Intergovernmental committee on intellectual property and genetic resources traditional knowledge and folklore



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E

WIPO/GRTKF/IC/17/INF/5(B)

OriGINAL: English

DATE : DECEMBER 6, 2010



INTERGOVERNMENTAL COMMITTEE ON INTELLECTUAL PROPERTY AND GENETIC RESOURCES TRADITIONAL KNOWLEDGE AND FOLKLORE

Seventeenth Session

Geneva, December 6-10, 2010

WIpo indigenous panel ON THE ROLE OF THE PUBLIC DOMAIN CONCEPT: EXPERIENCES IN THE FIELDS OF GENETIC RESOURCES, TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS: EXPERIENCES FROM INDONESIA



Document prepared by

Mrs. Miranda Risang Ayu Palar

Legong Keraton Peliatan, Ubud,

Bali, Indonesia

REFORMING ‘PUBLIC DOMAIN’

The Role of Public Domain in Indonesian Cultural Community:

The Cases of Legong Keraton Peliatan Balinese Dance,

Sumba Woven Clothes, and Ulin Kalimantan Timber*

Miranda Risang Ayu Palar*


Lecturer and Researcher, Faculty of Laws, University of Padjadjaran, Bandung, West Java

Balinese Dancer of Legong Keraton Peliatan, Ubud, Bali


Indonesia



  1. Indonesia as a Cultural Community

This presentation would be based on a view that the examples of Traditional Cultural Expressions explained in this paper are geographically originated from Indonesian archipelago. Thus, as a nation which are bound by the same socio-political and cultural history, Indonesia is also regarded as a big cultural community that includes hundreds of ethnic groups, tribal peoples, and traditional as well as local communities, where thousands of Traditional Knowledge, Traditional Cultural Expressions and millions of Genetic Resources related to Traditional Knowledge are situated and maintained from generation to generation by Indonesian people.


Although Indonesia now is known as a form of a modern state, the development of its original social-political and cultural jurisdiction is mainly rooted from the archipelagic traditional concept of the unity of Nusantara (‘nusa’ means islands, ‘antara’ means the spaces between the islands). Epics about the vow of Gajah Mada from Majapahit Kingdom to unite thousands of islands of Nusantara under Java empires strongly indicate that this concept had been established hundred years before the first ship from Europe ‘found’ Indonesian archipelago in the 16th century.
Currently, legal bases of this view are written in article 32 and 33 of the 1945 Constitution of the Republic of Indonesia. Article 32 (1) of 1945 Constitution assures that the state develops Indonesian national culture in the world’s civilization and guarantees the freedom of the people to maintain and enhance their cultural values, while article 33 (3) of the Constitution substantiates that a power upon lands, water and all incorporated natural resources in Indonesian jurisdiction is held by the state for the utmost welfare of Indonesian people.
These constitutional bases are in line with the concept of the spirit of nation from Friederich Carl von Savigny. Savigny believes that there is one spirit of a nation which are expressed in languages, behaviors and organizational means, which characterize their ideology and cultures, and are rooted from the same historical experiences. Ruth Benedict calls the map of these expressions as the pattern of culture of a nation1. The views of these scholars ascertain that a nation, like Indonesia, can also be regarded as a cultural community that possesses its own unique and evolving cultural expressions.
However, as a cultural community that includes hundreds of smaller ethnic groups, and tribal peoples, there is also, quoted a term used by Bagir Manan, ‘a natural power tension’ between Indonesia as a bigger cultural community with the other smaller cultural communities in Indonesian jurisdiction.
Historically, this tension was worsened when Indonesia had been a colony of the Netherlands for 350 years. In those long period of time, thousands of traditional structures of villages and local kingdoms in Indonesian land had been destroyed under the Netherlands Indie legal regime which differentiated people living in Indonesia as three vertical classes with the third, the lowest, or ‘the slave’ class, was all Indonesian people (‘bumi putra’, the indigenous people of the Netherlands). After the proclamation of Indonesian independence on 17th of August, 1945, Indonesia erases the colonial classes, becomes a democratic modern state with European Continental legal system, and declares one of its main characters as ‘a diverse in a unity’ cultural community country of Indonesia, or Indonesian multicultural nation.
Since the proclamation of Indonesian independence, the tension has been swinging from the more dominant and centralised culture (western Indonesian culture, Javanese culture) to the more minor and peripheral cultures (eastern Indonesian culture, other cultures outside Java island). Under the multiple amendments of the 1945 Constitution as well as the provincial and local laws, the natural tension has been maintained. In this regard, there is an evolving concept of functional decentralisation of culture for the best implementation of the freeiest authonomy politic of law to be given to the more minor and peripheral cultures in provincial and local areas of Indonesia.
The legal bases of the above concepts can be found in article 18 B (2)and 28 I (3) of 1945 Indonesian Constitution. Article 18 B (2) ascertains that the state acknowledges and respects the existence of peoples of Adat Laws together with their traditional rights as long as the rights are still existed and in line with the development of the society and the constitutional principle of the unity of Indonesia. Article 28 I (3) guarantees that the cultural identity and the rights of traditional communities are respected in line with the development of human civilization.
In short, there are two layers of cultural communities; firstly, the national cultural community who develops their national culture, and secondly, the local cultural communities, whether they are tribal people, traditional people, and others, who possess their unique local cultures which are geographically originated from the land of Indonesia. In different degrees, all of the local cultural communities use Adat Laws in guarding their traditional knowledge, traditional cultural expressions as well as the associated genetic resources. In the logic of private property versus public domain in the existing Intellectual Property Rights system, the jurisdiction of Indonesian Adat Laws is in the space of public domain.
Surely, there is always a natural tension between the two layers. However, based on the spirit of cultural democracy in the existing Indonesian legal system, the most original and strongest rights on cultures, including in possessing and controlling their cultural properties, should be held by the second layers. The better the power is given to the local cultural communities upon their own traditional knowledge, traditional cultural expressions and the associated genetic resources, the stronger the national identity of Indonesia becomes.

Several examples of traditional cultural expressions, traditional knowledge and the associated genetic resources used in this paper are Legong Keraton Balinese Dance, Sumba Woven Clothes, and Ulin Kalimantan Timber2. All of them are originated from areas outside Java, the predominant island. Their geographical origins are explained below:









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