THE PROTECTION OF TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSION A COMPARATIVE APPROACH.
THE PROTECTION OF TRADITIONAL
KNOWLEDGE AND TRADITIONAL
CULTURAL EXPRESSION
A COMPARATIVE APPROACH
By:
Dr. NK Supasti Dharmawan, SH., M.Hum., LLM.
Putu Aras Samsithawrati, SH., LLM.
Presented in the International Seminar on
“Recognition and Protection of Local Communities’ Rights
and Traditional Knowledge”
Denpasar, 7 July 2015
Dr. Ni Ketut Supasti Dharmawan,SH,M.Hum,LLM
•
•
•
•
•
•
•
is a Senior Lecturer at Private Law Department of Faculty of Law Universitas Udayana
(FL UNUD)
Teach business laws and intellectual property rights (IPR) law
Participated in IPR course in UTS Sidney and IPR training in Japan Patent Office, Tokyo.
Obtained bachelor of law at FL UNUD, master of laws and Doctor of Law at
Universitas Diponegoro, and Master of Globalisation and Law at Maastricht
University.
Experienced organizing institutional and academic programs with foreign partner,
including, inter alia, as Project Manager of NPT Nuffic IDN 223 cooperation between
FL UNUD and Maastricht University and as an Associate Director of Centre for
Commercial Law and Economics in Cooperation with San Fransisco University School
of Law.
Currently serve as Head of Master of Law at Postgraduate Program Universitas
Udayana.
Published many publications include; Global Tourism and Environment: Toward
Promoting Sustainable Tourism: A Human Rights Perspective (Indonesia Law Review,
Year 2 vol 1, January-April 2012), Software Copyright and Electronic Security System:
Specific Issues Implementing Software Checker for Legal Writing (Academic Research
International, Vol. 5, Number 6, 2014), and Sustainable Tourism and Law (Co-Editor,
Eleven International Publisher: 2014).
Putu Aras Samsithawrati SH,LLM
• is a lecturer at International Law department of FL UNUD and
assisting several courses such as International Law,
International Contract Law and International Business Law
• Received her bachelor degree at FL Universitas Indonesia and
master of Globalization and Law Specialization of Corporate
and Commercial Law Program at FL Maastricht University, the
Netherlands
OUTLINE PRESENTATION
1. Introduction
2. Legal Issues
3. The Traditional Knowledge and Traditional
Cultural Expression (TCE) related with IPR Law
4. Some specific issues : the law enforcement of
IPR related to tourism and the Traditional
Knowledge and Traditional Cultural
Expression (TCE) in Bali
5. Conclusion
INTRODUCTION
• Protecting Traditional Knowledge (TK) and
Traditional Cultural Expression (TCE) under
IPR regime debatable issue for such a
long time.
• TRIPs Agreement as a comprehensive
convention of IPR in international level
silent concerning this matter.
• However, WIPO pays attention in
protecting TK and TCE related with IPR Law.
• Indonesia TCE is protected under
Indonesian Copyright Law:
Old Law (Law No. 19 of 2002) Give more
protection for TCE and mention clearly the TCE
(Art. 10(2))
New Law (Law No. 28 of 2014) regulates TCE in
general terms.
Although the protection is still in general, it can be
considered that there is room to protect TCE in
Indonesia.
LEGAL ISSUES
• Whether Traditional Cultural
Expression (TCE) is suitable to
be protected under IPR
regime?
• If yes, under which IPR
regime?
• How to determine that the
works belong to TCE and not
belong to individual’s work?
Traditional Knowledge (TK) and Traditional Cultural
Expression (TCE) related with
IPR Law
World Intellectual Property Organization (WIPO)
particularly WIPO’s booklet known as Traditional Cultural
Expression.
Although Traditional Cultural Expressions is still debatable,
whether those works covered by Intellectual Property Law
or not, those issues greatly got attention from WIPO, more
importantly based on Article 31 United Nations Declaration
on the Rights of Indigenous Peoples also provides
indigenous peoples have the right to maintain, control,
protect and develop their Intellectual Property over such
cultural heritage, traditional knowledge and traditional
cultural expression. The Declaration is frequently referred
to in WIPO’s work
WIPO’s extensive fact
finding & consultation since
1998 TCE should be guided
as far as possible by the real
needs articulated by indigenous
people and local communities
and, most importantly, their
actual experiences with the
IPR system.
What is TK?
TK is a living body of knowledge that is
developed, sustained and passed on from
generation to generation within a community, often
forming part of its cultural or spiritual identity.
Example of TK:
Agricultural
environmental
medicinal knowledge
knowledge associated with GRs knowledge
concerning traditional medicines,
traditional fishing/hunting techniques,
animal migration patterns
water management.
Source: WIPO’s booklet (Intellectual Property and Genetic Resources,
Traditional Knowledge and Traditional Cultural Expressions)
What is TCE?
TCE The forms in which traditional culture is expressed.
are seen as integral to the cultural and social identities and heritage
of indigenous and local communities, reflectingcore values and
beliefs.
TCEs are handed down from one generation to another, and are
maintained, used or developed by their holders. They are constantly
evolving, developing and being recreated.
May be either tangible, intangible, or, most usually, a
combination between them.
Example of TCE:
verbal expressions: stories, tales, poetry
Musical expressions: songs and instrumental music
Expressions by actions: dances, plays, artistic forms of ritual
Tangible expressions: drawings, paintings, carvings, jewelry,
costumes, musical instruments.
Source: WIPO’s booklet (Intellectual Property and Genetic Resources,
Traditional Knowledge and Traditional Cultural Expressions)
Former Indonesian Copyright Law (Law No. 19/2002)
Consideration Section of letter “a” of Copyright Law states
"whereas Indonesia is a country with diverse
ethnic/tribal people and cultures as well as its richness
of art and literature that require the protection of
intellectual property rights which derives from such
diversity".
Therefore, the creations which have the legal protection are
not only the individual, but also the communal works of
folklore and all other folk cultures that belong to the people,
e.g. folktales, fables, legends, chronicles, songs, crafts,
choreography, dance, calligraphy and other artworks
Stipulated in Article 10 of the Law No.19/2002.
In current Indonesian Copyright Law (Law No.
28/2014), TCE is regulated in Art. 38-39
INDONESIAN COPYRIGHT LAW
OLD LAW
NEW LAW
Art. 38:
Art 10:
(1) Copyright on TCE are held by the state
(1) The state shall hold the copyright for
works from prehistoric remains,
(2)The state shall inventory,
historical and other national cultural
maintain, and preserve TCE
objects.
as referred to in par (1)
(2) The state shall hold the copyright for
folklores and works of popular culture
(3)The use of TCE as referred to
that are commonly owned, such as
in par (1) must consider the
stories, legends, folk tales, epics, songs,
values that live in the
handicrafts, choreography, dances,
calligraphies and other artistic works.
caretaker community .
(3) To publish or reproduce the works as
referred to in par (2), any person who is
not the citizen of Indonesia shall, firstly,
seek permission from the institution
related to the matter.
IPR protects TK and TCE?
• Copyright -------------- TCE Arts
• Industrial design ----- TCE Arts
• Trademark ------------- TCE Arts (dance),
name of TCE
dance
• Patent ------------------- TK GRs, herbal
medicine
• Trade secret ------------ TK, TCE food
How to determine that the works belong to TCE and
not belong to individual’s work
• Indonesian Copyright Law:
State , inventory, maintain and preserve TCE
Carefully identify
TCE -- shall be valid indefinetely
Modification of TCE – 50
years
Individual creation work – 70
years
CONCLUSION
• TCE considered can be protected under IPR
regime WIPO, Indonesian Law
• The protection of TCE related to copyright,
patent, trademark, industrial design, trade
secret
• The state works with the caretaker community
and then carefully observe the creation works
to inventory, maintain and preserve TCE – so
that able to certainty determine whether one
creation work fall under TCE, modification of
TCE or combination between them.
THANK YOU
KNOWLEDGE AND TRADITIONAL
CULTURAL EXPRESSION
A COMPARATIVE APPROACH
By:
Dr. NK Supasti Dharmawan, SH., M.Hum., LLM.
Putu Aras Samsithawrati, SH., LLM.
Presented in the International Seminar on
“Recognition and Protection of Local Communities’ Rights
and Traditional Knowledge”
Denpasar, 7 July 2015
Dr. Ni Ketut Supasti Dharmawan,SH,M.Hum,LLM
•
•
•
•
•
•
•
is a Senior Lecturer at Private Law Department of Faculty of Law Universitas Udayana
(FL UNUD)
Teach business laws and intellectual property rights (IPR) law
Participated in IPR course in UTS Sidney and IPR training in Japan Patent Office, Tokyo.
Obtained bachelor of law at FL UNUD, master of laws and Doctor of Law at
Universitas Diponegoro, and Master of Globalisation and Law at Maastricht
University.
Experienced organizing institutional and academic programs with foreign partner,
including, inter alia, as Project Manager of NPT Nuffic IDN 223 cooperation between
FL UNUD and Maastricht University and as an Associate Director of Centre for
Commercial Law and Economics in Cooperation with San Fransisco University School
of Law.
Currently serve as Head of Master of Law at Postgraduate Program Universitas
Udayana.
Published many publications include; Global Tourism and Environment: Toward
Promoting Sustainable Tourism: A Human Rights Perspective (Indonesia Law Review,
Year 2 vol 1, January-April 2012), Software Copyright and Electronic Security System:
Specific Issues Implementing Software Checker for Legal Writing (Academic Research
International, Vol. 5, Number 6, 2014), and Sustainable Tourism and Law (Co-Editor,
Eleven International Publisher: 2014).
Putu Aras Samsithawrati SH,LLM
• is a lecturer at International Law department of FL UNUD and
assisting several courses such as International Law,
International Contract Law and International Business Law
• Received her bachelor degree at FL Universitas Indonesia and
master of Globalization and Law Specialization of Corporate
and Commercial Law Program at FL Maastricht University, the
Netherlands
OUTLINE PRESENTATION
1. Introduction
2. Legal Issues
3. The Traditional Knowledge and Traditional
Cultural Expression (TCE) related with IPR Law
4. Some specific issues : the law enforcement of
IPR related to tourism and the Traditional
Knowledge and Traditional Cultural
Expression (TCE) in Bali
5. Conclusion
INTRODUCTION
• Protecting Traditional Knowledge (TK) and
Traditional Cultural Expression (TCE) under
IPR regime debatable issue for such a
long time.
• TRIPs Agreement as a comprehensive
convention of IPR in international level
silent concerning this matter.
• However, WIPO pays attention in
protecting TK and TCE related with IPR Law.
• Indonesia TCE is protected under
Indonesian Copyright Law:
Old Law (Law No. 19 of 2002) Give more
protection for TCE and mention clearly the TCE
(Art. 10(2))
New Law (Law No. 28 of 2014) regulates TCE in
general terms.
Although the protection is still in general, it can be
considered that there is room to protect TCE in
Indonesia.
LEGAL ISSUES
• Whether Traditional Cultural
Expression (TCE) is suitable to
be protected under IPR
regime?
• If yes, under which IPR
regime?
• How to determine that the
works belong to TCE and not
belong to individual’s work?
Traditional Knowledge (TK) and Traditional Cultural
Expression (TCE) related with
IPR Law
World Intellectual Property Organization (WIPO)
particularly WIPO’s booklet known as Traditional Cultural
Expression.
Although Traditional Cultural Expressions is still debatable,
whether those works covered by Intellectual Property Law
or not, those issues greatly got attention from WIPO, more
importantly based on Article 31 United Nations Declaration
on the Rights of Indigenous Peoples also provides
indigenous peoples have the right to maintain, control,
protect and develop their Intellectual Property over such
cultural heritage, traditional knowledge and traditional
cultural expression. The Declaration is frequently referred
to in WIPO’s work
WIPO’s extensive fact
finding & consultation since
1998 TCE should be guided
as far as possible by the real
needs articulated by indigenous
people and local communities
and, most importantly, their
actual experiences with the
IPR system.
What is TK?
TK is a living body of knowledge that is
developed, sustained and passed on from
generation to generation within a community, often
forming part of its cultural or spiritual identity.
Example of TK:
Agricultural
environmental
medicinal knowledge
knowledge associated with GRs knowledge
concerning traditional medicines,
traditional fishing/hunting techniques,
animal migration patterns
water management.
Source: WIPO’s booklet (Intellectual Property and Genetic Resources,
Traditional Knowledge and Traditional Cultural Expressions)
What is TCE?
TCE The forms in which traditional culture is expressed.
are seen as integral to the cultural and social identities and heritage
of indigenous and local communities, reflectingcore values and
beliefs.
TCEs are handed down from one generation to another, and are
maintained, used or developed by their holders. They are constantly
evolving, developing and being recreated.
May be either tangible, intangible, or, most usually, a
combination between them.
Example of TCE:
verbal expressions: stories, tales, poetry
Musical expressions: songs and instrumental music
Expressions by actions: dances, plays, artistic forms of ritual
Tangible expressions: drawings, paintings, carvings, jewelry,
costumes, musical instruments.
Source: WIPO’s booklet (Intellectual Property and Genetic Resources,
Traditional Knowledge and Traditional Cultural Expressions)
Former Indonesian Copyright Law (Law No. 19/2002)
Consideration Section of letter “a” of Copyright Law states
"whereas Indonesia is a country with diverse
ethnic/tribal people and cultures as well as its richness
of art and literature that require the protection of
intellectual property rights which derives from such
diversity".
Therefore, the creations which have the legal protection are
not only the individual, but also the communal works of
folklore and all other folk cultures that belong to the people,
e.g. folktales, fables, legends, chronicles, songs, crafts,
choreography, dance, calligraphy and other artworks
Stipulated in Article 10 of the Law No.19/2002.
In current Indonesian Copyright Law (Law No.
28/2014), TCE is regulated in Art. 38-39
INDONESIAN COPYRIGHT LAW
OLD LAW
NEW LAW
Art. 38:
Art 10:
(1) Copyright on TCE are held by the state
(1) The state shall hold the copyright for
works from prehistoric remains,
(2)The state shall inventory,
historical and other national cultural
maintain, and preserve TCE
objects.
as referred to in par (1)
(2) The state shall hold the copyright for
folklores and works of popular culture
(3)The use of TCE as referred to
that are commonly owned, such as
in par (1) must consider the
stories, legends, folk tales, epics, songs,
values that live in the
handicrafts, choreography, dances,
calligraphies and other artistic works.
caretaker community .
(3) To publish or reproduce the works as
referred to in par (2), any person who is
not the citizen of Indonesia shall, firstly,
seek permission from the institution
related to the matter.
IPR protects TK and TCE?
• Copyright -------------- TCE Arts
• Industrial design ----- TCE Arts
• Trademark ------------- TCE Arts (dance),
name of TCE
dance
• Patent ------------------- TK GRs, herbal
medicine
• Trade secret ------------ TK, TCE food
How to determine that the works belong to TCE and
not belong to individual’s work
• Indonesian Copyright Law:
State , inventory, maintain and preserve TCE
Carefully identify
TCE -- shall be valid indefinetely
Modification of TCE – 50
years
Individual creation work – 70
years
CONCLUSION
• TCE considered can be protected under IPR
regime WIPO, Indonesian Law
• The protection of TCE related to copyright,
patent, trademark, industrial design, trade
secret
• The state works with the caretaker community
and then carefully observe the creation works
to inventory, maintain and preserve TCE – so
that able to certainty determine whether one
creation work fall under TCE, modification of
TCE or combination between them.
THANK YOU