Introduction
This paper will examine the link between ethnicity, national symbolism, and the emerging regulation of traditional knowledge and traditional cultural expressions held by local and indigenous communities in Southeast Asia. It will point to the difficulties with such regulation if knowledge is held and culture is practised across borders, and it will discuss models for regional solutions to overcome such difficulties. In legislative models under consideration at the national and/or international level, traditional knowledge tends to be linked to certain ethnic communities and their territories. As this paper will show, this link is problematic in Southeast Asia, which has been at the crossroads of international trade for many centuries and where firm nation state borders were established only during the last century. The problematic link between traditional knowledge and ethnicity was initially often ignored in international negotiations on treaties and policies related to traditional knowledge in international organizations such as the World Intellectual Property Organization (WIPO), United Nations Educational, Scientific and Cultural Organization (UNESCO) or the United Nations Environmental Programme (UNEP).Footnote 1 It remains one of the most serious obstacles to consensus on the question of how to legally protect traditional knowledge and traditional cultural expressions. The following will tentatively discuss definitions of traditional knowledge and traditional cultural expressions in law and in other social sciences, explain the reasons behind the recent popularity of these concepts, and provide an update on the state of current negotiations regarding international protection, in particular at WIPO. Southeast Asian, and in particular Indonesian examples, will then be used for the national regulation of traditional knowledge and traditional cultural expressions originating from local communities to show how they can become transformed into expressions of national culture and national identity. Furthermore, this paper will show how this can lead to cross-border conflicts due to the relatively static nature of the legal concepts of traditional knowledge and traditional cultural expressions and perceptions of the communities entitled to them. National laws and international models often depart from essentialized notions of local knowledge holding communities.Footnote 2 They ignore the relatively permissive boundaries of ethnic communities and their territories and cultural expressions. They also ignore the fact that such communities frequently live on both sides of borders that have been drawn by colonial powers or post-colonial nation states without the involvement of those communities. In this paper, Willem van Schendel's concept of Zomia will serve as a useful reminder that minority groups in borderlands may have culturally and linguistically more in common with each other than with the representations of national culture in their respective capital cities. Van Schendel developed the concept as an alternative geographical area focused on Tibeto-Burman-speaking regions and as a criticism of the compartmentalization of conventional area studies.Footnote 3 James Scott has used the concept as a departure point to speak of ‘regions of refuge’ for upland communities fleeing the oppression of state-making projects in the valleys. In this analysis, the lifestyles of so-called ‘tribal communities’ appear as political choice rather than as ecologically and culturally determinedFootnote 4 and this understanding provides an important corrective for the essentializing notions used in debates about law and policy. Geoffrey Benjamin summarizes this position eloquently when he writes that ‘being tribal is a matter of social action, rather than a passive condition of existence’.Footnote 5 An important corrective for essentializing notions of cultural heritage outside such ‘regions of refuge’Footnote 6 is finally the mandala concept historians use to describe political rule in feudal kingdoms in Southeast AsiaFootnote 7 and its understanding as a cultural space.Footnote 8Mandalas, a concept inspired by Buddhist or Hindu art, pictures political power as emanating in circles from the capitals of feudal kingdoms as sacred centres. Power was strong in the centre and increasingly weaker in the outer circles. As Evans points out, ‘Mandalas at their extremities waxed and waned, shading off into vassal states and people’.Footnote 9 Sometimes, such vassal states paid tribute to and were influenced by several more powerful neighbours simultaneously.Footnote 10 The ‘vaguely definable geographical area without fixed boundaries’, ‘where smaller centers tended to look in all directions for security’Footnote 11 explains cultural influences and migration patterns and makes it clear that much of the culture of this region is the culture of ‘people in motion’. Scott suggests further that the ‘regions of refuge’ he finds in upland Southeast Asia could just as well be applied to maritime Southeast Asia.Footnote 12 This paper will provide examples for claims to traditional knowledge and traditional cultural expressions as aspects of cultural heritage from both mainland and maritime Southeast Asia and will point to the potential for further disputes about such cultural heritage in the ‘Asian borderlands’.
The emergence of ‘traditional knowledge’ and ‘traditional cultural expression’: ‘Third World’ art and new paradigms of environmental governance
‘Traditional knowledge’ and ‘traditional cultural expression’ are terms used during international negotiations within a specialized committee of WIPO, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC). The IGC convened for the first time in 2001 following fact-finding missions to 28 countries in 1998 and 1999 to find out about intellectual property-related needs and expectations of traditional knowledge holders.Footnote 13 The term ‘traditional knowledge’ has been used by WIPO in a general sense (traditional knowledge lato sensu) and in a narrow sense (traditional knowledge stricto sensu). Traditional knowledge in a narrow sense refers to traditional knowledge of a technical nature, for example, in relation to agriculture, the environment or medicine, as well as to traditional knowledge associated with genetic resources.Footnote 14 It is distinguished from ‘traditional cultural expression’, a term that is used interchangeably with ‘expressions of folklore’ to refer to ‘tangible and intangible forms in which traditional knowledge and cultures are expressed, communicated or manifested’, for example, verbal expressions, musical expressions, expressions by action such as dance, and tangible expressions in art and crafts.Footnote 15 Traditional knowledge in a general sense recognizes that it is often difficult to distinguish clearly between traditional knowledge and the manner in which it is transmitted and it includes, therefore, traditional cultural expressions as well as the narrower term ‘indigenous knowledge’.Footnote 16 All of these terms are in turn regarded as sub-categories of heritage, which in the WIPO Glossary of Key Terms is mainly defined in relation to ‘Indigenous Peoples’. This definition draws strongly on the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples drafted within the UN Sub-Commission on the Promotion and Protection of Human Rights. It is again much wider and includes, for example, objects, sites and languages, documentation of and by indigenous peoples, human remains and immoveable cultural property such as sacred sites of cultural, natural and historical significance and burials.Footnote 17
Several previously separate discussions have come together in the construction of these terms. One is a long-standing discussion which began in the 1960s to provide some form of legal protection, in developing countries in particular, to what was then still referred to as folklore. The immediate result was a revision in 1967 of the WIPO administered Berne Convention for the Protection of Literary and Artistic Works to enable countries to designate a ‘competent authority’ to represent, protect and enforce rights to ‘unpublished works where the identity of the author is unknown’. Although provisions to this effect became included in a number of the new copyright acts that developing countries were introducing at the time, until 2002 only India had implemented the provision by notifying WIPO about its designated competent authority.Footnote 18 More popular became the provisions of the Tunis Model Law on Copyright for developing countries drafted in 1976 by a Committee of Governmental Experts with assistance from UNESCO and WIPO.Footnote 19 Part of its appeal regarding folklore protection to developing country governments at the time may have been that it spoke of copyright to ‘works of national folklore’, which would be exercised by a ‘competent authority’ at national level. There was only a very limited role for the individuals and communities actually generating the material.Footnote 20 A partial paradigm shift towards the community level became visible in the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions drafted jointly by UNESCO and WIPO in 1982. The Provisions moved away from copyright to specialized (sui generis) legislation for folklore protection. They recognized the communities and individuals producing the material. In authorizing use and enforcing rights, they provided a choice between a national level ‘competent authority’, on the one hand, or the communities themselves, on the other hand, where ‘aboriginal or other traditional communities are recognized as owners fully entitled to dispose of their folklore’ and ‘sufficiently organized to administer the utilization of the expressions of their folklore’.Footnote 21
In the WIPO IGC deliberations, these long-standing concerns regarding folklore protection, relevant in particular for indigenous and ‘third world’ artistic expressions, were joined with previously separate discussions about traditional knowledge related to biodiversity, food and medicine, and its relationship to genetic resources. These discussions had their origins in a renewed appreciation of traditional knowledge as a sophisticated alternative or supplement to scientific knowledge in biodiversity conservation and natural resource management. They were spearheaded by ecologists, anthropologists and ethno-biologists, whose fieldwork showed the usefulness of traditional knowledge, which was based on long-term practices and observations of local and indigenous people.Footnote 22 Researchers in these fields pleaded for a better understanding of knowledge previously regarded as unscientific and superstitious. They advocated a holistic approach to the topic and warned of ‘biopiracy’, the potential for appropriation of knowledge and reduced access to genetic resources due to intellectual property rights not being appropriately adjusted.Footnote 23 The new thinking about traditional knowledge and community-based management systems soon became visible in institutions such as the United Nations Food and Agriculture Organization (FAO), which introduced the concept of ‘farmers’ rights’ as a counterweight to the expansion of intellectual property rights in food and agriculture.Footnote 24 Extremely influential in establishing the concept of traditional knowledge in the minds of policy-makers and legislators was the Rio Convention on Biological Diversity of 1994, which required signatories in Article 8(j) to ‘respect, preserve and maintain knowledge, innovations and practices of Indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity’ and to promote the wider use of this knowledge with the approval of the knowledge holders and to put into place mechanisms for equitable benefit-sharing.Footnote 25 Other international conventions with an important role for traditional knowledge held by local and/or indigenous communities are the FAO administered International Treaty on Plant Genetic Resources for Food and Agriculture of 2001, and the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003.Footnote 26 Holistic perceptions of the heritage of indigenous peoples, including traditional knowledge, have further been promoted in the Draft Principles and Guidelines for the Protection of the Heritage of Indigenous Peoples, drafted within the UN Sub-Commission on the Promotion and Protection of Human Rights,Footnote 27 and in the UN Declaration on the Rights of Indigenous Peoples adopted in 2007.Footnote 28 Finally, such perceptions have of course also been influential in the writings, reports and policy papers of indigenous scholars and of NGOs representing indigenous peoples’ interests.Footnote 29
Approaches towards traditional knowledge and traditional cultural expressions in Asia: who should benefit and how should traditional knowledge and traditional cultural expressions be defined?
Like developing country governments in general, Asian governments have largely been proponents of strong protection of traditional knowledge and traditional cultural expressions.Footnote 30 However, given the frequent linking of the traditional knowledge debate with ‘indigenous knowledge’ and an increasingly international movement of indigenous peoples,Footnote 31 Asian government delegations have made it clear during the WIPO IGC discussions that there are some important differences in the understanding and role of traditional knowledge and of the term ‘indigenous’ in their countries in contrast to the settler societies in North or South America or in Australia and New Zealand, from which many of the ‘indigenous knowledge’ examples are drawn.Footnote 32 In discussions in the WIPO Intergovernmental Committee dealing with traditional knowledge, traditional cultural expressions and access to genetic resources, the Indonesian delegation, for example, expressed the view that the definition of ‘indigenous peoples’ depended on the historical background involved. They thought that ‘the present use of the term originated in a colonial context, in which the ruling majority of colonialists had to be differentiated from the so-called original people living on the land before the colonialists came’, but that there were many countries in the world where the majority or the entire population was indigenous. The Indonesian delegation expressed, therefore, a preference for terms such as ‘traditional community or society’ or ‘community bound by customary law’.Footnote 33 The latter term, ‘masyarakat adat’ is in fact the term currently used to describe local communities in the revised Indonesian Constitution.Footnote 34 The Indian delegation also pointed out that ‘indigenous and local communities. . .[were] terms that had a connotation derived from the colonial era’ and it was a model not relevant in Asia and not applicable in large parts of that continent. The Indian delegation later clarified its position by stating that outside the so-called ‘New World’, there was a lot of traditional knowledge which resided in society at large. It would, therefore, not be correct to say that traditional knowledge was the sole prerogative of indigenous communities; other civil society members should also be included in the debate.Footnote 35
The discussion flared up again during recent WIPO IGC meetings when working group drafts for the protection of traditional cultural expressions were considered and a definition of ‘beneficiaries’ of such protection had to be included. NGOs representing indigenous peoples consistently argued that the focus of the definition should remain confined to local and indigenous communities as holders and guardians of traditional cultural expressions. A number of national delegations, however, insisted on broader definitions including such beneficiaries as ‘nations’, ‘families’, ‘minorities’ and/or ‘individuals’. Proposals of this nature came from delegations of North African and Caribbean countries, but also from countries in Asia such as China, Iran and Indonesia.Footnote 36 A facilitator introduced at the Nineteenth IGC Meeting to produce a cleaner version of controversial draft articles concluded that ‘[b]ecause the IGC is so divided on this issue it is not possible to draft a single option which would be “clean and elegant”’.Footnote 37
The traditional reluctance of many Asian governments to accept the international legal concept of ‘indigenous peoples’ as a concept that is relevant within their national territories is well documented.Footnote 38 Many people thought that the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in September 2007Footnote 39 would lead to a different attitude in Asian developing countries. It is indeed remarkable that all the East and Southeast Asian countries and all South Asian countries voted in favour of its adoption with the exception of Bhutan and Bangladesh. This UN Declaration contains various provisions for the safeguarding of heritage, traditional knowledge and traditional cultural expressions, but it does not define the concept of ‘indigenous peoples’. However, if one examines the declarations made and statements given by some representatives of Asian nations in explanation of their votes, one realizes quickly that the old attitudes have not really changed. India and Indonesia, for example returned to older UN working definitions of ‘indigenous peoples’ that stressed historical continuity with pre-invasion and pre-colonial societies.Footnote 40 India interpreted the concept as referring to ‘peoples in independent countries who were regarded as indigenous on account of their descent from the populations which inhabited the country. . .at the time of conquest or colonization or the establishment of present state boundaries and who. . .retained some or all of their socio-economic, cultural and political institutions’. This interpretation clearly means that the entire population with roots going back to pre-colonial times is ‘indigenous Indian’ as opposed to foreign elements that were introduced during colonial rule. Similarly, the representative of Indonesia stated that ‘given the fact that Indonesia's entire population at the time of colonization remained unchanged, the rights in the Declaration accorded exclusively to indigenous people and did not apply in the context of Indonesia’.Footnote 41
When it comes to defining the subject matter of traditional knowledge and traditional cultural expression protection, approaches in Asia differ at times from both the ‘indigenous worldview’ and the working definitions of WIPO. Although the intellectual property focused working definitions of WIPO, discussed above, are now reasonably well accepted for the purpose of the negotiations, representatives of indigenous organizations continue to stress the holistic nature of traditional knowledge and the difficulties of separating it conceptually from the traditional cultural expressions that are frequently used to transmit it. The issue occasionally resurfaces in the deliberations, as when experts from Guatemala and the Indian Council of South America support the inclusion of ‘sacred places’ in the list of protected subject matter, whereas others preferred to speak of ‘spiritual forms’.Footnote 42 The holistic nature of the material has also been the focus of much of the anthropology and social science literature in this field.Footnote 43 As Posey puts it: ‘For indigenous peoples, cultural expression extends to ‘nature’ and the ‘environment’, since both are extensions (or manifestations) of society. For many groups, nature quite frankly is society; or, concomitantly, society is inextricable from nature’.Footnote 44
International intellectual property lawyers, on the other hand, are used to design forms for the protection of commercialized and industrialized forms of knowledge, and they find the variety and changing nature of traditional knowledge systems difficult to accommodate. As Curci points out in discussing the ‘heritage’ definition in the Report of the UN Economic and Social Council on the Cultural and Intellectual Property of Indigenous Peoples: ‘. . .these aspects of traditional knowledge are neither directly protectable nor enforceable through internationally agreed upon IPRs’.Footnote 45 Furthermore,
[I]it is highly unlikely that industrialized States—who have encouraged the globalization of IPRs—may in turn accept the possibility of granting protection to a new generation of IPRs for this type of knowledge. The compatibility of the maximalist or holistic approach to TK [traditional knowledge], through sui generis IP [Intellectual Property] systems, is fraught with intricate and difficult questions of basic definitions and enforcement that will largely lie outside the scope of this research.Footnote 46
By its very nature, regulation via intellectual property rights requires a certain simplification and homogenization of the subject matter over time. Law has to operate with clear-cut dichotomies and distinctions in attempting to create categories, approaches and general rules that apply to as many cases as possible.
This legal categorizing and the different understandings of traditional knowledge, if viewed from a legal or anthropological perspective, becomes clearer if the concept of ‘local’ or ‘indigenous’ knowledge as used by anthropologists and that of ‘traditional knowledge’ used by lawyers is more closely examined. Anthropologists, such as Ellen and Harris, acknowledge the fluidity of the concept and they have identified a large number of different terms with partly overlapping meanings, such as ‘indigenous knowledge’, ‘indigenous technical knowledge’, ‘ethnoecology’, ‘local knowledge’, ‘folk knowledge’, ‘traditional knowledge’, ‘traditional environmental (or ecological) knowledge’, ‘people's science’ and ‘rural people's knowledge’.Footnote 47 Conscious of the imprecise nature of any type of definition, the same authors offer instead a list of loosely worded characteristics. The more important ones on this list are: 1. Indigenous knowledge is local, rooted to a particular place and set of experiences and generated by people living in those places; 2. It is orally transmitted, or transmitted through imitation and demonstration; 3. It is empirical rather than theoretical; 4. It is constantly changing, although often represented as static; 5. Its distribution is socially differentiated, for example by gender and age; 6. It is holistic and situated within broader cultural traditions, so that separating the technical from the non-technical and the rational from the non-rational is problematic.Footnote 48
Apart from the problem of how far knowledge is ‘rooted’ to particular places, exactly such a separation between the technical and the non-technical is, however, attempted by intellectual property law experts and by WIPO's Intergovernmental Committee. They prefer to speak of ‘traditional knowledge’ and ‘traditional cultural expressions’. Different from anthropologists, international lawyers are of course in the uncomfortable position that they have to define what this knowledge includes for the purpose of the negotiations and the ultimate agreement. Accordingly, ‘Traditional Knowledge’ is defined in the WIPO working definition for the Committee as ‘knowledge resulting from intellectual activity in a traditional context’, including various parts of traditional knowledge systems, ‘knowledge embodying traditional lifestyles of indigenous and local communities’ and ‘contained in codified knowledge systems passed between generations’. The second part of the working definition states that it is not ‘limited to any specific technical field, and may include agricultural, environmental and medicinal knowledge, and knowledge associated with genetic resources’.Footnote 49
Whereas this working definition appears at first as fairly wide, it is nevertheless restricted to ‘technical fields’. In contrast to the characteristics listed by the anthropologists, the knowledge is no longer holistic, because it distinguishes between the technical and the non-technical. In line with that distinction, WIPO defines traditional knowledge of a technical nature separately from ‘traditional cultural expressions’, which include all the material that relates to traditional arts, crafts and ritual.Footnote 50
Whilst this bifurcation of knowledge for the purposes of the intellectual property discussion is often criticized by indigenous groups as distorting the holistic way in which it is conceptualized and transmitted, it is interesting to note that laws and administrative rules for the promotion and protection of such knowledge adopted in Asian countries have not necessarily respected the distinction between technical knowledge and artistic expressions. One of the first countries in Asia to put into legislation and policies the principles established at the 1992 Rio de Janeiro Earth Summit was the Philippines.Footnote 51 The landmark legislation in this context is the Indigenous Peoples’ Rights Act (IPRA) of 1997. The Philippines is an interesting exception to the widespread reluctance in Asia to enact special legislation for ‘indigenous peoples’. The concept of ‘indigenous peoples’ has a long history in this country dating back to the Spanish colonial period and subsequent rule by the United States,Footnote 52 and ‘indigenous cultural communities’ are constitutionally recognized.Footnote 53 The Indigenous Peoples’ Rights Act protects traditional resource rights and various manifestations of heritage and culture as ‘community intellectual rights’. It also protects the ‘cultural and intellectual rights’ of Indigenous Cultural Communities and Indigenous Peoples, defined as ‘. . .the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, traditional medicines and health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and practices, knowledge of the properties of fauna and flora, oral traditions, literature, designs, and visual and performing arts’.Footnote 54 Drafted prior to the WIPO IGC deliberations, the Indigenous Peoples’ Rights Act's holistic concept of ‘cultural and intellectual rights’ is clearly inspired by the Report of the UN Economic and Social Council on the Cultural and Intellectual Property of Indigenous Peoples of 1993.
India introduced in 2010 draft rules on traditional knowledge as delegated legislation under the Biological Diversity Act of 2002. These rules apply a very wide definition of traditional knowledge which includes traditional cultural expressions. Thus, traditional knowledge relates not only to ‘properties, uses and characteristics of plant and animal genetic resources; agriculture and healthcare practices, food preservation and processing techniques and devices developed from traditional materials’, but also to ‘cultural expressions, products and practices such as weaving patterns, colours, dyes, pottery, painting, poetry, folklore, dance and music’Footnote 55.
However, the WIPO legal working definition of traditional knowledge is also different from the anthropological concept of ‘indigenous knowledge’ in another sense: the WIPO working definition speaks of ‘codified knowledge systems’ and custodian/guardianship, collective ownership or cultural responsibility that ‘may be expressed formally or informally by customary or traditional practices, protocols or laws’.Footnote 56 Clearly, it is not confined to orally transmitted knowledge, but also includes knowledge transmitted in writing. India, for example, has established a Traditional Knowledge Digital Library, which the government uses to oppose patent applications in other countries that are essentially derived from such knowledge. One of the important parts of this database is a collection of almost 140,000 medical formulations from classical Indian traditions such as Ayurveda, which have been translated from ancient documents in Hindi, Sanskrit, Arabic, Persian and Urdu.Footnote 57 Therefore, the traditional knowledge concept of WIPO is broader than locally confined indigenous knowledge transmitted orally or through imitation and demonstration.Footnote 58 In accordance with the arguments presented by India and other Asian developing countries, the WIPO concept of traditional knowledge includes mainstream traditions that are widely used at national level, such as Ayurvedic medicine or Yoga in India or traditional Chinese medicine in China.Footnote 59 Nevertheless, as the source languages for the translations of traditional knowledge documents indicate, such knowledge is again widely spread across borders and national claims to it could occasionally lead to disputes.
The shift towards mainstream knowledge held at the national level and away from an exclusive focus on ‘indigenous knowledge’ again has implications for the identification of the knowledge holders. The circle of knowledge holders is not confined to communities that identify themselves as ‘indigenous’ in the sense of North American first nations or Australian Aborigines. What it requires is that the knowledge holders live traditional lifestyles to some extent or live in a traditional context and that they pass on their knowledge from generation to generation. This broader concept of the knowledge holders is also visible from provisions in India or Indonesia for the protection of the traditional knowledge of farmers.Footnote 60 These provisions can potentially be applied to mainstream, settled farming communities as well as to shifting cultivators and forest dwellers.Footnote 61 In India's most recent traditional knowledge rules, the ‘traditional communities’ are described as including, besides scheduled tribes and other notified tribal groups, also simply ‘families’.Footnote 62 The knowledge is, therefore, no longer exclusive to marginalized indigenous communities, but it has moved towards the centre where it is represented and defended by the nation state.
‘National Folklore’ and the potent mixture of cultural and intellectual property: the example of Indonesia
A departure point for the further discussion in this part of the paper will be Article 10(2) of the Indonesian Copyright Act.Footnote 63 In its current amended version, Article 10(2) provides that the Indonesian state holds the copyright to various expressions of folklore and to so-called ‘products of popular culture’.Footnote 64 This provision for the protection of Indonesian folklore was initially introduced in 1982,Footnote 65 when Indonesia replaced the Dutch colonial Copyright Act with a national law.Footnote 66 Of the model laws and provisions drafted by UNESCO and WIPO at the time for adoption in the new copyright acts of developing countries, Indonesia chose to follow the ‘national folklore’ approach of the Tunis Model Law, which left the administration of this subject matter exclusively in the hands of a ‘competent authority’ at national level.Footnote 67 One can only speculate about the reasons for this choice, but the Tunis Model Law appears as a document drafted in the spirit of a time when economic development was regarded to a large extent as a state-led and state-planned process. It promised strong protection via the established principles of copyright rather than leaving the matter to still nascent forms of sui generis protection. Seen in this light, it is hardly surprising that Indonesia was just one among many developing countries opting for copyright protection of folklore, whereas the more community-oriented UNESCO/WIPO model provisions on expressions of folklore of 1982 never gained much popularity.Footnote 68 According to WIPO's current website no less than 27 countries in Africa, Asia, Latin America and the Pacific have provisions referring to folklore as part of their copyright acts.Footnote 69
A current observer of Indonesian politics looking at Article 10(2) of the Indonesian Copyright Act will immediately ask the question of how such an approach relates to the recent decentralization policy of the country. This decentralization policy was introduced in a general spirit of reform after the Asian Crisis of 1997/1998 and the fall of the Suharto government in 1998, and it has diverted many powers from central government to the regions.Footnote 70 After all, it is in the regional areas that the folkloristic expressions will be found, because folklore (as any other form of tradition) is of course locally defined and, for the most part, associated with certain regions and territories (broadly defined).
However, when the Copyright Act was introduced in Indonesia in 1982, the Suharto government was still firmly in charge with its policies strongly centralized on Jakarta and leaving little room for regional autonomy. The immediate concerns were about the implementation of the folklore protection provision in practice: royalty collection at the central level would bring money to Jakarta, but the question remained how was it to be distributed from there to the folklore producing communities? And since some folkloristic expressions, such as Batik and the Indonesian shadow play or Wayang, were at the same time also protected as non-traditional works under Article 12 of the Indonesian Copyright Act, who would be able to make an informed decision as to what was traditional and held by the Indonesian state, and what was sufficiently ‘modern’ to qualify for individual copyright protection?Footnote 71 Furthermore, in view of the many ethnic communities producing folklore in Indonesia, how would a centralized agency be staffed so as to be able to claim sufficient expertise to represent all these different stakeholders and their interests.Footnote 72
In addition, even in the days of the Jakarta-centred Suharto government, questions were being asked about the impact of such a centralized model of folklore administration on the local customs and rituals of communities.Footnote 73 The original 1982 version of the Act included the provision in a section with the heading ‘The holder of copyright to national cultural objects’ and it included subsections that made it possible for the state, against compensation, to appropriate an author's copyright by Presidential Decree and consent of the Copyright Council, if this was in the national interest. Following critical comments on the new legislation in the academic literature,Footnote 74 the Indonesian government revised the provision and changed the heading of this section of the Copyright Act to the current ‘Copyright to Works of Unknown Authors’. It deleted the sub-sections on state appropriation and countered criticism of interference in community interests by (a) including in the provision that the government was exercising this copyright with regards to foreign countries, and (b) by explaining in a memorandum that ‘Indonesians themselves are generally free to use it’.Footnote 75 In the subsequent revision of the Copyright Act in 2002, the explanatory memorandum to Article 10(2) stated that the purpose of the provision was to ‘prevent actions by foreign parties which could damage the relevant cultural values’. The reference to ‘foreign countries’ in Article10(2) was deleted, but a new subsection 10(3) added to the Copyright Act, declaring that foreigners needed a licence from the relevant Indonesian authorities to use Indonesian folkloristic expressions.Footnote 76
Both the defence of, and royalty collection for, local Indonesian cultural expressions become, therefore, matters for the national authorities. The following reasons are especially likely to have contributed to the adoption of this approach: first, the Indonesian government regards the matter largely as a question of ‘us’ (Indonesians and their culture) versus ‘them’ (foreign tourists, art collectors, artists and advertising agencies who use material in an inappropriate manner). Such an understanding is in accordance with Article 32(1) of the Indonesian Constitution which declares that the state is the defender and promoter of national culture.Footnote 77 A centralized licensing mechanism and royalty collection appears a relatively simple solution to collect royalties from foreigners in the national interest.Footnote 78
Secondly, there is the role of the various regional and local traditional cultures in the creation of symbols of national identity.Footnote 79 The various regional cultures of Indonesia can be expressed with all their differences within Indonesia, but they become part of Indonesia's national culture when they are represented towards the outside world. From the perspective of the Indonesian government, this is important to safeguard a still sometimes fragile national unity; and it also justifies the use of local culture for political symbolism and for tourism campaigns aimed at a foreign audience.Footnote 80 However, as will be discussed later in this paper, the approach becomes problematic where ‘regional’ cultures are also represented in regions of neighbouring countries.
The shift of local and regional cultural expressions to become symbols of national identity leads furthermore to a blurring of the distinction between heritage protection and copyright protection.Footnote 81 This is apparent from the first subsection of Article 10, which makes the state the copyright holder to material that is actually not a matter for copyright protection at all, namely ‘prehistoric and historic relics and other national cultural objects’. Rather difficult to translate, the Indonesian text combines the word for ‘relic’ (peninggalan) with the word used throughout the Copyright Act for a copyright protected ‘work’ (karya), thus turning heritage items into objects for intellectual property claims.
The last mentioned part of Article 10 seems to have been inspired by the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, yet another international convention that was influential at the time the Indonesian Copyright Act was drafted. The concept of ‘cultural property’, that is now frequently used by communities and by nation states for claims based on tradition and identity, has its origins in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,Footnote 82 which was largely concerned with the repatriation of cultural heritage items that had been transferred from one country to another, especially during World War II. The concept was carried further in the 1970 UNESCO Convention. It defined ‘cultural property’ as ‘property, which on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science’.Footnote 83 The Convention then lists categories of ‘cultural property’, which are all tangible objects and items. Knowledge or intellectual skills were clearly not yet included. Also, the potential disputes that the Convention hoped to prevent were anticipated to arise between state parties.Footnote 84 The objects were regarded as national treasures rather than as cultural heritage of communities.
Over the four decades since the conclusion of this Convention, the understanding of the material and the terms for its protection have significantly changed. Legal Experts concerned with heritage have advocated a move away from the concept of ‘cultural property’ towards the broader concept of ‘cultural heritage.Footnote 85 In the meantime, however, cultural heritage claims, whether framed as ‘cultural property’ or not, expanded. They were now also applied to the cultural heritage of first nations, aboriginal people and indigenous communities that are part of nation states, in particular to reclaim ethnographic objects and human remains taken during colonial times to museums in the capital cities of the former colonising states.Footnote 86 Most importantly, however, for the topic of knowledge that crosses borders, the concept of ‘cultural heritage’ has clearly expanded to include intangible subject matter, such as indigenous and local knowledge.Footnote 87 This shift in emphasis is visible in the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage of 1972 and in particular in the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage concluded in 2003. Different from the nation state focus of the 1970 UNESCO Convention, the 2003 Convention gives ‘communities, in particular indigenous communities, groups and, in some cases, individuals. . .[an]. . .important role in the production, safeguarding, maintenance and recreation of the intangible heritage. . .’.Footnote 88 Furthermore, ‘intangible cultural heritage’ now also includes practices, knowledge and skills, especially ‘knowledge and practices concerning nature and the universe’.Footnote 89 The expansion has important consequences for knowledge-related forms of traditions that are practised and held across national borders. Whereas the tangible heritage of the previous convention was either non-movable cultural property (in the case of heritage protected buildings and other sites) or movable tangible cultural property that could only be in one place at a time (such as handicrafts or other cultural expressions), ‘intangible cultural heritage’ in the form of knowledge can be held simultaneously by many people on both sides of borders.
Article 10 of the Indonesian Copyright Act is, therefore, an excellent example for a combination of cultural and intellectual property that is symbolically powerful. It creates confusion, however, about the exact nature and strength of the ‘rights’ involved. For the most part, the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage expresses vaguely worded obligations for member states. The most concrete obligations relate to the identification of intangible cultural heritage within their territories and to the drawing up of inventories of intangible cultural heritage within their borders. This Convention, therefore, does not support strong claims to ‘cultural property’. As for the Indonesian state's authority to control the publication and reproduction of Indonesian folklore and popular culture, it requires further implementation via Government Regulation.Footnote 90 Perhaps because of the conceptual difficulties discussed above, this Government Regulation has never been issued. There are, therefore, currently still no rights to such traditional cultural expressions at the national level in Indonesia and the creation of international protection is still under negotiation at the WIPO IGC.
This situation could change quickly, however, if a Draft Law on the Intellectual Property Use of Traditional Knowledge and Traditional Cultural ExpressionsFootnote 91 is enacted. The law would create special conditions for use by foreigners, foreign corporations or Indonesian corporations incorporated under the foreign investment law. This circle of users would need a licence, to be granted by the relevant Ministry after hearing the advice of an Expert Committee. The draft foresees negotiation of benefit-sharing with local custodians, who in turn would be authorized by collective management committees. The details of these processes, however, would be regulated in further Government Regulations. Prohibited would be the use by foreigners, foreign corporations or foreign investment corporations without licence; use by any natural or legal person, whether Indonesian or foreign, without attributing the traditional knowledge and traditional cultural expression to the community from which it originates; and use by any of these users in a manner that is not appropriate, that creates wrong impressions about the relevant community or that offends, insults, defames the relevant community or stains its reputation. The custodians of traditional knowledge and traditional cultural expression could claim damages or ceasing of the prohibited activities. The law would further establish fines and jail terms for infringements. A separate draft law for the Management and Use of Genetic Resources is also under discussion.Footnote 92
Examples of cross-border disputes about traditional knowledge and traditional cultural expression and cultural heritage
In spite of the shift away from the ‘cultural property’ terminology, the concept seemingly continues to play a role in claims not just to the material covered by the 1970 convention, but also to intangible cultural heritage. As a result of this development and of mixed legislation such as in the Indonesian Copyright Act, the claims for cultural property or intangible heritage and those for intellectual property have occasionally become linked in the minds of politicians and the public and they have become reasons for diplomatic tensions and cross-border disputes between neighbouring countries. Some of this confusion can be seen in the discussions about cultural appropriation between industrialized and developing countries, but more recently in particular in the way claims to cultural ownership have been articulated between developing countries. Recent examples are the disputes between Indonesia and Malaysia about the ownership of cultural material such as songs and dances and about the use of this material in tourism campaigns. Two of these disputes concerned the use of, in one case, a folk song that Indonesians trace to the Moluccan islands and, in another case, a Balinese dance for Malaysian tourism promotion campaigns, such as ‘Malaysia Truly Asia’ and ‘Enigmatic Malaysia’.Footnote 93 There were further controversies about the patenting by the Malaysian Forest Research Institute in cooperation with the Massachusetts Institute of Technology (MIT) of the bioactive fraction of Eurycoma longifolia, a plant which is widely used in traditional Indonesian medicine (jamu) and known in Malaysia as Tongkat Ali and in Indonesia as Pasak Bumi.Footnote 94 These disputes were frequently portrayed in the Indonesian media in particular as disputes about intellectual property. In the case of the song used for ‘Malaysia Truly Asia’, the Indonesian Tourism and Cultural Minister wanted to investigate as to how far Indonesia could claim copyright to the song.Footnote 95 As discussed, however, international intellectual property protection for such material is not yet established and many of these claims constitute in fact claims to cultural heritage. The 2003 UNESCO Convention will not solve such disputes, because it serves mainly conservation purposes and it does not grant any real rights. Only the use of intellectual property principles and concepts leads people to believe that there is presently a legal basis for such claims. Thus, in view of the history of the term ‘cultural property’, Aragon and Leach are generally correct in stating that ‘[c]ultural-property manifestos follow the possessive logic and targets of intellectual property’.Footnote 96 Not correct, however, is their assumption that the notion of ‘cultural property’ is ‘an outgrowth of conventional IP law’ and their reference to the Preamble of the UNESCO Universal Declaration on Cultural Diversity.Footnote 97 The term is not actually used in this preamble. As explained earlier, the term ‘cultural property’ has its own history in earlier UNESCO conventions and it has been abandoned in the more recent ones. The mingling of intellectual and cultural property can further lead to an understanding amongst policy-makers that the national government should be in charge of such rights, which may be appropriate to some extent for heritage protection, but is a difficult proposition in the case of intellectual property rights.
If such cross-border disputes about heritage protection are becoming more frequent across the maritime borders of island Southeast Asia, there is perhaps even greater potential for them in the border regions of mainland Southeast Asia, South and East Asia, where borders have been drawn fairly recently by colonial and national policies.Footnote 98 The various minorities speaking Tibeto-Burman languages in Laos, for example, are mostly well-represented in neighbouring Thailand, Vietnam, China and Myanmar, although they are sometimes referred to by different names.Footnote 99 An excellent example of an ethnic group that easily crosses national borders are the Akha who live in China, Myanmar, Thailand and Laos.Footnote 100 Similarly, minorities such as the Dayak live across borders on the larger islands of Southeast Asia that are shared by different nation states, such as Borneo.Footnote 101 Thus, it is to be expected that relevant forms of knowledge and cultural expressions are widely held on different sides of national borders. Such national borders were often drawn by colonial authorities, thereby cutting through communities that lived on the margins of traditional Southeast Asian states. Using the mandala concept of political rule, where power depended on tributary relationships,Footnote 102 such traditional states did not have clearly defined borders. When national borders were finally enforced, communities and their cultures were artificially separated and ‘national’ boundaries were no longer in accordance with ‘cultural’ boundaries or customary perceptions of territory. However, such ‘cultural’ boundaries within nation states are, of course, also becoming porous as nation states are to some extent dissolving or reorganizing them in accordance with national objectives. Thus, as cultural heritage becomes the subject of centralized and national regulation, it could generate disputes between neighbouring nation states with identical claims to culture, between communities representing the culture and the nation state and between various communities within the same nation state.
Certainly the most violent of recent disputes with a link to heritage has been the military border conflict between Thailand and Cambodia about the temple complex Preah Vihear.Footnote 103 Although this conflict is about the exact line of the border in the area, the confrontation was triggered when UNESCO accepted a Cambodian application to register Preah Vihear as World Cultural Heritage. More recently, there have been controversies about the jeeb, included by Cambodia as a hand gesture of Khmer classical dance in UNESCO's Representative List of Intangible Cultural Heritage, but a gesture that is also claimed by Thailand.Footnote 104
Knowledge across community borders
The current approach in the Indonesian Copyright Act seeks to address the conflicts at the international level where the Indonesian government defends Indonesian culture against misappropriation from ‘outside’ (a concept that embraces both foreign nationals within Indonesia as well as entities abroad). It does not explain, however, how conflicts between different communities within Indonesia are to be solved or what happens if there is a conflict between community/individual claims to culture and the claims of the national government.Footnote 105 In this context it is important to note that the decentralization policy adopted since the end of the Suharto era has strengthened regional identities, and that regional communities and their cultures are now also protected in the revised Indonesian Constitution as customary law or adat communities. Although local community use of cultural material is not affected, the widespread use of local culture by other communities and at the national level obviously has the potential to at least occasionally transform originally local cultural expressions into widely used national ones. This seems to have happened, for example, in the field of traditional medicine. ‘Jamu’, the term for this medicine in Indonesia, originates actually on the island of Java,Footnote 106 but it became widely used in both the Indonesian and Malay languages. The Indonesian government regulated it in 1963 as ‘indigenous Indonesian medicine’ to be used for the benefit of all Indonesians.Footnote 107
‘Indigenous Indonesian’ (or ‘indigenous Malaysian’ in Malaysia) is a concept that is used in contrast to foreigners, but under the national motto of ‘unity in diversity’ it includes all Indonesian ethnic communities. It links ethnic identity and traditions to the territory as is apparent from the widely used terms ‘pribumi’ in Indonesia or ‘bumiputra’ in Malaysia, which literally mean ‘sons of the soil’. Most Indonesians have no problems with their various layers of identity whereby they are Javanese, Balinese and so forth and at the same time citizens of Indonesia. However, overlaps in the various legislative protections of traditional cultural expressions may nevertheless lead to conflicting claims. For example, a new protection for geographical indications includes traditional cultural expressions such as handicrafts. Different from the national approach in the Copyright Act, the Geographical Indications Decree allows individual users and communities to register these geographical indications. Thus, intellectual property rights to the same handicrafts, for example, could be held by individuals or communities in the form of geographical indications, on the one hand, and by the national government in the form of copyright on the basis of the Copyright Act on the other hand.Footnote 108
Problems arise, furthermore, with communities at the margins of the nation state, such as the foreign migrant communities and communities that feel ethnically different or culturally not well integrated into mainstream society. In the past, this discussion often focused on migrant communities such as the Chinese, but more recently the focus has shifted to tribal communities that live in relatively remote areas of the country.Footnote 109 However, whilst such tribal communities are often regarded as earlier inhabitants of particular territories, in many parts of Southeast Asia, they could also be relatively recent migrants, who were displaced in their previous homes because of warfare or political upheaval. In such cases, therefore, tribal communities are simultaneously also migrants, and the clear distinction used in much of the legal literature between ‘aboriginal’ peoples and migrants no longer applies.
Conclusion
International model laws and conventions have linked traditional knowledge and traditional cultural expressions with ethnic communities living traditional lifestyles. Such communities are relatively easy to identify as ‘aboriginal’ peoples in the context of the settler colonies in North and South America, Australia or New Zealand. However, their identification in Asia, where traditional knowledge is still widely spread in mainstream society, is sometimes more difficult. Asian countries have, in the main, shown a reluctance to recognize the international concept of ‘indigenous peoples’ for their relatively remote living tribal and forest dwelling communities. Instead, much of the traditional knowledge is moved to the central level, where it is defended by the nation state and where royalties from foreign users are collected either by national authorities or by communities following approval by national authorities. Local communities in many cases can only indirectly claim compensation and some benefits from national trust funds set up for such purposes. Laws, however, are not uniform in this matter and there is much overlap between different legal instruments.
At the international level, knowledge has been widely spread across regions and national borders. It becomes the subject of claims by different nation states on the basis of national laws that occasionally mix principles of heritage protection with those of intellectual property. If this trend continues, regional mediation may become necessary for an increasing number of disputes between countries with similar traditions and similar claims to heritage. In this context, a good understanding of the history of such heritage claims becomes important. Concepts such as Zomia and ‘regions of refuge’ help to explain the relatively recent incorporation into nations of territories and people that are remote from the capital. In Southeast Asia, national borders of recent origin are further replacing traditional mandala concepts of power that focused on personal bonds rather than territory. Thus, ‘national’ borders are not in accordance with ‘cultural’ realms, and this inevitably leads to disputes where cultural material is subject to rights and regulations of both national and customary law. Such disputes can develop across national borders or across the customary territorial borders of different communities within a nation state.
Models under discussion with regard to the intellectual property side of the debate include defensive protection models, such as digital libraries and databases of traditional knowledge and traditional cultural expressions. These can be linked up to the intellectual property offices of other nations to avoid the granting of intellectual property rights. India has successfully used its Traditional Knowledge Digital Library to prevent patenting of its traditional knowledge abroad. Copyright, however, does not depend on registration, so that the preventive use of databases to prevent misappropriation of traditional cultural expressions is more difficult.
There is furthermore an increasing introduction of the principles of ‘prior informed consent’ and ‘equitable benefit sharing’ with traditional knowledge holders, in particular in laws regulating access to genetic resources and associated traditional knowledge. In addition to such laws and documentation efforts at national level, some countries now also use the inventories and listings foreseen in the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage to lay claims to culture and heritage. Here, it is important to pay close attention to the provisions on international cooperation of the Convention, which urge countries to cooperate at the bilateral, subregional, regional and international levels (Article 19) and the possibility of a joint request by two or more State Parties for international assistance for the safeguarding of intangible cultural heritage (Article 23). In the case of the Indonesia-Malaysia disputes, for example, consideration was given to referring such a case to an Eminent Persons Group formed to mediate in conflicts between the two countries. An informal bilateral agreement for similar purposes was also mentioned.Footnote 110 If more comprehensive traditional knowledge and traditional cultural expression laws and perhaps even international protection becomes available, success in this field still depends strongly on the cooperation of local and indigenous communities. This in turn will depend on the effectiveness of the equitable benefit-sharing mechanisms and on the degree to which such local stakeholders feel that their interests are effectively represented in national level laws.
