A. Background
Indonesian territory that stretches from Sabang to Merauke is the largest archipelago which consists of 13 466[1]islands and 34 provinces[2]has a lot of cultural diversity .Diversity cultures include the so- called traditional knowledge (traditional knowledge) which is defined as the knowledge possessed by a community over a hereditary, including their knowledge of the management of biological wealth, such as for food and medicine, songs, stories, legends, as well as other arts and cultural communities.
There is one thing that distinguishes between traditional knowledge and other intellectual works, namely that traditional knowledge is a form of intellectual work that grows and develops from and in communal society. The WorldIntellectual Property Organization( WIPO ) provides boundaries / categories of traditional knowledge, namely:[3]
T he catagories of traditional knowledge include ... expressions of folklore in the form of music, dance, song, handcraft, design, stories and artwork ...
In addition, it also states:
Traditional knowledge (TK) is a living body of knowledge passed on from generation to generation within a community. It often forms part of a people's cultural and spiritual identity. WIPO's program on TK also addresses genetic resources (GRs) and traditional cultural expressions (TCEs).
Berdasarkan WIPO above definition , traditional knowledgeis not just talking about genetic resources but ju ga Traditional Cultural Expressions (TCEs).Understanding the knowledge of traditional mentioned WIPO above gives not much different from the notionof culture which describes as a way of life that continues to grow and be recognized by a group of people who then passed on from generation to generation.[4] Theculture mentioned above is nothing but what is meant in TCEs as stipulated in Copyright Number 28 of 2014.
TCEs category includes one or a combination of forms of expression such as: verbal textual, both oral and written, in the form of prose and poetry, in
A REQUIREMENT FOR THE ASEAN ECONOMIC COMMUNITY
Annalisa Y
Lecturer at the Faculty of Law University Sriwijaya email: [email protected] Received : 15 February 2018 accepted : 22 June 2018
Geographically, Indonesia is an archipelago that has a lot of cultural diversity . Diversity cultures include traditional knowledge (traditional knowledge) , whichis owned by k elompok particular community and handed down Intersection run from generation to generation.Q : What Knowledge traditionally also summarizes the " expression of traditional cultures " (traditional cultural expressions) that arrangementsexist in the CopyrightAct Number 28 of 2014, such as: verbal textual, both oral and written, in the form of prose and poetry, (such as literary works or informative narratives); music (including, among others, vocals, instrumental, or a combination thereof ); motion ( inter alia, dance ); theater ( other means, wayang performances and folk plays ) ; fine arts and traditional ceremonies. In this context, what is examined is how the regulation of Traditional Cultural Expressions ( TCEs ) in the Copyright Act faces the Asean Economic Community. The results of the study showed that the regulation of Traditional Cultural Expression inCopyright Act Number 28 of 2014. did not provide legal certainty and certainty, because it was only limited to the TCEs inventory. S ehingga need a strong legal foundation in achieving legal certainty in the form of government regulation as mandated in Article 38 (4) Copyright Act Number 28 of 2014. For the future is not only limited to the inventory of renewable energy but also the documentation in the form ofa databaseand registration as proof in case of abuse in utilization (misappropriation) by foreigners.
Key Word: Traditonal Cultural Expression, Copyright, Diversity Cultures, Asdean Economic Community
various themes and content of messages, which can be in the form of literary works or informative narratives; music, including among others, vocals, i nstrumental, or any combination thereof; motion , including among other things, dance; character, including but not limited to, wayang performances and folk plays; fine art, both in two-dimensional and three-dimensional forms made from various materials such as leather, wood, bamboo, metal, stone, ceramics, paper , textiles, etc. or their combination; and traditional ceremonies .[5]
TCEs is a part of Intellectual Property Rightsthat can be studied through various perspectives, including economic, political (global economic politics) and legal perspectives .[6]in this paper, TCE will be examined in terms of a legal perspective based on the Copyright Act Number 28 of 2024. Cultural uniqueness[7]such as Traditional Cultural Expressions (TCEs) as copyrights are owned by the Indonesian people were able to buy souvenirs offered are the main attraction for other countries to learn. Even the neighboring country wants to claim to be the culture of the nation.[8]
The expression of traditional culture is Indonesia's invaluable wealth as a national identity which is an invaluable national asset. TECs is a creation in the field of art that contains elements of traditional heritage characteristics as a nation's culture which is a shared resource developed and maintained or preserved by certain traditional communities or societies or certain social organizations in a continuous period of time.[9]For this reason, it needs to be protected and prevented so that Indonesian people's products are not recognized without permission by other countries.
The rights of copyright is the intellectual property in the fields of science, art and literature that have a strategic role in supporting the development of the nation and promote the general welfare, as mandated by the Constitution of Republic of Indonesia of 1945.[10]protection by the state against
the TCEs as communal property has
beenin affirmed in the Preamble of the Constitution of 1945, which states that the purpose of the establishment of the Indonesian state, which is to protect the whole country of Indonesia and promote the general welfare. Referring to the goals of the country, the duty of the state is to protect and strive for public welfare. In this case, among others, by providing protection to traditional knowledge and culture, belonging to the Indonesian people since time immemorial. Moreover, the use without the knowledge andbenefit sharingfor TCEs owners . Regarding exploitation by foreign parties, the community is actually open and not
possessive. This is due to the orientation of the local community, who have not yet fully thought about
material happiness, but
rather spiritual happiness . [11]For this reason, it is necessary to have a legal principle of harmonizing materialistic-individualistic and spiritual- collectivism values in IPR[12]specifically TCEs which is regulated in the Copyright field. in connection with efforts to harmonize with materialistic-individualistic and spiritualistic- collectivistic values, they must base themselves on the principles of law as explained by Sunaryati Hartono,[13]namely the principle of justice (the principle of natural justice);the economic principle (the economic argument), the cultural principle (the culture argument);and social principle (the social argument).
The emergence of injustice felt by developing countries, occurs because the knowledge and expression of their traditional culture does not get protection, as intellectual property in developed countries. Meanwhile, developed countries try in such a way as to protect their intellectual property from misuse, by pressuring countries in the third world, to protect their intellectual property rights.[14]
The reluctance of developed countries to
acknowledge the knowledge
and cultural expression of developing countries , is because they do not want to lose access to capture the traditional cultural knowledge and expression of local people , which has proven to be very beneficial for them, both economically or in terms of knowledge and technology. Similar thinking above, described by Agus Sardjono by saying, that developed countries have been acting unfairly in the use of traditional knowledge of local communities in third countries . for example in the case of taking the intellectual property of the Indonesian people, in the field of medicine, who later claimed himself, as an inventor of drug technology that was actually taken from the knowledge that had been practiced by traditional communities in Java.[15]
TCEs protection is closely related to technology transfer, economic development and national dignity. However, one of our weaknesses in developing a protection system for TCE is that all EBTs have not been inventoried due to the very limited data, documentation and information about EBT. However, developing countries, such as Indonesia which has these assets are not optimal yet can even be said to not participate in enjoying the economic benefits from the use of TCEs.Based on the background above, related to TCEs protection in Indonesia, the main problem that needs to be examined in this context is how the EBT protection
arrangements in the UUHC 2014 deal with the Asean Economic Community.
B. Regulation of Traditional Cultural Expressions (TCEs)
In Act Number 19 of 2002 on Copyright, TCE included in traditional knowledge(traditional knowledge)is defined as the knowledge that is owned or controlled and used by a community, society or ethnic group certain to be down from generation to generation and continue to evolve according to the changing environment .[16]Traditional knowledge includes the expression of folklore (which includes, among others, stories, stories, handicraft items, etc.) that have existed for hundreds or even thousands of years ago. Many benefits are obtained by utilizing traditional wealth owned by the nation Indonesia, among others, is an economic advantage .[17]
In order for an expression to
meet EBT requirements , the expression must indicate the existence of individual or collective intellectual activities that are characteristic of the identity and heritage of a community, and have been maintained, used or developed by the community, or by individuals who have the right or responsibility to do so in accordance with the law and customary practices / customs in the community[18]
Traditional Cultural Expression (TCEs) is a potential asset for the country's prosperity because it has a high economic value, but its ownership is widely recognized (claimed) by foreign parties withoutbenefit sharing,so there is a conflict of interest between developed and developing countries such as Indonesia. Our weakness in developing a protection system is that there is no appropriate and adequate protection system and limited data, documentation and information about TECs.
Indonesia's struggle as adeveloping country for legal protection continues to be formulated to formulate an appropriate protection system for TECs. There are several theories that underlie the need for a form of legal protection for IPR, as stated by Robert M.
Sherwood,[19]namely:
1. Reward Theory
This theory explains that every Creator is entitled to an award for his work. According to Rita Sivilia, "The Copyright System can be justified in terms of distributive justice. Consideration of justice is a strong reason to support the Copyright system. Justice is meant is that the inventor awarded fair(reward)for the Creator of service to the community ".[20]In other words, it is
appropriate that a Creator was
awarded(reward)on creative efforts in producing a work in science, art and literature.
2. Recovery Theory
This theory explains that the Creator must be given the opportunity to regain what the Creator has spent such as time, cost, and energy in producing his Creation. Because the Creator requires a replacement for the effort he has done in terms of producing a creation that indirectly provides benefits for people's lives.
3. Incentive Theory
In line withreward theory, this theory explains that incentives need to be given to inventors because of their creative efforts in producing Creation to be one of the factors that influence the pace of development in the fields of science, art, and literature. Using the words of Jhon Struat Mill, quoted by Rita Silvia, "the freedom possessed by an inventor is invaluable capital for the progress of the nation and society".
4. Risk Theory
According to this theory the process of creating a creation always carries risk.
5. E conomic Growth Stimulus Theory
This theory explains the creation produced by the creator can provide a stimulus for the economic development of a country
In an effort to protect TCE internationally, in 2000 theIntergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore(ICGRTKF) was formed by WIPO , to discuss the possibility of a binding agreement. Then at the National level the Government has regulated TCEs through Copyright Number 28 of 2014 (hereinafter referred to as Copyright Act Number 28 of 2014). However, the Copyright Act Number 28 of 2014 does not mention the definition of Traditional Cultural Expressions , but there is one specific article governing Traditional Cultural Expressions , namely Article 38 which states:
(1) Copyright of traditional cultural expressions[21]held by the State.
(2) The State is obliged to inventory, preserve and maintain the expression of traditional culture as referred to in paragraph (1).
(3) The use of traditional cultural expressions as referred to in paragraph (1) must pay attention to the values that live in the developing community.
(4) Further provisions regarding Copyrights held by the State for traditional cultural expressions as referred to in paragraph (1) shall be regulated by Government Regulation.
Furthermore, in the elucidation of Article 38 (1) of the Copyright Act Number 28 of 2014, what is meant by traditional cultural expression includes one or a combination of the following forms of expression:
a. verbal textual, both oral and written, in the form of prose and poetry, in various themes and content of messages, which can be in the form of literary works or informative narratives;
b. music, including but not limited to, vocal, instrumental, or a combination thereof;
c. motion, including among other things, dance;
d. theater, including among others, wayang performances and folk plays;
e. fine arts, both in two-dimensional and three- dimensional forms made from various materials such as leather, wood, bam bu, metal, stone, ceramics , paper, textiles, etc. or their combination; and
f. traditional ceremonies.
Khusus of copyright on traditional cultural expressions held by the State, in which the state is obliged to inventory, preserve, and maintain traditional cultural expressions. The use of traditional cultural expressions must pay attention to the values that live in the developing society. Provision regrading the copyright on traditional cultural expressions[22]which is held by the state, is intended to provide protection for copyright objects that are under threat of extinction, especially the transfer that can be carried out unlawfully to foreign parties by those who are not responsible.[23]Foreign nationals may only reproduce or announce the work after obtaining permission from the relevant government agency. for creations in the form of folk cultural products that belong together, such as stories, stories, fables, legends, chronicles, songs, handicrafts, choreography, dances, calligraphy and other works of art, are fostered and protected by the state. the form of protection is especially in terms of representing the interests of the creator of foreign parties who violate rights or also in the case of granting licenses that are commercial or non-commercial.[24]
Risks that may arise from misuse in use (misapproppriation) that cause economic and moral losses for Traditional Cultural Expressions owners, can be avoided if there is a strong legal foundation and function to protect the IPR. But in fact, the difficulty in addressing this risk can also arise from weaknesses in law enforcement itself (law enforcement)although the law was sufficient to provide protection. in the author's view, the Traditional Cultural Expressions regulation in Copyright Act Number 28 of 2014 has not provided legal certainty and certainty, because it is only limited to the TCEs inventory and has not yet reached good
documentation in the form of adatabase. So it needs a strong legal basis in achieving legal certainty in the form of Government Regulations as mandated in Article 38 (4) Copyright Act Number 28 of 2014.
C. Traditional Cultural Expressions (TCEs):
Opportunities and Obstacles in Facing the ASEAN Economic Community (AEC)
In view of the industry in Indonesia, the MEA became a double-edged knife. The existence of MEA on the one hand can make it easier for Indon es to be marketed overseas. Shile it on the other can also threaten the existence of native Indonesian products. Especially products that have not been patented or inventoried, (documented and registered ) as intellectual property rights (H KI).
The impact of the creation of the AEC is the free market in the areas of capital, goods and services, and labor. The aim of the establishment of the ASEAN Economic Community (AEC) is to improve economic stability in the ASEAN region, and is expected to be able to overcome economic problems between ASEAN countries. The third largest economic power
after Japan and China are ASEAN
countries[25](Indonesia, Malaysia, Philippines , Singapore, Thailand , Brunei Darussalam, Vietnam, Laos, Myanmar and Cambodia). The purpose of
establishing AEC can be
to improve economic stability in the ASEAN region, and is expected to be able to overcome economic problems between ASEAN countries.
As for the impact of the AEC consequences, namely the free flow of goods for ASEAN countries, the free flow of services, the free flow of investment, the flow of skilled labor, and the free flow of capital. In connection with that the Indonesian government needs to prepare strategic steps in the labor sector, the infrastructure sector, and the industrial sector[26]including the copyright industry related toTraditional Cultural Expressions
The main objective of the AEC is to significantly remove barriers to economic activity across the region, which is implemented through 4 main pillars, namely :[27]
1. ASEAN as a single market and international production base (single market and production base) with a free flow of goods, services, investments, educated labor and freer capital flows ;
2. ASEAN as a region with higheconomic competitiveness(competitive economic region), with elements of competition regulations, consumer protection, intellectual property rights, infrastructure development, taxation, and e- commerce;
3. ASEAN as a region withequitable economic developmentwith elements of small and medium business development, and ASEAN integration initiatives for CMLV countries (Cambodia, Myanmar, Laos, and Vietnam); and
4. ASEAN as a region that is fully integrated with the global economy(integration into the global economy) with a coherent element of approach in economic relations outside the region, and increasing participation in global production networks.
For Indonesia, where AEC into the early rounds to develop the quality and competitiveness of high economic (competitive economic region), associated with the regulation of expression of traditional culture as intellectual property rights need system awakening of intellectual property as a strategic objective promote growth ekonomi and competitiveness goose.
One form of outputimplementation of Intellectual Property Rights in district is an inventory of communal intellectual property such as traditional cultural expressions. Fpr that is important to do an inventory and documentation by reason of the high potential for renewable energy, high economic value, national character contained in the Traditional Cultural Expressions and enforcement of IPR regimes.[28]The high potential of Traditional Cultural Expressions ownership in Indonesia is inseparable from the geographical and sociological factors of the Indonesian nation , where Traditional Cultural Expressions shows the characteristics and uniqueness of a society or the identity of a nation. with a variety of cultures, a nation is better known internationally. Besides that,Traditional Cultural Expressions also has potential economic value, so it needs to be managed well although economic value is not the main motivation in the creation of Traditional Cultural Expressions to its sustainability, but there are various abuses in its use by certain parties that are inseparable from economic interests, (the appearance of traditional arts to attract tourist visits ). The high potential economic value ofTraditional Cultural Expressions is adapted to various forms, (for example; books, tapes, films, performances, etc.). Therefore, protection from Traditional Cultural Expressions needs to be linked to IPR as a legal regime that protects creativity to prevent the possibility of developing misuse in its use (misappropriation).
Protection related toTraditional Cultural Expressions has actually been indirectly regulated in theTrade-Related Aspects of Intellectual Property Rights(TRIP's Agreement) which is a national IPR regulation standard for each country. TRIP's
Agreement is defined in the fields of Industry, Science, literature and art so logically it is also part of traditional knowledge. The process of traditional knowledge is the result of innovation and creation from humans both in terms of knowledge, art and literature. There is a difference between works on TCEs and works on the IPR regime . If works on IPR calls for the requirement kebaharuan, then the TCEs such a requirement is not met. Similarly, the necessity of a claim individually on IPR which can not be
fulfilled on EBT
works are communal. Therefore, efforts to protect TCEs frommisuse in its usecannot depend on legal provisions that have not yet been promulgated. For it takes the active role of citizens of the state (public) and the local governments to keep doing inventory, documentation and registration and announcement of massive tar-owned areas called on the Directorate General of Intellectual Property. The goal is that every product and culture born as Traditional Cultural Expressions receives adequate protection.
D. Urgency Inventarisasi and Documentation of Traditional Cultural Expressions
In connection with legal protection for the traditional cultural expression of Indonesian people, legal reform is needed to be more responsive to the needs of the people who have traditional cultural expression . To achieve this goal, real support from the central and regional governments, universities, and social institutions is needed, in order to inventory the knowledge and expression of traditional culture as mandated in Article 38 of the Copyright Act Number 28 of 2014.
Good law should provide more than legal procedures. according to Nonet and Selzenik, the law must be competent and also fair; he should be able to recognize the public's desires and be committed to achieving substantive justice [29]Furthermore, according to Nonet and Selzenik substantive justice is one component in discussing responsive law.[30].
Hopefully, the law provides more protection than just legal procedures. For this reason, competencies need to be given in accordance with the wishes of the people and have a commitment to the achievement of substantive justice, for the people who have traditional cultural expression of economic value. The ultimate objective of responsive law in relation to the protection of traditional cultural expression is to direct the law towards the realization of the values and juridical will of the Indonesian people, in accordance with the ideals of the law(rechtsidee)Pancasila and the Constitution of Republic of Indonesia of 1945. The ideal of law is an
a priori that is both normative and constitutive, which is a transcendental precondition that underlies every positive and dignified law. Without the ideals of law, no law has a normative character. Apriori in this connection is understood as an ontological belief about the concept of justice adopted by a society.[31]
In the protection of traditional cultural expression it takes "the principle of equality"(equalitarianism)not "the principle of all people being equal" (egalitarianism). In other words, the legal protection of traditional cultural expressions cannot be realized on the basis of the principle that all people are the same, and therefore must be treated equally in order to create a society without difference.[32]The legal protection of its knowledge and traditional cultural expressions, wanted was constructed based on the principle of equality(equalitarianism)for the sake of true fellowship is complementary. In the level of application of the principle ofequalitarianismfor the formation of law, the principle of equality, encourages the birth of protection by not disturbing the rights of others, not harming others. Here comes respect for property rights and respect for justice.
Traditional Cultural Expressions are part of cultural heritage that can provide motivation to increase the intellectual creativity of the community. Through intellectual creativity can improve the economy of society. For that we need protection from arbitrariness foreign parties intending n utilize Indonesian culture. Traditional Cultural Expressions is owned collectively by community members and some documents are not available that can be used as evidence of ownership, then when it is claimed individually by certain parties it turns out that IPR protection can be given.[33]
State as a party designated by law to carry out the mandate through the Ministry of Culture and Tourism, Ministry of Law and Human Rights and relevant institutions need melakukan preservation including m elakukan excavations, conservation, development and protection of Traditional Cultural Expressions .
Efforts that can be made to protectTraditional Cultural Expressions as a form of nationalism can be pursued through inventorying. Inventory or documentation of EBT is a data collection activity on a traditional culture in an area. Based on these data the traditional culture of a society can be inventoried in various forms, including; publishing written knowledge inventories (in the form of books), or can also take the form of inventory and documentation using adatabaseon a computer.[34]
Considering that most of the people who develop activities based on traditional culture are
people who are still far from writing culture, inventory can not only rely on the role of local communities. Moreover , local communities themselves are not too concerned about the existence of claims by foreign parties. Therefore, the role of the government is very important in this inventory, which certainly does not leave the role of local communities as traditional cultural informants. Concretely, the government should play an active role in carrying out this inventory activity.
Inventory is one
stepDefensive protectio(potential protective defensively).[35] This defensive protectionis intended as an effort to prevent the use of it against the traditional cultural law of a society. The steps taken by various countries and communities in utilizing thisdevensive protectionare as mentioned above by building adatabaserelated to the country's culture. Thus, thisdatabasecan be used as a comparative document (prior art) when there is a claim against the intended traditional knowledge. Australia and China already have complete documentation of theirexpression of folklore. the right documentation model related to Traditional Cultural Expressions aspects ofaccessability. The digital model of documentation using adatabase isconsidered as an effective model.[36]
Thus an inventory of cultures in Indonesia provides several advantages including:[37]
1) Inventory can at least be used as evidence that a traditional culture belongs to the Indonesian people, if it is found in Indonesia. So, when there are foreign parties who claim ownership of the culture, the Indonesian side can refute it by using the inventory .
2) Inventory can be used as a comparison document (prior art) in granting rights to any intellectual property. During this time, what is common is piracy (read: cultural theft by foreign parties which is then registered as an object of IPR by them. The Indonesian side has difficulty in denying ownership of the culture, because there is no inventory of traditional culture in Indonesia.
An inventory of culture can be used as a first step in further cultural protection. For example, is used as the basis for the distribution of benefits (benefit sharing) with the foreigners who want to use the culture. At this time the Ministry of Culture and Tourism has made various efforts to protect the utilization of cultural heritage, including:
a) Request to local governments to carry out an inventory. Traditional Knowledge and Traditional Cultural Expressions (since 2003) are based on the Minister of Culture and
Tourism Circular Number: SE.01/HK.501/
MPK/200.
b) Inventory of Traditional Knowledge (TK) intellectual property and Traditional Cultural Expressions (TCEs) such as architecture, weaving in several regions of Indonesia.
c) Preparation of the document "Overview of Efforts to Protect Intellectual Property of Traditional
Knowledge and Traditional
Cultural Expressions ".
d) Formulation and issuance of the Minister of Culture and Tourism Regulation concerning Guidelines and Criteria for the Protection of Intangible Cultural Heritage.
The Ministry of Culture and Tourism has also signed cooperation with the Ministry of Law and Human Rights to protect, develop and utilize the intellectual property of the country's traditional cultural heritage expression.[38]
The government in this case has reminded governors, regents and mayors throughout Indonesia to actively carry out an inventory of regional cultural works. After being inventoried, regional cultural works are registered with the Ministry of Law and Human Rights for intellectual property rights (IPR).
Based on data from the National Legal Development Agency of the Indonesian Ministry of Law and Human Rights. 2012, from 34 province in the new homeland three provinces that already carry out an inventory of TCEs namely Bali, West Nusa Tenggara, Yogyakarta[39]and South Sumatra which carried out an inventory. The result is that there are around 600 cultural arts in all three provinces (Bali, Nusa Ten , West Ggara, Yogya ) . Furthermore, the EBT inventory in South Sumatra has also been carried out an inventory but only a part of it is Ogan Komering Ulu Regency , Muara Enim Regency, and Lahat Regency.[40]
E . Conclusion
From the description above, it can be concluded thatthe legal protection of traditional cultural expressionsshould bemore to the justice of the community.For the forward p erlu no empowerment Members Legal Documentation and Information Network (MLDI) which exist in all regions of the country to the purpose ofthe data base ofEBT. Thus it can be easily searched and found to be used, responded to and developed further, especially by the legal community.
Additionally, it needs an active role of citizens of the state (public) and the local government to make an inventory and documenting, registering and publicating massively-owned areas are associated with EBT at the Directorate General of Intellectual
Property. The purpose of registration is for each product and culture born as TCEs to obtain adequate protection so that ownership of n-ownership born from TCEs cannot be claimed by other countries.
No less important is the need to embed the concept ofconserve and exhibition(preserve and exhibit) in TCEs which shows and gives signals to the international world that the culture is the property of the Indonesian people.For the future not only need an inventory of renewable energy but also the documentation in the form ofa databaseand registration as material evidence related to foreign parties (public AEC) in case of abuse in the utilization (misappropriation). because TCEs has potential economic value.
References :
[1] The number of islands in Indonesia is 'reduced' 4,042 units. Metrotvnews. Friday, 18 October 2013. Accessed 20 October 2016
[2] http://www.laskarncc.com/2015/11/jumber- provinsi-di-indonesia-tahun-2016.html . access October 24, 2016.
[3) Ranggalawe S, Masalah Perlindungan HAKI
bagi Traditional
Knowledge, http://www.hukumonline.com/berita /baca/hol20725/mempersoalkan- protection- itraditional-knowledgei . access 6 November 2014. 5
[4]http://www.ragamseni.com/category/pengundersta nding-seni-dan-cultural/ . Access October 30 , 2016.
[5] Read Article 38 of Law No. 28 of 2014 concerning Copyright .
[6] Saidin,OK.,Aspek Hukum Hak Kekayaan Intelektual (Intellectual Property Rights),Revised Edition, 9th Edition, PT. RajaGrafindo Persada, Jakarta, 2015, p. 1 .Saidin, OK.,op.cit, p. 242.
[7] Culture is defined as a way of life that continues to grow and is recognized by a group of people who are then passed on from generation to generation. see http://www.ragamseni.com/categ ory/ understanding- seni- and- cultural/ . Access October 24, 2016.
[8] In reality Indonesia almost did nothing when Malaysia claimed the song 'Rasa Sayange' which actually belonged to the Indonesian people. the song was sung by several Malaysian youths at the opening of the Japan-Asean youth exchange forum in Tokyo in mid-October 2007. Besides that the song "Rasa Sayange" was made ajinglein one of the Malaysian tourism advertisements. implicitly that the song belongs
to Malaysia. Likewise when 'Reog Ponorogo' was claimed as Malaysian culture. See Budi Agus Riswandi, TheDynamics of Intellectual
Property Rights in Creative
Communities,Printing I, Center for Intellectual
Property Rights Faculty of
Law, Islamic University of Indonesia, Yogyakarta, 2009, p. 49. We can simply see that the problem lies in weakness in its implementation, namely the inability of Government agencies whose main duties and functions are for the supervision and protection of Folklor Copyright and traditional creativity. Deeper is the weakness in terms of legal material, which has not yet been finalized until the implementation rules. H ingga currently implementing rules mandated by Article 38 (4) UUHC 2014 which states: Further provisions on copyright held by the State on traditional cultural expressions as referred to in paragraph (1) shall be regulated by Government Regulation. has not been established until now. The mandate is normatively contained in Article 125 of the UUHC 2014 which states "Regulations on the implementation of this Law must be set no later than 2 (two) years from the enactment of this Law."
[9] Eddy Damian,Glosarium Hak Cipta dan Hak Terkait,Alumni, Bandung, 2012. p. 29
[10] See Considering the Act No. 28 of 2014 concerning Copyright.
[11] The International Law Study Institute, Faculty of Law, University of Indonesia cooperates with the Directorate General of IPR of the Ministry of Law and Human Rights.
[12] Muhammad Syaifuddin, Annalisa Yahanan, and Yunial Laili Mutiari,Desain Industri, Perspektif
Filsafat, Teori dan Dogmatik
Hukum,Malang, Tunggal Mandiri. Pub lishing, 2009, p. 27
[13] ibid,p. 31. See Sunaryati Hartono,Hukum Ekonomi dan Pembangunan Indonesia, Jakarta, Bina Cipta,1982, 124. See also Muhamad Jumhana,Hak Kekayaan Intelektual: Teori dan Praktik,Citra Aditya Bakti, Bandung, pp. 25-26.
[14] Protection of Regional Cultural Law, National Legal Development Agency of the Indonesian Ministry of Law and Human Rights, Publisher of the National Legal Development Board of the Ministry of Law and Human Rights, 2011 p. p. 11
[15] Agus Sardjono,Pengetahuan Tradisional: Studi Mengenai Perlindungan Hak Kekayaan Atas Obat-obatan, Cet. 1, Postgraduate Program,
Faculty of Law, University of Indonesia, Jakarta, 2004 p. 41
[16] Traditional Knowledge and Its Safeguards in Indonesia, March 2008, http: //sassy 08.blogspot.com/2008/03/traditional-knowledge- and- effort-html. Access November 6, 2016.
[17] Protection of Regional Cultural Law, National Legal Development Agency of the Indonesian Ministry of Law and Human Rights, Publisher of the National Legal Development Board of the Ministry of Law and Human Rights , 2011 p.
[18] Ubbe Ahmad,Perlindungan Hukum Kebudayaan Daerah, East Jakarta, National Legal Development Agency, 2011, p. 55 .
[19] In Robert M. Sherwood,Intellectual Property and Economic Development: Westview Special Studies in Science Technology and Public Policy,Westview Press Inc., San Francisco,
1990, p. 65. See Ranti Fauza
Mayana,Perlindungan Desain Industri Di Indonesia Dalam Era Perdagangan Bebas,Jakarta, PT. Gramedia Widiasarana Indonesia, 2004, p. 44-45.
[20] Rita Silvia.Tinjauan Hukum Perlindungan Hak Cipta atas Motif Kain Ulos Batak Toba (Penelitian Kerajinan Ulos di Kabupaten Samosir),Medan: Graduate School of the University of South Sumatra. 2008. p. 28
[21] The definition of Traditional Cultural Expressions is not found in Law No. 28 of 2014, but can be seen in the Draft Bill on the Protection and Utilization of Intellectual Property Traditional Knowledge and Traditional Cultural Expressions which states "" Traditional Cultural Expressions are intellectual works in the arts, including literary expressions that contain elements of traditional heritage characteristics that are produced, developed, and maintained by local communities or indigenous peoples. "
[22] Agus Sarjono,Hak Kekayaan Intelektual &
Pengetahuan Tradisional,Alumni, Bandung, 201 0, p. 490 .
[23] H. OK. Saidin,Aspek Hukum Hak Kekayaan Intelektual (Intellectual Property Rights),Revised Edition, 9th Edition, PT. RajaGrafindo Persada, Jakarta, 2015, p. 241 [24] Saidin, OK.,op.cit, p. 242.
[25]http://nationalgeographic.co.id/berita/2014/12/pre h-masyarakat-ekonomi-asean-mea-2015 . access 6 November 2016.
[26] Understanding the ASEAN Economic
Community (AEC)
2015, http://nationalgeographic.co.id/berita/2014
/12/preh-masy peoples-ekonomi-asean-mea- 2015 . access 6 November 2016.
[27] Protection of Regional Cultural Law, National Legal Development Agency of the Indonesian Ministry of Law and Human Rights, p. 38 . [28] Budi Agus Riswandi and Shabhi Mahmashani,
Dinamika Hak Kekayaan Intelektual Dalam Masyarakat Kreatif,Intellectual Property Rights Center,Faculty of Law, Islamic University of Indonesia, Yogyakarta, 2009, p. 55.
[29] Philippe Nonet and Philip Selzenik,Hukum Responsif, Pilihan dan Masa Transisi, (Jakarta:
HuMa, 2003). p. 59.
[30] Philippe Nonet and Philip Selzenik,op.cit,p. 64, responsive law can be described with the following substance components:
1. Substantive justice as the basis of legal legitimacy.
2. Regulation is a subordination of policy.
3. Legal considerations are oriented towards the goals and consequences for the benefit of society.
4. The use of discretion is highly recommended in making legal decisions while remaining goal oriented.
5. Fostering an obligation system as a coercive system.
6. Morality and cooperation as a principle in the implementation of law.
7. Power is used to support the vitality of the law in serving the community.
8. Rejection of the law, must be seen as a lawsuit against the legitimacy of the law.
9. Access to public participation, opened wide, in the context of integration of legal and social advocacy
[31] Abdul Kadir Besar,“Impelementasi Cita Hukum Dan Penerapan Asas-Asas Nasional Sejak Lahirnya Orde Baru”,National LawMagazine , BPHN Ministry of Law and Human Rights, No1, 1995. p. 27
[32] Protection of Regional Cultural Law, National Legal Development Agency, Ministry of Law
and Human Rights Republic of
Indonesia,ibid,p. 23.
[33] Agus Sarjono,ibid, pp 15-17.
[34] ibid
[35] Protection of Regional Cultural Law, National Legal Development Agency of the Indonesian Ministry of Law and Human Rights,ibid,p. 28 [36] Agus Sardjono, 2004, p. 240.
[37] Protection of Regional Cultural Law, National Legal Development Agency Ministry of Law and Human Rights Republic of Indonesiaop.
[38] Regional Cultural Works Must be inventoried, 19 June 2009, In the Socio-Cultural Report: http //
www.tvone.co.id/berita/view/16366/2009/06/19/
karya_budaya_daerah_wajib_di_inventisasi.
[39] see also http: // clubbing. When again. com /
archive / index. php /
t73137. html. protection_culture_indonesia_lema h, access 04 October 2016 .
[40] South Sumatra Ministry of Law and Human Rights Regional Office , 2016.
