The Existence of Copyrights on Traditional Cultural Expressions Held by the State: Implications and Orientations

Abstract

Expression of traditional culture is an intellectual property with a communal character. In this case, as a multicultural country, of course there are many aspects of culture in Indonesia that meet the aspects to be registered as part of intellectual property. The legal issue in this research is that there is no Government Regulation as mandated in Article 38 paragraph (4) of the Copyright Law. This study aims to understand the implications as well as to suggest future arrangements regarding copyright regulation on traditional cultural expressions. This research is normative legal research. The primary legal materials in this study include: the 1945 Constitution of the Republic of Indonesia, the Copyright Law, and the Regulation of The Minister Of Law and Human Rights of Communal Intellectual Property. Secondary legal materials include the draft of Traditional Knowledge and Traditional Cultural Expressions law and studies on intellectual property rights for traditional cultural expressions. Non-legal materials include language dictionaries. This research uses a statutory and conceptual approach. The results of the study confirm that the implication of the absence of a Government Regulation as mandated by Article 38 paragraph (4) of the Copyright Law is a legal ambiguity in the phrase “held by the state”. This also includes the unregulated potential for inter-regional disputes that claim each other over a culture, including disputes between countries over cultural claims, especially in countries belonging to the same family. Apart from that, the future orientation that can be carried out is to form Government Regulations as mandated by Article 38 paragraph (4) of the Copyright Law, of course by harmonizing the law on various existing regulations. In addition, to make it more optimal, it is necessary to pass the Bill on Traditional Knowledge and Traditional Cultural Expressions to guarantee legal certainty for cultural arrangements in Indonesia.

1. Introduction

Culture is one of the essential aspects of the establishment of a nation and state [1]. In this case, culture can become an identity as well as a unifying spirit for the existence of a nation or state [2]. Indonesia is a country with a variety of cultures. Indonesia deserves the nickname, the house of cultural diversity or a home for various existing cultures [3]. That is because almost all regions in Indonesia have their style and cultural system, which are distinctive and of various kinds. The UNESCO World Heritage Convention in 2022 places Indonesia with the most world heritage in Southeast Asia, surpassing Vietnam and Thailand in second and third place [4]. Furthermore, until the end of 2021, Indonesia has 1239 intangible cultural heritages recorded by UNESCO [5]. That is reinforced by the Ministry of Education and Culture release, which has determined as many as 289 Indonesian intangible cultural heritages by the end of 2021 [6]. That shows that almost every year, there are hundreds of additions regarding releasing the amount of Indonesia’s intangible cultural heritage. This number is relatively large compared to other countries, especially in Asia and Southeast Asia.

Furthermore, at the end of 2022, Indonesia’s intangible cultural heritage will be number two in Southeast Asia after Vietnam. The following table shows the number of countries with intangible cultural heritage in Southeast Asia.

From Table 1 above, it can be concluded that Indonesia occupies the second position in terms of the amount of intangible heritage in 2022 that has been recognized by UNESCO. Indonesia is in second place after Vietnam, with 14 intangible cultural heritages.

No	Country Name	Total Intangible Cultural Heritage
1.	Filipina	4
2.	Laos	1
3.	Thailand	3
4.	Singapura	1
5.	Timor Leste	1
6.	Malaysia	6
7.	Kamboja	5
8.	Vietnam	14
9.	Indonesia	12
10.	Myanmar	0
11.	Brunei Darussalam	0

Table 1.

Countries with intangible cultural heritage in Southeast Asia.

(Source: UNESCO Intangible Cultural Heritage).

The data shows that the Indonesian nation’s cultural wealth is so varied that it needs to be preserved and recorded. In this context, the state plays a role in facilitating and establishing appropriate regulations to preserve and record the cultural heritage of the Indonesian nation. Indonesia has Law no. 28 of 2014 concerning Copyright (hereinafter referred to as the Copyright Law) which facilitates aspects of intellectual property regarding Indonesian cultural heritage. That is as stated in Article 38 of the Copyright Law, which emphasizes traditional cultural expressions whose creators are unknown (communal) to be made part of the communal intellectual property of the Indonesian nation. In addition, the struggle to accommodate traditional cultural expressions and knowledge in laws was also fought in the National Legislation Program 2010-2014 which included the Draft Law on Traditional Knowledge and Traditional Cultural Expressions (hereinafter referred to as the Draft Law concerning Traditional Knowledge) to be ratified as a separate law [7]. Even so, until 2022, the legislators have not ratified the Draft Law concerning Traditional Knowledge.

The legal issue in guaranteeing intellectual property rights for traditional cultural expressions is the provision of Article 38 paragraph (4) of the Copyright Law which mandates through delegation regulations or further regulations the regulation of copyrights on traditional cultural expressions held by the state through the establishment of Government Regulations. However, until 2022, a Government Regulation as a delegation regulation on Article 38 paragraph (4) of the Copyright Law has yet to be formed. The government only regulates communal traditional cultural expressions in the Minister of Law and Human Rights Regulation No. 13 of 2017 Concerning Communal Intellectual Property Data. In fact, with the mandate of Article 38 paragraph (4) of the Copyright Law, there should be a Government Regulation that specifically regulates copyrights on traditional cultural expressions held by the state.

Moreover, the Minister of Law and Human Rights on Communal Intellectual Property only has the character of an inventory or merely assists in recording and does not explicitly regulate copyright arrangements for traditional cultural expressions as mandated by Article 38 paragraph (4) of the Copyright Law. This study aims to understand the implications and initiate future arrangements regarding regulating copyrights on traditional cultural expressions. Research on traditional cultural expressions in the context of intellectual property was conducted by Yenny Eta Widyanti (2020) on the Protection of Indonesian Traditional Cultural Expressions in the Yang Sui Generis System, which focuses on efforts to establish special regulations regarding traditional cultural expressions [8]. Furthermore, research conducted by Nuzulia Kumala Sari and Dinda Agnis Mawardah [9] on the Alternative Integrated Cultural Data Collection System for Legal Protection of Traditional Cultural Expressions focuses on the orientation of legal policy ideas regarding an integrated data collection system for traditional culture [9]. Furthermore, Purnama Hadi Kusuma and Kholis Roisah (2022) research on the Protection of Traditional Cultural Expressions and Geographical Indications: An Intellectual Property with Communal Ownership focuses on aspects of strengthening communal ownership in the intellectual property of traditional cultural expressions [10].

Of the three previous studies, research on copyrights for traditional cultural expressions held by the state as stipulated in Article 38 paragraph (4) of the Copyright Law has never been carried out. Thus, this research is original. This study seeks to answer two formulations of the problem, namely: (i) What are the implications of copyright for traditional cultural expressions that have not been regulated in Government Regulations as mandated in Article 38 paragraph (4) of the Copyright Law, and (ii) What is the future orientation of rights regulation on traditional cultural expressions to protect the intellectual property rights of traditional cultural expressions in Indonesia?.

This research is a normative legal research that discusses the unregulated normative provisions in Article 38 paragraph (4) of the Copyright Law which require the establishment of a Government Regulation concerning copyrights for traditional cultural expressions held by the state [11]. The primary legal materials in this study include: the 1945 Constitution of the Republic of Indonesia, the Copyright Law, and the Minister of Law and Human Rights of Communal Intellectual Property. Secondary legal material includes the Draft Law concerning Traditional Knowledge and studies on intellectual property rights over traditional cultural expressions. Non-legal materials include language dictionaries. This study uses a statutory and conceptual approach [11].

2. The copyright implications for traditional cultural expressions in copyright law: What and how?

Intellectual property is various types of intellectual works that originate from human thought and have economic value. Intellectual property emphasizes that humans can only do intellectual work. This is because humans can think and have the logical capacity to produce intellectual work. That confirms that humans can only make intellectual property and cannot be made by creatures other than humans or not due to natural factors [12]. The characteristics of intellectual property that humans can only make emphasize that every human intellectual work is intellectual property, one of which is a cultural expression. Cultural expression as part of culture itself is part of intellectual property because culture manifests human taste, creativity, and intention through specific processes [13]. That makes culture and its expressions an intellectual work with moral and economic values. In this case, the state is essential in providing arrangements and formulating policies to facilitate and preserve the culture that exists and develops in society.

The state’s role in making legal products is likely to provide facilities and guarantees for culture and its expressions. That is also an effort to guarantee the existence of a culture and its expressions. In Indonesia, arrangements regarding guarantees for the existence of culture within the intellectual property framework are contained in the Copyright Law [14]. Although, in general, Copyright Law facilitates every general human intellectual creation, until 2022, Copyright Law is the only law that facilitates cultural expression in the context of intellectual property rights. Attempts to form a different law regarding cultural aspects and their expression in the context of intellectual property rights have been rolled out in the 2010–2014 National Legislation Program by forming the Draft Law concerning Traditional Knowledge [15]. In the Copyright Law, it is emphasized that the name of the law formed is Traditional Knowledge and Traditional Cultural Expressions. Referring to the name of the bill, in the opinion of the author, there are three orientations of the legislators regarding the name of the bill.

First, the legislators specifically (lex specialis) seek to listen to the aspirations of the people regarding the need for separate arrangements for cultural expressions in the context of intellectual. Of course, the intellectual property of cultural expressions is more oriented as a collective cultural work which is undoubtedly different from various other aspects of intellectual property rights, which are more individual [16]. Second, the Draft Law concerning Traditional Knowledge, as its name implies, is oriented towards regulating specific copyrights in knowledge and traditional cultural expressions. The affirmation between knowledge and traditional cultural expressions confirms an affirmation of orientation between traditional knowledge and traditional cultural expressions. Traditional knowledge is more of a system and specific procedures that shape the dimensions of knowledge or people’s beliefs about something [17]. In this context, traditional knowledge is an alternative to modern science, which tends to have a logical-methodological dimension, so it marginalizes traditional knowledge, which has unique characteristics. One of the urgency of the importance of extracting traditional knowledge is the phenomenon of post-modernism, which has revolutionized the paradigm and mindset of modern science, which tends to the Cartesian-Newtonian paradigm, which has an empirical dimension and is value of traditional knowledge is expected to add new treasures as well as efforts to explore and preserve traditional knowledge in Indonesia. In this context, the Draft Law concerning Traditional Knowledge is urgent for the preservation of traditional knowledge [18].

Third, the Draft Law concerning Traditional Knowledge also emphasizes the importance of inventorying and preserving traditional cultural expressions. Expressions of traditional culture can vary, such as traditional ceremonies, and dances, to various traditional arts unique to the community, such as regional songs. Because Indonesia is a multicultural country with several similarities with neighboring countries that tend to be allied, mutual claims on cultural expressions are necessary and often even become a cultural problem between Indonesia and the surrounding countries. That is, for example, mutual claims regarding Batik motifs and fabrics, claims regarding Reog Ponorogo art, as well as several regional songs that occurred between Indonesia and Malaysia. That happens because the countries that claim to each other are allied countries with similarities in culture, customs, and traditions. In this case, the importance of the Draft Law concerning Traditional Knowledge is to facilitate the inventory, determination, and efforts to preserve various cultural expressions in Indonesia so that they are not easily claimed by other countries, especially countries with cultural similarities with Indonesia, such as Malaysia [19] (Table 2).

No	Culture Name	Origin
1.	Pencak Silat (Martial Arts)	Almost all over Indonesia
2.	Rasa Sayange’ Song	Maluku
3.	Pendet Dance	Bali
4.	Reog Ponorogo	Ponorogo, East Java
5.	Rendang	West Sumatra
6.	Tari Piring or Plate Dance	Solok, West Sumatra
7.	Tor-Tor Dance	North Sumatra
8.	Batik	Dominant in Java and Several Other Regions in Indonesia
9.	Kuda Lumping	Ponorogo, East Java
10.	Makanan Lumpia	Semarang, Central Java

Table 2.

List of Indonesian intangible culture claimed by Malaysia.

Referring to the three orientations in the Draft Law concerning Traditional Knowledge, it is relevant to ratifying the Draft Law concerning Traditional Knowledge to become a Law [20]. However, as is commonly known, the formation of laws is not a process that is impervious to non-legal influence [21]. In this case, the formation and ratification of law always require actors who have social-personal solid strength to make a law pass. Even though it is a legal process and procedure, the non-legal dimension also has a strong orientation in ratifying laws [22]. In this context, even though he has been included in the National Legislation Program, the Draft Law concerning Traditional Knowledge still needs to be passed, which remains a separate note in the lack of maximum legal protection for traditional knowledge and expressions of traditional culture. Even so, in fact, regarding legal protection for traditional cultural expressions, especially regarding copyright, in passing, it has also been regulated in Article 38 of the Copyright Law [23].

Article 38, paragraph (1) of the Copyright Law explains copyright on traditional cultural expressions held by the state. Regarding the phrase “held by the state,” this is an exciting thing to study more deeply [24]. This is because the phrase held by the state in elucidating the Copyright Law needs to contain a comprehensive explanation [25]. The term “hold” in Great Indonesian Dictionary means “holding on, attached to, and guided by”. In the context of Article 38, paragraph (1) of the Copyright Law, the term held by the state must be interpreted grammatically based on the state. This means that copyrights on traditional cultural expressions are recorded or registered based on provisions made by the state. That is a systematic interpretation relevant to Article 38, paragraph (4) of the Copyright Law stipulating that it is necessary to establish a government regulation regarding copyrights for traditional cultural expressions held by the state. Even so, until 2022, there is no Government Regulation as mandated by Article 38 paragraph (4) of the Copyright Law. Article 125 of the Copyright Law has emphasized that all implementing regulations mandated by the Copyright Law must be formed by 2 years after the Copyright Law is enacted. The Copyright Law was passed in 2014, which means that it should be by 2016. As mandated by Article 38 paragraph (4) of the Copyright Law, the Government Regulation has been ratified.

In other provisions, the Minister of Law and Human Rights of Communal Intellectual Property has provided arrangements for recording or inventory of communal intellectual property, such as cultural expressions [26]. Of course, because it is not a direct delegated regulation from the Copyright Law, the Communal Intellectual Property Ministerial Regulation has several weaknesses related to copyrights on traditional cultural expressions held by the state as mandated by Article 38 paragraph (4) of the Copyright Law. There are three aspects of weakness in the regulation of copyrights on traditional cultural expressions held by the state in the Minister of Law and Human Rights of Communal Intellectual Property. First, the Minister of Law and Human Rights of Communal Intellectual Property is only limited to an inventory of traditional cultural expressions. In this context, the Minister of Law and Human Rights on Communal Intellectual Property is limited to providing facilities for the community to take an inventory of traditional cultural expressions. Second, the Minister of Law and Human Rights of Communal Intellectual Property is a regulation that is an executive act. In this case, as a regulation, the Minister of Law and Human Rights for Communal Intellectual Property only stipulates the policy, and its substance only implements the law as a regulation above it. Provisions regarding rights and obligations to the substance of legal protection regarding traditional cultural expressions have yet to be explained in the Minister of Law and Human Rights of Communal Intellectual Property.

Third, the Minister of Law and Human Rights of Communal Intellectual Property is not a delegation regulation on Article 38 paragraph (4) of the Copyright Law. That is simultaneously confirms that the Minister of Law and Human Rights of Communal Intellectual Property certainly cannot substantively and optimally regulate further provisions as stipulated in Article 38 paragraph (4) of the Copyright Law. Based on the weaknesses of the Minister of Law and Human Rights of the Communal Intellectual Property above, this has implications for the regulation of copyrights on traditional cultural expressions held by the state, including (i) regulation and legal protection regarding the regulation of copyrights on traditional cultural expressions held by the state are not yet optimal because the Government Regulation has not yet been formed as mandated by Article 38 paragraph (4) of the Copyright Law, (ii) the meaning “held by the state” in Article 38 paragraph (4) of the Copyright Law still creates legal obscurity because the Copyright Law does not provide further explanation regarding the meaning of “held by the state,” and (iii) arrangements regarding legal remedies for potential disputes related to copyrights on traditional cultural expressions held by the state. The potential for such disputes can include disputes between regions that claim each other over a culture, including disputes between countries that claim culture, especially in countries belonging to the same family.

3. The Ius Constituendum regarding copyrights of traditional cultural expressions: an orientation

Although, on the one hand, the Minister of Law and Human Rights for Communal Intellectual Property has provided a brief and simple arrangement, however, this clearly has not met the demands and expectations regarding the regulation of copyrights on traditional cultural expressions held by the state in a comprehensive manner. This is because the Minister of Law and Human Rights of Communal Intellectual Property is not a delegation regulation on the provisions in Article 38 paragraph (4) of the Copyright Law. In this case, Article 38 paragraph (4) of the Copyright Law mandates the establishment of a Government Regulation. Constitutionally, in the 1945 Constitution of the Republic of Indonesia, as in Article 5 paragraph (2) it is emphasized that Government Regulations are legal products whose orientation is to implement the provisions of the Law [27]. According to Ni’matul Huda, the provisions in this Government Regulation emphasize that a Government Regulation in its preamble must include a Law as the basis for forming a Government Regulation [28]. The function of government regulations is to implement laws, so it can be concluded that without government regulations, laws are complicated to implement or implement in social-community realities [29].

Article 38, paragraph (4) of the Copyright Law actually contains an order to form delegation regulations in the form of forming government regulations. Delegation regulations, according to Moh. Fadli is actually regulations that are in the realm of executive authority to regulate further provisions regulated by laws originating from legislative authority [30]. Because it is an order of authority from the legislative power, the formulation of delegation regulations must be limited and clear to minimize the existence of blank delegation regulations [31]. Delegation regulations that are unclear and do not provide clear boundaries can potentially expand and widen the provisions of the Act, which can be regulated at will by the executive power [32]. Therefore, the formulation of delegation regulations must be firm, directed, and clear.

Referring to the formulation in Article 38 paragraph (4) of the Copyright Law, in the context of the formulation of delegation regulations, at least the author believes of two aspects. First, in general, the provisions of Article 38 paragraph (4) of the Copyright Law are already relevant to the formulation of delegation regulations that at least explain the types of regulations and the substance of the regulation [33]. The type of regulation ordered by Article 38 paragraph (4) of the Copyright Law is a Government Regulation, while the substance of the regulation is related to copyrights on traditional cultural expressions held by the state. Fundamentally, the actual formulation of Article 38 paragraph (4) of the Copyright Law is in line with the introductory provisions for drafting delegation regulations. Second, the potential for arbitrariness in delegation regulations in the form of Government Regulations regarding copyrights on traditional cultural expressions held by the state has the potential to occur in the formulation of Government Regulations because of the ambiguity in the meaning “held by the state.” That is because the phrase “held by the state” can lead to multiple interpretations, especially with regard to whether the state actually holds the intention. Is held by the state the same as owned by the state?, does the state facilitate it, or does it have another meaning. In this context, it is appropriate that before a Government Regulation is issued regarding copyrights to traditional cultural expressions held by the state, it is necessary to clarify the meaning held by the state in the formulation of the Copyright Law [34]. This is to provide guarantees of legal certainty for Government Regulations, which are orders from Article 38 paragraph (4) of the Copyright Law.

Legal ambiguity in interpreting the phrase “held by the state” can have a big impact, for example, whether it is permissible for the regions to take part in or make claims on the rights of traditional cultural expression. This is, for example, Reog Ponorogo, which has a regional identity pattern. Is it permissible for the regions to also hold intellectual property rights regarding traditional cultural expressions [35]. This legal issue occurred because there was no authentic interpretation in the Copyright Law regarding the authentic meaning of the phrase “held by the state.” In addition, there is also no Government Regulation which is an order from Article 38 paragraph (4) of the Copyright Law so that further provisions regarding “held by the state” in any form and mechanism. That confirms that the absence of a Government Regulation, an order from Article 38 paragraph (4) of the Copyright Law, has created legal obscurity. In jurisprudence, legal obscurity is a “disease” of written Law or positive Law [36]. Text-based positive Law sometimes cannot holistically and comprehensively explain a particular term [37]. This makes positive Law full of ambiguities and requires interpretation to solve it [38].

In the case that occurred in Article 38 paragraph (4) of the Copyright Law, the interpretation of the meaning “held by the state” alone is not enough. This happened because the Law’s order to form a Government Regulation still needs to be implemented. According to the author’s opinion, the orientation that can be carried out in overcoming legal problems, primarily related to the absence of a Government Regulation as mandated in Article 38 paragraph (4) of the Copyright Law, namely: (i) establishing a Government Regulation concerning copyright on traditional cultural expressions held by state including providing an authentic interpretation of the meaning of “held by the state” along with its criteria and provisions, (ii) the establishment of a Government Regulation as mandated in Article 38 paragraph (4) of the Copyright Law can be carried out by first harmonizing it with various laws and regulations such as the Law Culture and the Minister of Law and Human Rights of Communal Intellectual Property, as well as the urgency to include the Draft Law concerning Traditional Knowledge to be included in the National Legislation Program and ratified as a law so that the protection and guarantee of legal certainty for the expression of traditional culture and traditional knowledge can be optimally enforced.

4. Conclusions

The implications for regulation of copyrights for traditional cultural expressions held by the state are: regulation and legal protection regarding the regulation of copyrights for traditional cultural expressions held by the state is not yet optimal because a Government Regulation has not been formed as mandated by Article 38 paragraph (4) of the Copyright Law, the meaning of “held by the state” in Article 38 paragraph (4) of the Copyright Law still creates legal obscurity. After all, the Copyright Law does not provide further explanation regarding the meaning of “held by the state” and arrangements regarding legal remedies for potential disputes related to rights copyright over traditional cultural expressions held by the state. The potential for such disputes can include disputes between regions that claim each other over a culture, including disputes between countries that claim culture, especially in countries belonging to the same family. Orientations that can be carried out in overcoming legal issues, especially related to the absence of Government Regulations as mandated in Article 38 paragraph (4) of the Copyright Law, namely establishing Government Regulations regarding copyright on traditional cultural expressions held by the state, including providing an authentic interpretation of the meaning of “held by the state” along with the criteria and provisions and the formation of Government Regulations as mandated in Article 38 paragraph (4) of the Copyright Law can be carried out by first harmonizing various laws and regulations such as the Culture Law and the Minister of Law and Human Rights of Communal Intellectual Property. In order to be more optimal, in future arrangements there is an urgency to include the Draft Law concerning Traditional Knowledge to be included in the National Legislation Program and passed into law so that the protection and guarantee of legal certainty for the expression of traditional culture and traditional knowledge can be optimally enforced.