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PATEN DI ERA PANDEMI COVID 19

Author: Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

Professor of Faculty of Law, Universitas Islam Indonesia, Departement of Private Law

Tanpa terasa waktu penyebaran virus covid 19 sudah berjalan hampir 2 tahun lebih di bumi pertiwi. Dalam kurun waktu ini angka kematian akibat virus covid 19 di Indonesia terus bertambah. Data terakhir dari covid19.go.id per 04 Agustus 2021 angka positif sebanyak 4.123.617 orang, angka sembuh sebanyak 3.827.449 orang, dan angka kematian sebanyak 135.469. Untuk dapat menekan persoalan ini, maka pemerintah dan masyarakat terus berupaya mengambil langkah-langkah preventif agar penyebaran virus covid 19 dapat dikendalikan dan angka kematian dapat ditekan.

Sejalan dengan hal ini, tidak dapat dipungkiri peran ilmu pengetahuan dan teknologi tidak dapat dielakkan dari penanganan virus covid 19. Adapun peran ilmu pengetahuan dan teknologi ini dibuktikan dengan banyaknya berbagai inovasi di bidang teknologi kesehatan yang memiliki kegunaan dalam mencegah penyebaran virus covid 19. Dari mulai ditemukannya vaksin covid 19 hingga alat kesehatan seperti masker dan sanitizer pun tidak luput dari sentuhan inovasi di bidang ilmu pengetahuan dan teknologi, khususnya inovasi di bidang teknologi kesehatan.

Dengan adanya berbagai inovasi di bidang teknologi kesehatan ini, ada dua pertanyaan mendasar yang menarik untuk dikemukakan dalam konteks ini, yaitu; (1). apakah berbagai inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 layak untuk dimintakan paten di era pandemi covid 19 ini?; dan (2). apakah dengan dimintakannya paten atas berbagai inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 tidak akan menghambat upaya pemerintah dan masyarakat dalam melakukan pencegahan virus covid 19?

Pro Kontra Paten di Era Pandemi Covid 19
Sebagaimana diketahui, paten secara konseptual dipahami sebagai hak hukum. Oleh karena, paten merupakan hak hukum, maka paten mendasarkan diri pada konsep hak. Hak di dalam hukum merupakan sesuatu yang dapat dituntut pemenuhannya, tetapi apabila hak tersebut tidak dituntut, maka hak tersebut pemenuhannya dilepaskan. Selanjutnya, paten sebagai hak hukum juga merupakan hak eksklusif yang diberikan atas invensi di bidang teknologi (baca: inovasi di bidang teknologi). Paten sebagai hak eksklusif yang diberikan atas invensi di bidang teknologi mengadung arti dalam tiga hal, yaitu (1). hak untuk menggunakan sendiri hak tersebut yang melekat pada invensi di bidang teknologi; (2). Hak untuk mengizinkan atau mengalihkan hak tersebut yang melekat pada invensi di bidang teknologi kepada orang lain; dan (3). Hak untuk melarang orang lain menggunakan hak tersebut yang melekat pada invensi di bidang teknologi. Atas dasar hal ini, maka penggunaan hak eksklusif atas invensi di bidang teknologi ini harus benar-benar sejalan dengan pengakuan dan penghormatan dari si pemilik hak (baca: pemegang paten) tersebut serta peraturan perundang-undangan dalam bidang paten yang berlaku.

Di era pandemi covid 19, realitas masyarakat dalam mensikapi paten ini telah melahirkan pro dan kontra. Dari kelompok masyarakat yang pro berpandangan bahwa paten di era pandemi covid 19 merupakan hal penting dalam konteks inovasi di bidang teknologi kesehatan saat ini. Adapun alasannya, hal ini dapat mencegah timbulnya produk-produk palsu dari pelanggaran paten. Sementara itu dari kelompok masyarakat yang kontra berpandangan bahwa paten di era pandemi covid 19 merupakan hal yang tidak diperlukan dalam konteks inovasi di bidang teknologi kesehatan. Adapun alasannya, hal ini dikhawatirkan akan menghambat bagi upaya memanfaatkan hasil inovasi di bidang teknologi kesehatan untuk upaya pencegahan virus covid 19.

Paten dan Pencegahan Virus Covid 19
Dengan banyak inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 dihasilkan, maka pada dasarnya inovasi di bidang teknologi kesehatan ini dapat saja dimintakan patennya kepada negara atau dapat juga dilepaskan untuk tidak dimintakan patennya kepada negara. Dua tindakan ini dibenarkan, karena UU No. 13 Tahun 2016 tentang Paten (selanjutnya disebut UU Paten) pada kenyataannya memang tidak pernah mengatur bahwa meminta paten kepada negara merupakan suatu kewajiban hukum bagi inovator, tetapi justru didudukkan sebagai suatu hak bagi inovator.

Ketika inovasi di bidang teknologi kesehatan dimintakan patennya kepada negara oleh inovator, maka inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 harusnya dapat diberikan paten–apabila memenuhi persyaratan yang ditetapkan dalam UU Paten. Pada saat paten itu diberikan oleh negara, maka pada saat itulah inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 memuat hak eksklusif. Hal ini berlaku sebaliknya apabila inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 tidak dimintakan patennya kepada negara oleh inovator, maka inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 tidak akan memuat hak eksklusif.

Dalam konteks melekatnya paten sebagai hak eksklusif pada inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19, maka hal ini tidaklah akan menghambat bagi upaya pemanfaatan inovasi tersebut guna mencegah virus covid 19. Adapun argumentasinya ada tiga, yaitu: Pertama, dengan paten yang melekat pada inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19, maka bisa saja pemegang paten tersebut memberikan izin kepada beberapa perusahaan teknologi kesehatan untuk memproduksi inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 tanpa harus berlaku komersial, semisal melepaskan hak royalty dari paten atas inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19. Hal ini tentunya, akan terjadi apabila si pemegang paten benar-benar memiliki rasa kemanusiaan yang tinggi atas pandemi covid 19. Hal ini telah terjadi terkait penggunaan paten vaksin AstraZeneca, di mana pemegang patennya melepaskan hak royalti.

Kedua, apabila si pemegang paten tidak memiliki rasa kemanusiaan yang tinggi atas pandemi covid 19 dan cenderung ingin mengambil keuntungan ekonomi yang tinggi dari situasi pandemi covid 19, maka pemanfaatan paten ini masih akan dapat dilakukan dengan cara menerapkan kelonggaran (fleksibilitas) yang tertuang di dalam UU Paten di antaranya melalui lisensi wajib dan pelaksanaan paten oleh pemerintah. Hal ini biasanya dilakukan karena adanya kepentingan masyarakat yang sangat mendesak atau penggunaan paten oleh pemegangnya yang dapat merugikan kepentingan masyarakat secara luas. Sehingga dalam konteks ini, negara ikut campur tangan melalui UU Paten terkait dengan pemanfaatan paten di mana kepentingan masyarakat menjadi hal yang harus diutamakan daripada kepentingan pemegang paten itu sendiri. Ketiga, dengan adanya paten sebagai hak eksklusif atas inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19, maka hal ini, di satu sisi dapat menjamin hadirnya produk asli yang akan efektif dalam mencegah penyebaran virus covid 19; dan di sisi lain dapat meminimalisir penyebaran produk-produk palsu yang bisa jadi justru akan memperburuk penyebaran virus covid 19.

Berdasarkan pada uraian di atas, maka dapat dikemukakan bahwa ketika ada inovator menghasilkan inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 dan selanjutnya inovator tersebut mendaftarkan paten kepada negara, dan patennya diperoleh, maka dapat dipastikan paten yang diperoleh tersebut tidaklah akan menghambat upaya pemerintah maupun masyarakat dalam melakukan pencegahan virus covid-19. Bahkan, dengan diperolehnya paten atas inovasi di bidang teknologi kesehatan yang berguna untuk mencegah virus covid 19 justru dapat dijadikan sarana efektif guna melakukan upaya pencegahan virus covid 19 di bumi pertiwi ini. Wallahu’alam bis Shawab.

Tulisan ini telah dimuat dalam narasidesa.com, 09 September 2021.

 

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Anak Yatim Piatu Korban Pandemi

Author: Umar Haris Sanjaya, S.H., M.H.

Lecturer in Faculty of Law, Universitas Islam Indonesia, Departement of Private Law

 

Berbagai media pemerhati anak ramai memberitakan kondisi anak kehilangan keluarga dengan menjadi yatim atau piatu atau yatim piatu akibat meninggalnya orang tua karena Covid. Di yogyakarta sendiri kasus anak kehilangan orang tua akibat Covid terdapat 142 anak (info@kemsos), belum termasuk terhadap ibu hamil yang meninggal akibat covid. Kondisi ini tentunya belum akan berhenti mengingat situasi pendemi yang belum berakhir setidaknya harapan itu ada setelah seluruh stake holder sudah mendapatkan vaksinasi dari pemerintah.

Anak yang kehilangan kedua orang tuanya ataupun salah satu orangtuanya itu menjadi tanggung jawab siapa dalam pemenuhan kehidupan sehari-hari ? secara hukum seorang anak manusia terikat oleh kerabat kedua orangtuanya, hal ini dikenal dengan istilah hukum kekerabatan. Sehingga kerabat si anak secara sadar turut terikat untuk membantu mengurus keluarga kerabatnya tersebut yang kehilangan orang tuanya. Untuk kerabat yang bersedia mengasuh maka dapat dimintakan penetapan perwalian terhadap anak yatim piatu sehingga keberlangsungan hidup si anak dapat berjalan dengan baik dalam perwalian kerabat dari orangtuanya. Bila seorang anak hanya ditinggalkan salah satu orang tuanya, maka tanggung jawab pemenuhan kebutuhan akan diberikan kepada orang tua yang masih hidup baik ayah atau ibunya. Apakah ada peran kerabat dari kedua orang tua si anak ? kerabat orang tua dapat turut berperan dengan memberikan perhatian kepada si anak, terutama kerabat orang tua yang meninggal. Masyarakat yang mengetahui itupun berhak untuk melaporkan pihak yang berwajib bahwa anak yang kehilangan kedua orang tua masih memiliki kerabat, sehingga anak akan dikembalikan kepada kerabat tersebut.

Di Indonesia menganut tiga (3) sistem kekerabataan dalam aliran keluarga termasuk pula tanggung jawabnya seperti : patrilineal, matrilineal, dan parental. Terhadap sistem patrilineal dan matrilineal tanggung jawab ini kembali kepada sistem kekerabatan yang dianut, maka tanggung jawabnya bisa kepada salah satu kerabat orang tua saja baik ayahnya saja atau ibunya saja. Untuk sistem parental, maka tanggung jawab ini akan jatuh kepada masih-masing kerabat dari kedua orang tua sehingga salah satu keluarga yang menganut sistem parental, maka kerabat orang tua juga terikat untuk mengasuh dan membesarkan anak. Untuk itu, peran kerabat orang tua dapat dimaksimalkan dalam mengasuh anak yang kehilangan orangtuanya. Sistem parental ini merupakan sistem kekerabatan yang sudah mulai digunakan oleh masyarakat Indonesia dimana garis tanggung jawab dapat berasal dari kerabat kedua orang tua baik secara hak dan tanggung jawab. Upaya pemerintah bersama masyarakat ditingkat RT dan RW dapat mendata dan mencari tahu kerabat-kerabat orang tua dari anak yang yatim piatu untuk ikut berperan tumbuh kembang anak.

Kerabat dari orang tua tentu tidak dimintai tanggung jawab penuh dengan melihat latar belakang ekonominya. Setidaknya mereka turut berperan dalam pertanggungan jawab anak dalam konteks hubungan kekerabatan, jangan sampai anak kehilangan orang tua itu merasa sendiri dan akhirnya menjadi sebatang kara. Kerabat dari ayah sang anak bersama-sama kerabat dari ibu sang anak diharapkan turut berperan untuk ikut mensejahterakan anak, hubungan keterikatan inilah yang dimaksud dengan hukum kekerabatan dimana seseorang terikat akan tanggung jawab dengan orang lain karena ia terikat hubungan hukum kekerabatan. Tidak mungkin seseorang yang tidak ada hubungan kekerabatan ikut bertanggung jawab terhadap kesejahteraan anak, melainkan dengan kepastian hubungan kekerabatan maka mereka terikat. Ini merupakan konsep dari hubungan keluarga. Jangan sampai anak yang kehilangan orang tua justru ditinggalkan untuk hidup sendiri dan mencari kesejahteraannnya sendiri.

Salah satu peran yang dapat dilakukan oleh pemerintah dan masyarakat adalah membantu untuk menghubungkan anak yang kehilangan kedua orang tua dengan kerabat yang masih dimiliki si anak, menginventarisir anak-anak yatim piatu agar dapat diasuh oleh kerabat terdekat terlebih dahulu karena memang secara hukum, kerabat adalah pihak yang paling berhak mengasuh anak dari kerabatnya. Apabila itu tidak memungkinkan maka pemerintah dapat melakukan melalui dinas sosial untuk mengasuh anak yang telah ditelantarkan karena tidak ada kerabat yang hendak mengasuh.

This article have been published in rubric OPINI of Kedaulatan Rakyat Newspaper, 21 August 2021.

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Patent Law and Transfer of Technology

The Indonesian government has implemented the replacement of Law No. 14 of 2001 concerning Patent to become Law no. 13 of 2016 on Patents since one year ago. The substitution of this law is an effort of a preference approach to the National interests of Indonesia without violating international principles. From this replacement of this law, the Law no. 13 of 2016 focus on the regulation in a way how Indonesia can be more real in implementing technology transfer activities among parties within the country including foreign parties and domestic and vice versa. With the transfer of technology, it is expected thatthe acceleration of the nation’s competitiveness can be realized soon.

 

Transfer of Technology Policy in Indonesia

 

Indonesia is a country that currently has not optimally encouraged the development of technology towards the improvement of the mastery and utilization of technology. This in turn has an impact on Indonesia’s weak competitiveness. This can be seen from the 2017 Global Innovation Index report. Indonesia’s innovation ranking is in position 87 of 127 countries. In ASEAN region, Indonesia’s position is far below Malaysia which is in position 37 and Vietnam at rank 47. Based on Global Competitiveness Index data from World Economic Forum 2016-2017, Indonesia ranked 41st from 138 countries with pillar of innovation ranked 31, in subpillar innovation capacity Indonesia ranked 32nd, while in subpillar of high-tech government spending Indonesia ranked 12th, and the Indonesia rank for international patent subpillar was 99th.

 

From the data above, shows the development of Indonesian technology has not shown the encouraging condition. As for many causes, for instanse, the matter on transfer of technology policy in Indonesia has not real and progressive. Some policies have been used as a legal basis to encourage transfer of technology, such as; the Law no. 25 Year 2007 regarding Investment and the Law no. 18 of 2002 on National System of Research, Development and Application of Science and Technology. In Article 10 paragraph (4) of Law no. 25 Year 2007 states: “Investment companies employing foreign workers are required to conduct training and transfer of technology to Indonesian citizens in accordance with the provisions of applicable legislation.” Furthermore, in Article 16 paragraph (1) of Law no. 18 Year 2002 states: Universities and R & D institutions shall seek the transfer of intellectual property technology and the results of research and development activities, fully or partially funded by the government and / or local governments to enterprises, governments or the public to the extent not incompatible with public order and regulation.”

 

Looking at the two policies mentioned above, the government actually has a “political will” to require the implementation of transfer of technology in order to encourage the parties to master the technology either from abroad or domestic. However, those transfer of technology policiesapparantly have two weaknesses; First, the notion of technology in transfer of technology tends to have unclear meaning and seems to cover broad meaning. Therefore, the meaning of technology can be interpreted obsolete technology, current or certain period of time. Supposed the meaning of technology is interpreted as obsolete technology, thusit will be very detrimental to the National interests of the Indonesian. The Indonesian nation, therefore, will not be able to realize its competitiveness through the role of technology; and Secondly, although the transfer of technology policiescover the legal obligation, it turns out that the legal obligation is not followed by sanction or it can be said as “toothless tiger”. When the parties are expected to do transfer technology, but the fact they ignore it, it seems the policies have lack of legal enforcement. This is likely to create “not-serious condition” in implementation of transfer of technology policies for the parties who mastered the technology in Indonesia.

 

Patent Law: The Breakthrough for Transfer of Technology Policy

Recognizing that transfer of technology policy in Indonesia has not been able to encourage the process of control and use of technology, therefore the government of Indonesia took another breakthroughin 2016, by accommodatingthe transfer of technology policy in Law no. 13 of 2016 on Patents. The provision of Article 20 and Article 132 of Law no. 13 Year 2016 are a proof of a very progressive breakthrough in driving the realization process of transfer of technology in Indonesia. Article 20 states: (1). “The patent holder is obligated to manufacture the product or use the process in Indonesia.” (2). Making the product or using the process referred to in paragraph (1) shall support the transfer of technology, the absorption of investment and / or the provision of employment.”Meanwhile, Article 132 paragraph (1) letter e and (4) of Law no. 13 of 2016 states: “(1). The abolishment of a patent based on a court decision as referred to in Article 130 letter b is performed if: … e. the patent holder violates the provisions referred to in Article 20.” While the paragraph (4) rules that The lawsuit for deletion as referred to in paragraph (1) letter d and e is filed by a prosecutor or other party representing the national interest to the patent holder or licensee shall be obliged to the Commercial Court.

On the basis of the provisions of Article 20 and Article 132, the commitment and the government’s willingness for the transfer of technology in Indonesia has been expressed very strong and progressive. Perhaps it can be seen from the substance of the articles that link patent provisions and transfer of technology, which the articles do not encourage the obligation of transfer of technology, but the impulse is also accompanied by the threat of sanctions to the parties who have no political will to do transfer of technology. The sanction given is not half-hearted which is the removal of the patent itself as a form of control over the exclusivity of the invention held by the patent holder.

 

Idealization of Government Attitudes

The presence of government breakthrough to push transfer of technology through adoption of its policy in Article 20 and Article 132 Law No. 13 Year 2016 apparently has caused a pro and contra reaction. The reaction have been counterproductive especially from the patent holders from abroad who in fact were the investor. This counter-foreign attitude has not only been done by investors but also involved their leaders. The reason was that the provisions of Article 20 and Article 132 of Law no. 13 Year 2016 is considered as an obstacle to the investment they have, are and will do.

With the persistence of foreign pressure to the government concerning the provisions of Article 20 and Article 132 of Law no. 13 Year 2016, the government seems to experience “chaos” commitment. This disorder can be seen that the government has responded the foreign pressure at the beginning by planning the drafting of Government Regulation (RPP). However, along with the development of time, the the plan has been shifted into a plan to amend Article 20 and Article 132 Law no. 13 of 2016.

The government attitude as explained above seems to be very apprehensive. The the government indeed should have independence in policy making, nevertheless it is shaken by the insistence of foreign parties because it is considered to inhibit their investment. Supposedly, if the government is objective, then before making amendments to Article 20 and Article 132, it is appropriate to do two things; First, the government must have objective and valid data related to transfer of technology in Indonesia. This data may be requested by the government to parties who have been considered to master of the technology, especially from foreign parties; Secondly, the government should be able to request a transfer of technology from technology rulers who can promote the competitiveness of the Indonesian nation.

 

                                              Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

 

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Intermediary Institute for Intellectual Property Rights and Creative Economy

The creative economy is become the government’s concern. This is happen because several reasons, first, the creative economy is expected to be able to absorb labor. In 2007 employment reached 5.4 million workers with a participation rate of 5.8%, second, the creative economy is expected to be able to encourage the development of economic. The average contribution GDP (Gross Product Domestic) of Creative Industries in 2002-2006 based on constant prices on 2000 was IDR 104.6 Trillion Rupiah, which is 6.3% of the total value of National GDP, and thirdly, now the government has also formed a special ministry called the Ministry of Finance. tourism and creative economy.

However, the positive implications of developing the creative economy are not yet optimal. This is due to several problems encountered. One of them relates to the issue of protecting intellectual property rights (IPR). The question is, why the problem of protecting intellectual property rights for the development of the creative economy and how to overcome these problems, so that IPR protection can be realized?

IPR Protection in Creative Economy Practices

Regarding the IPR protection in the practice of the creative economy, there are three realities that can be found. These realities are 1) the reality of IPR protection related to the development of creative and innovative products; 2). The reality of IPR protection related to the IPR registration system, and 3). The reality of IPR protection is related to the enforcement of IPR law.

The reality of IPR protection related to the development of creative and innovative products. A product that can be given IPR protection, then the product must be creative and innovative. A product can be said as creative and innovative in the IPR perspective, it should be able to meet the criteria of each IPR regime. For copyright, a product is said to be creative and innovative if it meets the criteria for originality, fixation and creativity, for a patent, a product is said to be creative and innovative if the product meets the criteria for novelty, inventive steps and can be applied in industrial activities, for industrial design, the criteria are must be new and not the same as previous disclosures, and for trade secrets the criteria that must be met are efforts to keep information of economic value from being known to the public. Now, by looking at these criteria, it is clear that the product requested by IPR should be creative and innovative. But unfortunately, at this time there are still creative economy actors who do not pay attention to these criteria. As a result, existing products are not new and even are imitations/pirates of those that already exist.

The reality of IPR protection related to the IPR registration system is in the form of a registration procedure that is considered complicated, expensive and time-consuming which tends to be uncertain, so that it is not registered. This of course weakens legal protection and has implications for the non-protection of creative economy products. Another reality of IPR protection relates to the enforcement of IPR law. Up to now, IPR law enforcement is still considered selective and lacks proper and professional handling. The lack of law enforcement officers who have a good understanding of IPR is also a real reality in the enforcement of IPR law. As a result, creative economy products that have registered IPR cannot be protected immediately, even though the legal process that should have been carried out has been carried out.

IPR Intermediary Institution

Observing the reality regarding lack of IPR protection for creative economy products, a solution should be sought. Based on author’s opinion, the solution that can be taken at this time in order to increase the effectiveness of IPR protection for creative economy products is through the establishment of an IPR intermediary institution between creative economy actors and the Directorate General of Intellectual Property Rights of the Ministry of Law and Human Rights of the Republic of Indonesia, where this institution is independent and exists. under the District Head and able to work professionally. This institution also has a function as an institution of assistance, facilitation and advocacy.

The function of this institution as an assistance institution is related to providing assistance to creative economy actors to constantly search for information on plans for making products. Assistance will be carried out by professional technical personnel in their field. The information search itself is carried out to answer whether the product to be made is original or new? Or vice versa. If this can be done, then the opportunity for creative economy products to be protected will be great. In line with this, this institution will also provide understanding to creative economy actors not to divulge information related to their newly made products, if legal protection has not been carried out. With this function, IPR protection related to creative and innovative products can be carried out from the beginning before the product is registered.

Another function of this institution as a facilitation institution, this is related to the IPR registration process. As a facilitation institution for IPR registration, certainly there will be available technical personnel for IPR management who are truly professional. These technical personnel are from the fields of engineering, arts, information technology and law/IPR consultants. With the availability of technical personnel like this, the services in the management of IPR will be carried out effectively. Not only  at the filing stage, such as; making patent drafting, design drafting, making legal documents (statements, filling out forms) but also the registration process at the Directorate General of Intellectual Property Rights, Ministry of Law and Human Rights, such as filing for registration, filing an opposition or filing an appeal to the trademark appeal commission. Operational costs for IPR management can also be regulated in such a way by local governments, so that the possibility of unreasonable IPR processing costs can be avoided. With this professional handling of IPR management and reasonable operational costs, IPR protection through IPR registration can be implemented.

The other function of this institution is as an advocacy agency. For supporting this institution to be able to play its function as an advocacy agency, this institution will also have advocates/lawyer who not only understand the procedures for legal practice in general, but also understand the procedures for practicing IPR law. Through this institution that has an advocacy function and is supported by professional advocates, if there are creative economic products that are violated by their IPR, then advocacy can be carried out properly and hopefully the protection of IPR can be realized.

In the end, it can be understood that IPR protection actually has a broad meaning. Actually, IPR protection is not only done through registration, but it should have started from the beginning of making creative and innovative products until they are marketed. With the establishment of an IPR intermediary institution, it is hoped that broad IPR protection can be realized, so that the creative economy can develop properly.

Wallahu’alam bis Shawab.

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Executive Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

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IPR Policy for Creative City

 

Lot of hope are raised for the sector of creative economy in encouraging economic growth and prospering society at this time. Moreover, when the crisis storm hit several countries such as Europe and the United States. Expectations for the increasing role of the creative economy sector, certainly it is not enough just a one-sided action from creative economic actors, but this must also be supported by real policies and implementation from the government for the interests of the creative economy. One of the policies and implementations that are currently very important and strategic in encouraging the role of the creative economy in economic growth and community welfare is strengthening policies and the application of creative economic intellectual property rights in creative cities (Creative City).

 

IPR Policy

Intellectual Property Rights (IPR) which have been considered from a legal perspective as rights, in an economic perspective IPR can be defined as assets, especially intangible assets. Based on legal perspective of IPR, then the development of policy and implementation of IPRs carried out by the Central Government through the Directorate General of Intellectual Property Rights at the Ministry of Law and Human Rights, is very logical. However, when IPR is interpreted as an intangible asset, then the development of IPR policies by the Central Government alone is not enough. IPR policy support made by Creative City is another part that must be strengthened.

In practice, IPR policies developed in the context of the creative economy as intangible assets are still being carried out centrally by the central government. IPR policy seems to be only a central matter, while Creative City has no business in this area. As a result, various IPR problems arise in reality. Some of the IPR issues that can be identified are; First, the weakness of Creative City in educating IPR. There is often overlap in the delivery of IPR materials by government agencies, both central and Creative City, which is a clear example; Second, the lack of ownership  documentation of IPR assets by Creative City; Third, the weakness of technical staff of Creative City in facilitating the management of intellectual property rights originating from creative economy actors; Fourth, the absence of Creative City’s real assistance in resolving cases of IPR violations experienced by creative economy actors; and Fifth, the lack of IPR assets that are promoted and commercialized with the help of the active role of Creative City.

Based on the various problems above, a further consequence is the weak role of the creative economy to encourage economic growth and improve the welfare of the people in Creative City.

 

IPR Policy for Creative City

After seeing the consequences of centralized IPR policies by the Central and causing problems in practice, it is time for IPR policies to be carried out by synergizing IPR policies at the Center and Creative City. Specifically, in terms of IPR policies in Creative City, it should be oriented within the framework of managing IPR assets from creative economy products in the context of increasing economic growth and community welfare in creative cities not on granting rights.

The opportunities to implement IPR asset management policies for creative economy products in Creative City as referred to above are actually legally possible. This can be seen at least in Law no. 32 of 2004 concerning Regional Government. According to the provisions of Law no. 32/2004 it is stated that in implementing autonomy, regions have the right to manage regional assets. Then in the law it is also stated that in implementing autonomy, regions have the obligation to improve the quality of people’s lives; and develop productive resources in the region.

In other reason besides of legal reasons for making IPR asset management policies in Creative City, sociologically the need for IPR asset management policies cannot be avoided. Until today, the reality is that the creative economy products in Creative City are generally felt to have not accommodated the need for IPR protection and benefit from IPR itself.

There are three things that should become a concern of the IPR asset management policy from creative economy products, consist of; First, IPR asset management policies must be able to encourage the process of creating innovative creative economy products, Second, IPR asset management policies made must be able to facilitate documentation, registration and advocacy on IPR assets from creative economy products, so that IPR assets from economic products creative economy can be protected, and Third, the policy for managing IPR assets must be able to encourage promotion and commercialization of IPR assets from creative economy products.

In other side, the IPR management policy which includes the three things above, these three things should also be synergized each other, thus forming a system for managing IPR assets from the creative economy at Creative City. In the end, through the making of IPR asset management policies from creative economy products in Creative City, efforts to utilize IPR assets as a strategy to increase economic growth and community welfare can be realized.

 

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

 

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Indonesian and Software Illegal

Based on research by the Business Software Alliance (BSA) and Ipsos Public Affairs, Indonesia is ranked seventh in the use of illegal software from 32 countries in the world. This reality is considered by some to be not surprising (Indonesia is imaged as a country that has many copyright infringement). However, it is realized base on this information, it shows that the Indonesian society in terms of the awareness  regarding copyright protection are still very weak. Then, what should the government due to solved this problem?

Root of the problem

Based on seventh ranked of Indonesia position in the use of illegal software showing that the root cause of copyright infringement has not been resolved. What exactly is the root of the problem, so that software copyright infringement in Indonesia is still high?

Actually, if we want to examine in depth the root cause of the high level of copyright infringement on this software, it is based on the the lack of a good culture of recognizing, respecting and protecting copyrights. Based on the root of this problem, if it is derived, it can be identified several derivative problems that cause a good copyright culture has not yet been formed, consist of; First, the ineffectiveness of IPR education; Second, there is an ineffective copyright policy; Second, limited human resources and weak professionalism of law enforcement officers in dealing with software copyright infringement; and Third, there are still sporadic and selective actions in the enforcement of copyright law.

The practice of IPR education is not effective, it can be evidenced by the existence of IPR education which tends to be sectoral and partial, and does not hit the target. In the context of formal education, IPR education seems to still be focused on the legal field, while other fields have not been optimized. On the other hand, in the context of informal education, IPR education is more likely to be carried out using a copy-paste system and the delivery of IPR materials tends to be repeated.

Furthermore, in the context of the second root causes, nowadays the government in an effort to minimize IPR infringement (copyright) has made a policy in the form of forming a National Team for Combating IPR Violations. This team was formed based on Presidential Decree Number. 4 of 2006. However, from the membership of the team, it can be seen that the members involved are mostly state officials who incidentally do not have time to carry out team duties. As a result, in its implementation, this policy seems ineffective.

The weakness of law enforcement officers in the field of intellectual property rights is the next derivative problem from the lack of a good copyright culture. In fact, it was found that law enforcement officers who handled cases of IPR infringement were unable to distinguish between the cases being categorized as copyright or patent infringement.

This derivative problem is further exacerbated by the presence of other derivative problems in the form of sporadic actions and selective slashing in the enforcement of copyright law. As a result, there is a perception in society that the government especially law enforcers doesn’t have any seriousness in enforcing copyright law.

Based on this issues, so that at this time Indonesia has not been able to reduce drastically against acts of software copyright infringement and must remain in a high position for software copyright infringement.

Attitude and Effort

Based on the awareness of the root causes which is still existing and high level of software copyright infringement, so that the government should take responsive and more serious actions. The real form must be shown by real efforts to reduce the level of software copyright infringement. Some of the efforts that the government can take for this are:

First, review and improve the education system and awareness of copyright (IPR) to the public. Copyright (HKI) which was originally only given to the law faculty, now is the time to give it to other faculties. Even if it is possible, copyright (IPR) can also be granted to lower levels of education (read: Primary School, JHS, and SHS). Socialization activities are more intensified and carried out in a more planned manner.

Second, reviewing every policy in the context of overcoming copyright infringement (IPR). This study certainly must arrive at a real discovery of the problem of ineffective policies. The government must be firm and bold to improve its policies. In addition, a policy of overcoming IPR infringement (copyright) that can reach IPR (copyright) violations in the regions should be made immediately.

Third, improve copyright law enforcement methods into systemic and consistent law enforcement. In this case, the government must consistently increase the number and professionalism of law enforcement officers. In addition, it is also important to have a form of reward for law enforcers who professionally enforce copyright law while being able to create a sense of substantive justice to the community.

In the end, through responsiveness and government efforts, it is hoped that in the future software copyright infringement by the Indonesian people will drastically decrease and this will also mark the creation of a good copyright culture.

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

 

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COPYRIGHT GOVERNANCE CYCLE (BOOK) AND THE IMPLICATIONS: THE AUTHOR’S PERSPECTIVE

Author: Prof. Dr. Budi Agus Riswandi, S.H., M.Hum. [2]

Introduction

The Law no. 28 of 2014 on Copyright which replaces Law no. 19 of 2002 on Copyright has given birth to new hopes for book writers regarding the legal and economic benefits that will be obtained. [1] As for the legal benefits, which is in the form of more effective copyright protection, [2] while the economic benefits are in the form of opening opportunities to exploit the economic value contained in copyright protected book creations.[3]

However, to realize  the book author’s hopes, in not enough through the existence of Law no. 28 of 2014, but it must be supported by the understanding and ability of book authors regarding governance cycle of the copyright (book). The cycle of copyright management (books) when viewed in the from the author’s perspective rests on three main aspects, consist of; creativity, exclusivity and incentives.

Book Copyright Governance Cycle

Copyright is the exclusive right of the creator that arises automatically based on declarative principles after a creation is realized in a tangible form without reducing restrictions in accordance with the provisions of laws and regulations.[4] copyright is an intangible asset.[5] Because copyright can be interpreted as material rights that are intangible, it is not surprising that copyright is needed to be managed.[6] From here, copyright management becomes very important. Copyright governance relies on three aspects, consist of: creativity, exclusivity and incentives for works. These three aspects in their relationship occur in the form of cycles. The copyright management cycle starts with creativity, exclusivity and incentives for works.

Creativity is the first cycle in copyright governance. Creativity is an opus that has a certain level of originality.[7] As is known, originality is related to whether the creator made the opus or creation. So in this context, judging whether an opus is original or not really depends on the truth of the creators who made the work. There are two possibilities to determine whether an opus is original or not. First, if the authors have strong evidence of having created the opus, then the opus is original; and Second, if some creators have solid evidence and some creators don’t, then some creators who don’t have solid evidence will be considered unoriginal.

From this understanding, for the first determination, it will only result in high and low creativity. If the embodiment is completely different, then the opus will be considered high in creativity, but if the embodiment is the same, then the opus will be considered low in creativity. Meanwhile, if some creators do not have strong evidence, then this will result in copyright infringement of a work.

The second cycle of copyright governance is exclusivity of creation. The exclusivity of an opus or creation is that a opus is created and has met the requirements of fixation, originality and creativity also is present in the fields of science, art and literature, thus automatically giving the existence to copyright. With the existence of copyright, it arises the exclusive rights. This exclusive right contains two kinds of rights, its consist of; moral rights and economic rights. Moral rights are rights inherent in the creator, while economic rights are rights to take economic benefits from creation protected by copyright. In terms of using this copyright, other parties may not use the copyright either without permission or against the law. From this situation, the exclusivity of a work can be realized.

Meanwhile, the incentive creation is a consequence of the creation that contain elements of creativity and exclusivity.[8] The incentives themselves can be in the form of economic value. This economic value can be realized in the form of money. Generally, a copyright protected work can be incentivized if it is done by licensing or trading.[9] From the existence of licensing activities or buying and selling of copyrighted works, it will generate economic value in the form of money. Herein lies the incentive for a work that contains elements of creativity and exclusivity.

After understanding the copyright management cycle, so that the books are also opus, must be approached with copyright governance cycles.[10] As is well known, books basically contain copyright. Therefore, the book should be able to treat the copyright management cycle as well. Book copyright governance cycle can refer to the description above.

Copyright Governance Implications (Books)

Looking at the cycle of book copyright management, this governance is basically very important to ensure the sustainability of the emergence of book works. In addition, the cycle of copyright management of books if implemented by book authors can have moral, legal, economic and social implications.

The cycle of copyright management of the book can have first implications for morals, which can be seen by paying attention to the importance of making books based on the values ​​of originality. By paying attention to the value of originality, the resulting book can be avoided in terms of plagiarism. The act of plagiarism itself is essentially an act that is morally forbidden. Therefore, the cycle of book copyright governance can ultimately have implications for the moral of the author.

The second implication of the book copyright governance cycle has legal implications. With the implementation of a book copyright management cycle, where one of them pays attention to the exclusivity of the opus. Certainly, it will have an impact on effective legal protection of book works. However, the exclusivity of the work confirms to others that the opus may not be used by other parties either without permission or against the law.

Another economic implications are  from the book copyright governance cycle. As is well known, books are opus that can be exploited economically through reproduction, announcements, and adaptations.[11] With the opus of books being exploited economically, economic benefits will be generated by the author. The economic benefits that can be obtained in the form of money are ultimately expected to improve the economic conditions of the writer.

Others implication of the book copyright governance cycle are social implications. The cycle of book copyright governance, if explored further, will also have implications for the relationship between the author and other related parties/stakeholders. With a good relationship between the author and stakeholders, socially the cycle of book copyright governance has presented social implications.

Conclusion

The book copyright governance cycle includes aspects of creativity, exclusivity and incentives. Each of these aspects are related to each other. If the book copyright management cycle is implemented, there will be a continuous process of the book itself. The implications of the book copyright governance cycle are in the form of moral, legal, economic and social implications.

 

References

Arthur R Miller dan Michael H Davis, Intellectual Property Patent, Trademarks, and copyright, St. Paul Minnesota: West Publishing Companym 1984.

David Brainbridge, Intellectual Property, England: Pitman Publishing, 1999.

M Hawin dan Budi Agus Riswandi, Isu-Isu Penting Hak Kekayaan Intelektual di Indonesia, Yogyakarta: Gadjah Mada University Press, 2017.

Robert C. Megantz, How to License Technology, Singapore: John Wiley & Sons, INC, 1996.

Simon Stokes, Digital Copyright Law and Practice, London : Butterworths, 2002.

Yusron Isnaeni, Hak Cipta dan Tantangannya di Era Cyberspace, Jakarta: Ghalia Indonesia, 2009.

Law Number 28 Tahun 2014 on Copyright

Law Number  19 Tahun 2002 onCopyright

 

[1] One of the copyright rules in Law Number 28 of 2014 on Copyright which provides new hope in the form of legal and economic expectations related to the regulation of Collective Management Institutions (LMK). In Law no. 28 of 2014, the issue of LMK has received a detailed and clearer regulation rather than stipulated in Law Number 19 of 2002.

[2] The protection aspects of copyright are moral rights and economic rights. Moral rights are rights inherent in creators in the form of paternity and integrity rights, while economic rights are rights to take economic advantage of the creation which is protected.

[3] David Bainbridge stated that :”Copyright provides a very useful and effective way of exploiting a works economically. It provides a mechanism for allocation of risks and income derived from the sale of the work.” Based on David Brainbridge, Intellectual Property, England: Pitman Publishing, 1999, p. 36.

[4] Article 1 point 1 Law Number 28 of 2014 on Copyright

[5] Article 16 point 1 Law Number 28 of 2014 on Copyright

[6] Copyright management is an integral part of the science of intellectual property management.

[7] Arthur R Miller dan Michael H Davis stated that:”Originality does not imply novelty, it only implies that copyright claimant did not copy from someone else.” Lihat Arthur R Miller dan Michael H Davis, Intellectual Property Patent, Trademarks, and copyright, St. Paul Minnesota: West Publishing Companym 1984, p. 289.

[8] This idea refers to the theory of copyright protection known as the incentive theory. According to incentive theory, copyright protection is an economic incentive given to creators in order to encourage creators to invest time, effort, expertise and all the resources they have for the process of making creativity. Budi Agus Riswandi, “Notes on Management of Copyright Information Management, Copyright Electronic Information and Technology Control Means in Law no. 28 of 2014,” on M Hawin and Budi Agus Riswandi, Isu-Isu Penting Hak Kekayaan Intelektual di Indonesia, Yogyakarta: Gadjah Mada University Press, 2017, p. 125.

[9] Economically exploiting intellectual property including copyright can be done by means of new ventures, acquisitions, joint ventures, licensing, strategic alliances and sales. Robert C. Megantz, How to License Technology, Singapore: John Wiley & Sons, INC, 1996, p. 1-3.

[10] Books protected by copyright are basically an expression of the ideas from literary works, which can be scientific works, poetry, pictures, legends and so on. Literary works that are poured into the form of books include those protected by copyright. However, other works that are protected by copyright are not only literary works, but works in the fields of art and science are also protected by copyright. In the UK works protected by copyright under the Copyright, Designs and Patent Act 1988 (CDPA) consist of: original literary works; original dramatic works; original artistic works; sound recordings, films, broadcasts and cable programmes; and the typographical arrangement of published edition. See Simon Stokes, Digital Copyright Law and Practice, London : Butterworths, 2002, p. 24

[11] This mechanism is known as exploitation of creator rights. Some of the rights of creators whose economic benefits can be withdrawn are: reproduction rights, adaptation rights, distribution rights, performance rights, broadcasting rights, cable program rights, droit de suite, and community borrowing rights. On Yusron Isnaeni, Hak Cipta dan Tantangannya di Era Cyberspace, Jakarta: Ghalia Indonesia, 2009, p. 20-21.

 

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Unstrategic Research

The government believes that 2017 is the golden age of Indonesian research. The factor that encourage this assumption is that one year ago the government issued PMK Number 106/PMK.02/2016 regarding standard-based research output costs, where this is a new research strategy that is different from the previous research strategy. Then the question is, is it true that this new research strategy can encourage the golden age of Indonesian research?

External Strategy

Since the government issued PMK No. 106/PMK.02/2016, Indonesian research has established a research strategy based on Standards Output Cost. This means that research conducted in Indonesia is no longer focused on the form of orderly administrative reports, but rather puts forward the results in the form of outputs. The output can be in the form of journals, patents and others.

To support this research strategy based on standards output cost, the government in 2017 has also disbursed a budget of 1.395 trillion. Moreover, there is an additional allocation for Legal Entity State Universities of Rp 380.4 billion and community service funds of 150 billion.

With this change in research strategy, research in Indonesia, whether carried out by universities or other research institutions, is expected in the future to encourage the mastery and use of science and technology to be able to solve social or technological problems that exist in society. . In the end, the Indonesian society can achieve progress and high competitiveness through the results of their research.

Unstrategic Research

After the issuance of PMK and seeing at research practices at universities or research institutions, it can be found that research in Indonesia has three expected output strategies, consit of; First, research that is treated by universities and research institutions whose output strategies are research results in the form of international publications or international conferences; Second, research that is treated by universities and research institutes is the result of research strategies in the form of intellectual property used by the community, where researchers or universities and research institutions do this; and Third, research conducted by universities and research institutions whose output strategy is research results in the form of intellectual property that is utilized by the community through the role of intellectual property center.

From these three research strategies in practice, it seems that the government or limited company and research institutions are more likely to encourage the output strategy of the research results in the form of international publications. It is not even the responsibility of the government in terms of research proposals funded by the government “requires” that the research output be in the form of an international journal. In line with that, regarding the promotion of professorships, the government seems very strong in determining its policies by “requiring” that lecturers who have the intention to become professors must have a Scopus indexed international journal.

With the government’s strategy, the consequence is that research results can only be enjoyed by the government and fellow researchers. Why not, the results of research published in international journals are actually enjoyed by the government to “image” that the State has been able to encourage the progress of science and technology, while it is enjoyed by fellow researchers where the research results are only treated in the context of citations between fellow researchers.

In other side, there are not many parties who can enjoy the results of research with an international journal output strategy, it turns out that this strategy has several weaknesses, its consist of; First, whether they realize it or not, by only encouraging research through the output strategy of international journals, Indonesian researchers are actually being encouraged to “sale” their research results, without thinking about the protection side of the research results themselves; and Second, consciously or not, research through an external strategy in the form of international journals, researchers are actually being kept away from solving real social and technological problems faced by society. From all this, it is reasonable to say that research driven by the government does not have an effective strategy to advance the nation as a whole. In short, the golden age of Indonesian research will only become fantasy.

Intellectual Property Center Role Strategy

Looking at some of the weaknesses of the Indonesian research strategy above, this should encourage the government to review the research strategy that has been carried out all this time. The government should start thinking about a comprehensive strategy, in which the research carried out must be encouraged to be able to provide benefits to researchers, industry, society and the country as a whole.

For this purpose, research using research output strategies in the form of intellectual property through the role of intellectual property centers can be a strategic choice. The strategic values, its consist of; First, the research results of limited liability company/research institutions will get effective and efficient protection; Second, research results can be downstream through professional handling through the role of intellectual property center; Third, research results will not be hindered from making international publications possible; and Fourth, research results can raise the image of the State both in terms of international publications and other intellectual property, such as patents.

In fact, the government’s choice to encourage for a research output strategy like this has an embryo. At least, it can be seen from the government’s policies as stated in Article 13 paragraphs (2) and (3) of Law no. 18 of 2002. The main things of these provisions are; First, research results must be disseminated and intellectual property protected; Second, research results must be managed through intellectual property center. Therefore, the government in this context only needs to be more serious in developing this strategy if the results of research in Indonesia are expected to advance and improve the nation’s competitiveness. From this strategy, the expectation of the golden age of research is actually exist around us.

Wallahu’alam bis shawab.

 

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

and Chairman of the Association of Indonesian Intellectual Property Center (ASKII)

 

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Ilegal Downloading of Music and Song

The news on this week in media and electronic media has something interesting besides the plane crash of the Sukhoi SSJ 100 case. The news is in the form of several musicians and creators of music and national songs coming to the DPR to convey their aspirations related to the protection of music copyrights and song on the internet which is felt very serious right now. It can even threaten the sustainability of the Indonesian music industry.

Online Music and Songs

As is known, Indonesia as a legal state is actually a country that has had copyright law provisions since the days of the Dutch East Indies. This is proven by Indonesia during the Dutch East Indies era that had a copyright law called Autherwet 1912. Now, copyright law in Indonesia has undergone changes until finally it came to Law number 19 of 2002 concerning Copyright. Law number 19 of 2002 is a form of accommodation for two things. First, accommodation for the ratification of the WIPO Copyrights Treaty and the World Ponogram and Performance Treaty. These conventions are known as Internet Treaties; Second, accommodation for the rapid development of science and technology, such as the development of internet technology, is another factor in changing Indonesian copyright law.

Considering the substance of Law number. 19 of 2002, it is very clear that the Copyright Law was enacted to protect one of the creations of music and songs. Actually, there is something very progressive from the enactment of Law no. 19 of 2002, where copyright protection for music and songs is not only found in the real world (real world), but also covers copyright protection in the virtual world (virtual world). This can be found in one of the provisions that explain the meaning of announcements as regulated in Article 1 of Law no. 19 of 2002 basically the announcement of creations does not only reach in the real world area, but also in the virtual world area.

Therefore, what is requested by musicians and music and song creators on the proposal to block sites that practice illegal downloading of music and songs that are commercial in nature and harm them economically to the DPR is an effort that is legitimate to do in the context of get an optimal and effective copyright protection, although they should also do the legal process within the framework of legal learning.

Lagal Studies

Managing Director of Sony Music Entertainment Indonesia,  Totok Widjojo, is  stated the total download of illegal songs on one site in Indonesia could reach 6 million times per day. If one download is valued at IDR 1,000, the loss reaches IDR 6 billion per day (indotelko, 2012).

Based on the data, it seems that musicians and music and song creators are starting to look for ways to minimize losses caused by illegal downloading practices. There are two ways that can be taken to minimize these losses, which is through legal or political processes. It seems that in this context what is chosen is the political process. Then the question is, “why is the legal process not carried out by musicians and music and song creators?”  Perhaps the answer to this question is not really difficult because the reality of law enforcement in our country still shows a bad face.

However, despite the bad reality of law enforcement, there are things that musicians and music creators should play in encouraging good law enforcement. One of these roles is through legal learning to law enforcement officers and the public by taking legal action on the cases they face. It is true that musicians and songwriters have the notion that handling cases through the legal process is a form of wasting energy and materials, but from a legal perspective, what musicians and songwriters do can have a positive impact on improving law enforcement.

At least, when the case is entered into the legal process, law enforcement officers will be required to be able to resolve the case properly and fairly. The implication of this demand is that law enforcement officers will be encouraged to find out whether scientifically or practically understand this case and understand how to solve it. Realize it or not, law enforcement officers are slowly being pushed to improve their competence and professionalism. In another, if from this legal process a good and quality legal decision can be born, then this can be used as reference material for subsequent law enforcement processes.

Meanwhile, for the society with the adoption of this case through a legal process, they become aware that the act of illegal downloading contains elements of a violation of the law and causes harm to musicians, the government and the community itself.

Wallahualam bis Shawab.

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta

 

 

 

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Loss of Guarantee The Protection of Traditional Culture

Once again, the Indonesian society are faced with a commotion about the claims of traditional culture by the Malaysian society. In this cases that have arisen are related to Tarian Tor-Tor dan Gondang Sambilan (Sembilan Gendang) originating from the Mandailing society of North Sumatra. The interesting thing about this incident is that many parties feel “angry” on what has been done by the Malaysia. From the ordinary people to politicians. Because of this commotion, one question has really raised a question, is there a commitment by the State to guarantee the protection of traditional culture?

 

Constitutional Guarantee in Protecting Traditional Culture

According to the Preamble to the 1945 Constitution, it is clear that one of the objectives of the establishment of the State of Indonesia is within the framework of protecting the entire Indonesian nation and all of its bloodshed. It means that the State is obliged to be able to provide protection for both human and non-human resources. In the context of non-human resources, the State should be able to protect both natural and non-natural resources, there are no exception in terms of protecting traditional culture.

In accordance with this issue, based on the constitution bodies there are several provisions that provide direction as well as firm guarantees for the protection of traditional culture. The basic of constitutional in the context of protecting traditional culture is stated in Article 18B paragraph (2) of the second amendment to the 1945 Constitution which stated that “The state recognizes and respects customary law community units and their traditional rights as long as they are still alive and in accordance with community development and the principle of the Unitary State of the Republic of Indonesia as regulated in the Law.” and Article 28I paragraph (3) of the second amendment to the 1945 Constitution which reads as follows: Cultural identity and rights of traditional communities are respected in line with the development of times and civilizations”. In addition to the above provisions, Article 32 paragraph (1) and paragraph (2) of the fourth amendment to the 1945 Constitution provide a basis for further strengthening the direction and guarantees of the constitution on the importance of protecting traditional culture in Indonesia.

 

 

Loss of Traditional Cultural Protection Guarantee

Based on the currently issue which is developing regarding Malaysia’s efforts with the recording of Tarian Tor-Tor dan Gondang Sambilan (Sembilan Gendang) as cultural heritage, which is really concerning. This concern arises because this case is not the first case but has become a case for the umpteenth time related to traditional culture. The question is, in this context can the State be considered to have lost its commitment to guarantee the protection of traditional culture?

Talking about the state’s commitment to guarantee the protection of traditional culture, it is actually not enough to just express it in the form of normative formulations in the constitution, but there are no more tangible actions. In reality, the State has lost its commitment to guarantee the protection of traditional culture. There are two parameters that the commitment of the State has actually been lost in providing guarantees for the protection of traditional culture. The two parameters are;

First, in the context of case resolution, it appears that the State is unable to complete the settlement of cases of claims of traditional culture by foreign parties completely and clearly. From the Batik case to Tarian Tor-Tor, the state can only remain silent without a clear attitude to resolve the case. Even if there is a response, this does not solve the case completely. Recognition by UNESCO of several traditional cultures has not resolved the problem of protecting traditional cultures, as evidenced by the case for other types of traditional cultures. On the other hand, efforts to encourage all traditional cultures to be recognized by UNESCO may not necessarily be carried out due to strict requirements and may be inefficient.

 Second, in the context of developing a legal system, the State is unable to develop legislation that leads to the development of a traditional cultural protection system. In fact, if you look at the provisions of Article 18B paragraph (2) of the Second Amendment to the 1945 Constitution, the constitution explicitly requires that in the framework of respecting traditional rights which also includes the protection of traditional culture, a statutory provision should be made that can optimize the intent of Article 18B paragraph (2). the 18B. In fact, until now the expected legislation has not appeared. In the past, the Directorate General of Intellectual Property Rights at the Ministry of Law and Human Rights had indeed drafted a Bill on the Protection and Utilization of Traditional Culture, but the bill itself so far has not shown a clear end to its origins. Therefore, this can be interpreted that it is true that the State has lost its commitment to guarantee the protection of traditional culture.

Wallahu’alam bis Shawab.

Prof. Dr. Budi Agus Riswandi, S.H., M.Hum.

                                                Director of Intellectual Property Rights Center

Faculty of Law UII Yogyakarta