PROTECTION AND SUSTAINABILITY OF INDONESIAN
TRADITIONAL KNOWLEDGE AND FOLKLORE:
LEGAL AND NON-LEGAL MEASURES
The challenge toward the sustainability of Indonesian cultural heritage demands urgent attention, as it has given Indonesia intangible wealth which is equally important to other tangible economic wealth. Indonesian cultural heritage which is in most part, represented by its traditional knowledge and folklore (TKF), has been seen by the Indonesian government only from its commercialization point of view. The government effort to legislate the protection of Indonesian TKF is in major part, based on the concept to protect the intellectual property (IP) and commercial values of the TKF. This concept can be seen on the texts of the Bill of Protection and Utilization of Intellectual Property of Traditional Knowledge and Traditional Cultural Expression. It means that the Bill does not particularly aim on the preservation and sustainability of Indonesian TKF that underlies Indonesian culture. The protection of Indonesian TKF only from commercial misappropriation and misuse cannot prevent Indonesia from losing its TKF and thus, losing its intangible wealth. This is because Indonesian communities rarely see their TKF from its economic aspect, but rather they see it from its spiritual value, way of life, cultural identity, and social tie that unites the country. The economic aspect of TKF will become apparent only if the TKF is well sustained. This paper argues that the present Bill of Protection and Utilization of IP of TK and TCE will be difficult to be implemented and accepted by Indonesian communities, if the Bill only focuses the protection on the IP and commercial aspects of the TKF. Besides that, the Bill will be unable to prevent the loss of Indonesian TKF. Therefore, this paper argues that the Bill must broaden the scope of TKF protection to include creating new efforts to preserve, sustain, and respect Indonesian TKF, including its IP and relevant communities. To successfully achieve its goal to protect Indonesian TKF, the government must support the Bill with some legal and non-legal measures, such as: Revitalization of Indonesian customary law (Adat law) that has often guided Indonesian communities in managing their TKF; Documentation of Indonesian TKF; Passing the Bill of Recognition and Protection of Adat Communities; Education of government officials and courts who in majority, do not understand fully the concept of TKF protection and confuse it with conventional IP protection. Moreover, the government must also tackle problems of increasing radicalization among Indonesian Moslems that often attack communities that practice their TKF deemed in contrary to Islamic norms. In summary, this paper aims to discuss how the legislation to protect Indonesian TKF should be drafted and what must be done to implement the legislation to protect and sustain Indonesian TKF that constitutes our cultural heritage.
* Dr. Afifah Kusumadara. SJD in intellectual property law. Assistant Professor at the Faculty of Law, Brawijaya University, Indonesia. This article has been presented in the 8th Asian Law Institute (ASLI) Conference 2011, held in the Faculty of Law, Kyushu University, Japan. It is also published in the US-China Law Review, Volume 8, Number 6, June 2011, pages 548-565.