindungan Folkklor di Indonesia, Yogyakarta, Graha Ilmu, page. 4.
58 Agus Sardjono, Op.Cit, page 16-17
To anticipate piracy, government should documenting traditional knowledge aside protection regime including in Section 17 Article 13 Constitution:59“The state shall recognize, respect and protect the rights of the indigenous cultural communities to preserve and develop their cultures, traditions and institutions. It shall consider these rights in the formulation of national plans and policies”. Then the clause described inIndigenous People Rights Act 1997, :
“Indigenous cultural communities/indigenous peoples have the right to practice and revitalize their own cultural traditions and customs. The State shall preserve, protect and develop the pass, present and future manifestation of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and prior in formed consent or in violation of their laws, traditions and customs “
That clauses is declaratively and load normative regulation, arrange people rights that taken without permission, or taking by against law, tradition and culture community habit. Theoretically, traditional knowledge could be protected, through IPR law and unbinding non-law code of conduct adopted by international organization, government and non-government organization, professional community and private sector. Possible through discovery compilation, registration and integrated traditional knowledge data base so that become more effective as could complete it.60
Ironically, there were rejection from advanced countries such as France, England, US and Japan to sign The Draft of United Nations Declaration on the Rights of Indigenous Peoples. The refusal is about community collective rights to traditional knowledge including drugs.61With this perspective, state awareness tested to treat, maintain and enliven also develop existing culture in community since pas, implemented through formal and non-formal education in policies form also financial support, facility and infrastructure, also in form of legal guarantee and politic so that culture could grow up healthy and dynamic.
Conclusion:
Social value diversity of community culture including local wisdom is verbally in general, and not in good documentation. Whereas social norms, including suggestion, prohibition, or culture requirements defined in certain activity that need to be in depth consultation and more developed in form knowledge management towards various local wisdom/traditional knowledge as guidance in planning process, development, establishment for people wealth comprehensive by regulation as guidance for legal
59 Sudaryat, Sudjana, Rika Ratna Permata, Op.Cit, page. 16
60 Ibid. Sudaryat dkk , page.192.
61 Agus Sardjono, Op.Cit, Jakarta, page.72.
certainty, towards traditional knowledge creation product and globally businessmen. Its utilization is done with benefit sharing or fit with agreement/testament.
Suggestion:
The writer gives suggestion to government about the importance of knowledge protection as award to culture noble values through formal legal protection by documenting Indonesia traditional knowledge that registered in all over the world so that in the next day could be cancelled if there is a violation.