Traditional Cultural Expressions: What and How is It Protected?

Traditional Cultural Expression: What and How is It Protected?

By  Ni Ketut Supasti Dharmawan

Fakultas Hukum Universitas Udayana

            Traditional Cultural Expressions   in the perspective of intellectual property law are protected through the copyright law regime. More specifically, it can be stated that NRE is included in the scope of the communal intellectual property sector. In general, the discussion of intellectual property ownership (Intellectual Property Rights), on the one hand refers to the concept of protection based on Individual Rights. For example, the protection of rights to trademarks which are regulated under Law Number 20 of 2016 concerning Trademark and Geographical Indications as well as Patents which are regulated under Law Number 13 of 2016 concerning Patents. However, on the other hand, the study also refers to the concept of protection based on Communal Rights, which is also known as communal intellectual property, such as Traditional Cultural Expressions.

With regard to communal intellectual property, pursuant to Article 38 paragraphs (1) and (2) of the Copyright Law, it can be stated that Copyright on Traditional Cultural Expressions is held by the State. In this regard, the State is obliged to make an inventory, maintain, and maintain traditional cultural expressions. Furthermore, it is also regulated that the use of traditional cultural expressions must pay attention to the values ​​that live in the community that bears it as regulated in Article 38 Paragraph (3) of Law Number 28 of 2014 concerning Copyright.

What is Traditional Cultural Expression?

Based on the Elucidation of Article 38 Paragraph (1) of Law No. 28 of 2014 it is explained that Traditional Cultural Expressions include one or a combination of the following forms of expression:

a. verbal textual, both oral and written, in the form of prose or poetry, in various themes and content of the message, which can be in the form of literary works or informative narratives;

b. music, including, inter alia, vocal, instrumental, or a combination thereof;

c. movement, including, among other things, dance;

d. theatre, which includes, among others, puppet  performances and folk  plays;

e. fine arts, both in two-dimensional and three-dimensional forms made of various materials such as leather, wood, bamboo, metal, stone, ceramics, paper, textiles, and others or a combination thereof; and

f. traditional ceremonies.

Elucidation of Article 38 Paragraph (3) of Law No. 28 of 2014 explains that what is meant by "living values ​​in the community that bears it" are customs, customary law norms, customary norms, social norms, and other noble norms that are upheld by the people of origin, who maintain, develop, and preserving those traditional cultural expressions

An example of a traditional cultural expression from Bali is the Endek ikat cloth, which in the context of communal intellectual property protection is covered in the Elucidation of Article 38 Paragraph (3) letter e. the Law No. 28 of 2014.

Protection of Traditional Cultural Expressions is also regulated through Article 1 point 4. of the Regulation of the Minister of Law and Human Rights No. 13 of 2017 concerning Communal Intellectual Property Data, stipulates that Traditional Cultural Expressions are all forms of expression of copyrighted works, both in the form of objects and intangibles, or a combination of both which indicates the existence of a traditional culture that is held communally and across generations. As regulated in Article 38 Paragraph (2) of Law No. 28 of 2014 concerning the state's obligation to take an inventory of works of traditional cultural expressions that are developed and preserved by the community that bears it, this obligation is also confirmed in Article 7 and Article 8 of the Regulation of the Minister of Law and Human Rights No. 13 of 2017. In this provision, it is emphasized that the obligation to carry out an inventory is carried out by the Minister who carries out government affairs in the fields of law and human rights. In carrying out the inventory, the ministry/institution and/or local government can cooperate.

What is inventoried?

In the context of the activity of inventorying traditional cultural expressions, the inventory data shall at least contain:

a. Traditional Cultural Expression Name

b. Custodian;

c. Forms of Traditional Cultural Expression

d. Classification

e. Region/Location

f. Location.

In order to strengthen the protection of the existence of Traditional Cultural Expressions that are still maintained and developed by the custodian community, the results of the inventory of Traditional Cultural Expressions are then recorded by filling out the Communal Intellectual Property registration form. In more detail, the inventory results are stated in the Traditional Cultural Expression Inventory Form and then recorded at the Indonesian Communal Intellectual Property National Data Center, https://kikomunal-indonesia.dgip.go.id.  It is hoped that the inventory and recording of works of Traditional Cultural Expressions of an area in the future can strengthen the protection of traditional cultural works from the perspective of communal intellectual property.

                                  ----Supasti January 2022---