Monday, March 26, 2012

Copyrighted Culture?

We can't hide from the fact that culture still plays important role nowadays. Anywhere you go in Indonesia, you'll see workmen or school kids wearing batik. You'll hear traditional music being played on the local radio, from daylight to the dead of night. Since culture is fun and becoming part of Indonesian daily life, the issue of "claimed culture" is a bit sensitive.

Not so long ago, we could recall clearly how Malaysia was blamed due to it's commercial tourism video. It shows some traditional elements that belong to Indonesia. Wayang, batik, Reog Ponorogo, Rasa Sayange song, and the latest one is rendang. The public reaction toward this particular act is predictable, outraged by the idea of stealing identity of another nation, Indonesian bloggers fills the internet with hatred testimony to Malaysians. But spreading negative comments or blaming Malaysia won't solve any of this cultural problems. So, what's the solution?

Some people believe that the using of Intellectual Property Law across the border of two nations could prevent such things. By "copyrighting", "patenting", or even "trademarking" tangible or intangible heritage such as traditional architecture, ancient manuscripts, local foods, and traditional clothes ones can save it's culture. Is it true? I personally think that it is very naive. The term of intellectual property links to personal posession, an exclusive right to respect someone's work. We can't just merely copyrighted culture, because no one really know since when the Javanese built joglo or whose the one who started batik.

"Copyright deals with the rights of authors in traditional cultural works like literary and artistic works. Examples of the rights that authors gain are the right to reproduce the work and the right to perform the work in public." (A Philospohy of Intellectual Property by Peter Drahos, 2005).

Based on that explanation, it is crystal clear how copyright can't be the relevant tools to protect traditional knowledge. Copyright was meant for modern-English-type literary and artistic work which the authors were known. There is an idea to simplify a product of culture which the author is unknown to refer to its group of origin. Sounds like a solution, eh? No, in fact you can't apply it to a country like Indonesia. I give you a clear example;

UNESCO tried to simplify La Galigo as the intangible heritage of Bugis people in South Sulawesi. La Galigo is the largest epic in the world, been created approximately around 14th century, but no one know who was the person which flicked the fire on the first place. Then, the people of Luwu (a regency in South Sulawesi) opposes the idea of putting the whole Bugis landscape as the origin land of La Galigo, since the epic itself refers Luwu as the background where all the story begins. Please underline the fact that the whole Bugis region considers Luwu as their mother kingdom. However, the language and culture of people in Luwu differs with the rest of Bugis world. The original text of La Galigo contains a lot of archaic words that are unknown on standard Bugis language nowadays. It strengthen the Luwu's claim that UNESCO is wrong, "you can't just simply give the La Galigo claim to Bugis people while in fact it's coming from our place."

In addition, the principal of "Public Domain" that attached on cultural products prevents us to copyright it. Culture isn't meant to be copyrighted, as some scholars states.

However, some basic elements of copyright could be used. The concept of performing rights could prevent one culture being hijacked by others. Giving title or credits to the original group (which the author is unknown) could at least anticipate the problem. How about patent? Two years ago there was an opinion to patent the Phinisi, a traditional wood-made ship from Bulukumba. That's also crazy. Patent for culture is the biggest joke in this century. Those who throws the idea of patenting Phinisi do not understand that patent deals with invention (read: new stuff being invented) and the protection can't last forever.

"Patent statutes protect inventions. Protection is conditional upon satisfying various criteria of which novelty and inventiveness are two important examples. Patent rights are of limited duration". (A Philosophy of Intellectual Property by Peter Drahos, 2005).

So, what's the solution? The conception of Intellectual Property rights are so western. Indonesia need to create it's own legal instrument inspired by those basic ideas to protect its traditionalism. We can adopt "copyrighted culture" in our own way. The principle of geographical indications on Intellectual Property protection could be elaborated, for instance.

"Geographical indication is a term that is often used broadly to embrace all forms of protection for indications of geographical origin.." (The Law of Geographical Indications by Bernard O'Connor, 2006).

Eventhough no one really know who's the author of a traditional literary or artistic work, by indicating its origin uses Geographical Indications, ones can save a specific culture for being hijacked. Bilateral agreement between two nations about geographical indications could settle this cultural-dispute. The European Community - Australian Wine Agreement on 1994 shows how geographical indications solve the problem. It is proven improved European Community market access conditions for Australian wine products, in the other hand Australia benefits from the restriction on the use of geographical indications and expressions apply to the "description and presentation of wine".

Culture is included as one of geographical indications' objective. "Traditional knowledge is collective knowledge. Sometimes, due to have parallel development or due to the exchange of knowledge, communities with similar ecosystems or problems have the same or similar traditional knowledge. It is extremely difficult to determine with accuracy  which communities are the rightful owners of a certain knowledge or the relationship between individuals within a community and traditional knowledge. Geographical indications are not intended to reward innovation, but rahter to reward members of an established group or community adhering to traditional practices belonging to the culture of that community or group." (Law of Geographical Indications by Bernard O'Connor, 2006).

Based on the idea of protecting a cultural expression with unknown authorship, geographical indications settle problem without copyright bias. Malaysia or any other country in this world could continue using batik, playing wayang, or reciting La Galigo, but the geographical indications will always refer to Indonesia as it's origin.

No comments: