ZHONGNAN UNIVERSITY OF ECONOMICS AND LAW

MASTER DEGREE THESIS

PROTECTION OF EXPRESSIONS OF FOLKLORE ACCORDING TO

COPYRIGHT LAW IN INDONESIA
印度尼西亚版权法对民间文学作品的保护

Author’s Name : Rachmadhini Kurnia Sari Riali 刘怡君

Student ID : 201942260117
Major : Intellectual Property Law
School : Law School
Supervisor’s Name : Huang Yuye 黄玉烨

Date of Completion : 25th May 2021

 RECOMMENDATION FORM OF GRADUATE THESIS ADVISOR

I as the advisors of the Graduate thesis entitle “Protection Of Expressions Of Folklore

According To Copyright Law In Indonesia 印度尼西亚版权法对民间文学作品的保护”

which drafted and arranged by author as a part of obtaining Master of Law degree from Faculty
of Law, Zhongnan University of Economics and Law, and has been examined and declared
that this Graduate Thesis is feasible to be examined in the Graduate Thesis Oral Examination.

Wuhan, 25th May 2021

Huang Yuye 黄玉烨

Principal Advisor

ii
 Author Statement
The thesis is written by me under the guidance of my supervisor. There is no plagiarism and
other violations of ethics, academic standards and other violations. All the individuals and
collectives that have make important contribution to this thesis have been marked clearly.
Result of the laws that caused solely by this thesis will be undertake by my own.

Author Signature:
Date: 2021.05.25

Copyrights
I am fully aware of the collection, storage and use of the thesis requirements.
I would like to submit my dissertation, the printed and electronic versions, to Zhongnan
University of Economics and Law. I agree that the university can save the dissertation in
printed and electronic versions, or can use photocopies, small prints, digital or other copying
methods to save the thesis.

I agree that some or whole contents of the dissertation can be issued and included in the
“Retrieval and Reading Service System” of the university, but for non-profit purposes only.

Author Signature:
Date: 2021.05.25

i
 PROTECTION OF EXPRESSIONS OF FOLKLORE ACCORDING TO
COPYRIGHT LAW IN INDONESIA

印度尼西亚版权法对民间文学作品的保护

Rachmadhini Kurnia Sari Riali

May 2020

Submitted to Zhongnan University of Economics and Law in partial fulfilment of the

requirement for the degree of Master of Law

ii
 ABSTRACT

At first, copyright law tends to be the only suitable approach for the protection of TCE/EoF
where those TCE/EoF satisfy the criteria or may be categorized as copyright works. While the
Copyright Law system has been in place to protect folklore since 1982, there are still numerous
violations committed by someone who not the original owner of the TCE/EoF. The purposes
of this research are about discovering and analyzing what criteria is can be applied to protect
the Expressions of Folklore, the forms of protection and how to apply the protection provided
by copyright law for Expressions of Folklore in Indonesia.
In recent decades, there has been an increase in the commercial exploitation or
appropriation of Expressions of Folklore by entrepreneurs who have no connection with the
communities to which the Expressions of Folklore belong. In most cases, the communities who
were the custodians or preservers of the Expressions of Folklore do not enjoy the economic
benefit or share the returns from such unauthorized exploitation by persons not belonging to
the communities.
This research is a Normative Legal Research, normative legal research uses what is written
in-laws and regulations (law in books), or the law is conceptualized as a rule or norm that is
regulated or a benchmark of behaviour. The approaches taken in this study are derived from
the comparative method, literature, and normative juridical studies that refer to the norms in
the laws that apply in International Law and other countries.
Subsequently, this research will consist of 5 chapters; chapter 1 begins by discussing the
study's background and importance, literature review, research methodology, and innovation
point of the study. Chapter 2 will discuss the general concept of the study. Chapter 3 and
Chapter 4 will be developed further discussion about the protection of folklore expression at
the international level, a case study on the protection of Expressions of Folklore in Indonesia,
and legal protection of Expressions of Folklore under copyright law in Indonesia will discuss
more thoroughly in Chapter 4. Finally, Chapter 5 will discuss the conclusion and suggestion of
the analysis in the previous chapter.

Keywords: Protection of Folklore, Expressions of Folklore, Copyright Law, Intellectual

Property, Indonesia.

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 ACKNOWLEDGMENTS

First of all, I must express my sincere gratitude Allah Subhanahu Wa Ta'ala, the Most
Gracious and the Most Merciful, all praises to Allah that has blessed me with good health,
knowledge, guidance, spirit, and strength so that I could finally finish my Master's thesis.
First and foremost, I would like to thank my supervisor, who has acted as my Supervisor and
has given me knowledge and ideas while writing this Master's Thesis. Her wisdom, expertise,
and guidance have been invaluable to me in completing this Master's Thesis and her patience
in supervising me while writing this Master's Thesis; without her support, I am not sure that it
would have come to fruition.
My special thanks are dedicated to my family, my number one support system. To my
mama, Ellyanis, my sisters and brother, Rahmadhyta Riali, M. Dimas Riali, and Rahmadiva
Riali, also my grandfather, thank you for supporting me in every step I take, your support is
what guides me when times are tough, thank you for all the prayers, thank you for being the
best family I could ever ask. And to my papa, Trisno Riali, even he is not here with us anymore,
I know he will always support me and will be very proud of me.
Thanks, must also go to Belt and Road Scholarship. Thank you so much for giving me this
opportunity and for considering me for this Scholarship. It is an honor for me to have been
selected for this Scholarship, also thank you to all of the teachers, their teaching, their beliefs,
and their contribution helped me a lot during this time when I was a student at Zhongnan
University of Economics and Law.
Furthermore, to my beloved Indonesian friends in Zhongnan University of Economics and
Law, Pak Arief, Kak Teuku Agusti, Michael Setiawan, Bu Desi, who always cook for me, Mas
Dani Rudianto and Pak Misbah, you guys helped me a lot, you guys color my life in Wuhan
and makes it remarkable, to my very best friend Wiwin Widianingsih thank you for always
support me in any situation and thank you for making ordinary moments extraordinary. For my
BBF School Life squad (Yossy) Josilda Ndreaj, (Cing) Cing Lian Huai, and (Ying)
Chaleunsook Boonkhong, I'll be forever grateful. Thank you for being my friend; you have
filled my life with pleasure and amusement and spread so many colors around it. You are the
kind of friend who makes the good times even better and the hard times a whole lot easier.
And, for friends in arms IPL 2019, thank you to all of you guys for the love, support,
laughter, tears, experiences, and lessons that we shared together will always be remembered, I
hope you all the best in the future, and I hope to meet you guys again. And to all people whom
I appreciate their presence in my life, which I cannot mention one by one, thank you all.

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 Table of Contents
RECOMMENDATION FORM OF GRADUATE THESIS ADVISOR ........................... ii
ABSTRACT ............................................................................................................................ iii
ACKNOWLEDGMENTS ......................................................................................................iv
ABBREVIATIONS ............................................................................................................... vii
INTRODUCTION.................................................................................................................... 1
CHAPTER 1 BACKGROUND ............................................................................................... 6
1.1. Brief Explanation About Protection of Expressions of Folklore .......................... 6
1.2. Importance of the Study ......................................................................................... 10
1.3. Literature Review .................................................................................................... 11
1.4. Research Methodology ............................................................................................ 23
1.4.1. Research specifications .................................................................................... 24
1.4.2. Problem Approach ........................................................................................... 24
1.4.3. Legal Materials................................................................................................. 25
1.4.4. Procedures of legal materials collection ......................................................... 25
1.4.5. Data analysis methods ..................................................................................... 26
1.5. Innovation Point ...................................................................................................... 27
CHAPTER 2 EXPRESSIONS OF FOLKLORE ................................................................ 28
2.1. General Concept of Expressions of Folklore ........................................................ 28
2.1.1. Understanding of Expressions of Folklore .................................................... 28
2.1.2. Expressions of Folklore and Intellectual Property ....................................... 35
2.1.3. The Necessity of the Protection of Expressions of Folklore ......................... 43
2.2. The Implementation of Expressions of Folklore Protection in Indonesia ......... 46
CHAPTER 3 PROTECTION OF EXPRESSIONS OF FOLKLORE FROM
INTERNATIONAL PERSPECTIVE .................................................................................. 51
3.1. Legal Protection of Expressions of Folklore From International Perspective .. 51
3.1.1. The use of the Rome Convention, Phonograms and Satellites Conventions
for an indirect Protection of certain Expressions of Folklore .................................... 61
3.1.2. WIPO-IGC Discussion on Protection of Expressions of Folklore ............... 63
3.1.2.1. The IGC’s Objectives and Principles ............................................................. 63
3.1.2.2. The ongoing WIPO-IGC discussion on Protection of Expressions of
Folklore …………………………………………………………………………………67
3.2. The Global Protection of Expressions of Folklore ............................................... 78
3.2.1. Protection of Expressions of Folklore in:....................................................... 82
3.2.1.1. China ................................................................................................................. 82
3.2.1.2. Morocco ............................................................................................................ 91
3.2.1.3. Australia............................................................................................................ 97
3.2.1.4. New Zealand ................................................................................................... 101
3.2.2. International debates on Protecting Expressions of Folklore .................... 105
3.3. Protecting Expressions of Folklore Under Copyright ....................................... 109
3.3.1. Copyright and Public Domain ...................................................................... 121
3.4. The need for Sui-Generis Law ............................................................................. 127

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CHAPTER 4 CURRENT SITUATION ON LEGAL PROTECTION OF EXPRESSION
OF FOLKLORE UNDER INDONESIAN COPYRIGHT LAW .................................... 133
4.1. Indonesia’s Regulations on Protection of Expressions of Folklore .................. 133
4.2. Economic Exploitation of the Expressions of Folklore ...................................... 137
4.2.1. Case Study of Indonesia Traditional Dance “Reog Ponorogo” ................. 139
4.3. The Role of the Government in Providing Legal Protection of Expressions of
Folklore ............................................................................................................................. 142
4.3.1. The Role of Indonesia’s Government to Protect the Expressions of Folklore
………………………………………………………………………………..142
4.3.2. Preservation of Expressions of Folklore in Indonesia ................................ 149
4.4. Protection of Expressions of Folklore in Regions/Districts in Post-Law No. 28 of
2014 Concerning Copyright ............................................................................................ 152
4.5. Dynamics of the Problem of Protecting Expressions of Folklore Under
Copyright Law .................................................................................................................. 160
4.5.1. Factors That Cause Weak Legal Protection of Expressions of Folklore .. 160
4.5.1.1. Failure of Copyright Law to Protect Expressions of Folklore ................... 160
4.5.1.2. There Are No Implementing Regulations .................................................... 161
4.5.1.3. Related right Arrangements Neglected ........................................................ 163
4.5.1.4. Obstruction of the formation of the PTEBT bill ......................................... 164
4.5.1.5. Originality and Fixation Requirements are not Fulfilled .......................... 170
4.6. Enforcement mechanism ...................................................................................... 172
CHAPTER 5 CONCLUSION AND RECOMMENDATIONS OF PROTECTION OF
EXPRESSION FOLKLORE IN INDONESIA ................................................................. 181
BIBLIOGRAPH ................................................................................................................... 187

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 ABBREVIATIONS

ALRC Australian Law Reform Commission

BPNB Badan Pelestarian Nilai Budaya
DJKI Direktorat Jenderal Kekayaan Intelektual
DPR Dewan Perwakilan Rakyat
EBT Ekspresi Budaya Tradisional
GATT General Agreement on Tariffs and Trade
GBHN Garis – Garis Besar Haluan Negara
GRTKF Genetic Resources, Traditional Knowledge and Folklore
ICH Intangible Cultural Heritage
ICHCAP International Information and Networking Centre for Intangible Cultural
Heritage in the Asia-Pacific Region
IGC Intergovernmental Committee
INDB Internalisasi Nilai dan Diplomasi Budaya
INSAP National Institute of Sciences of Archaeology and Heritage
IPR Intellectual Property Rights
LMC Like – Minded Country
NAASP New Asian African Strategic Partnership
PTEBT Pengetahuan Tradisional dan Ekspresi Budaya Tradisional
RUU Rancangan Undang – Undang
SCCR Standing Committee on Copyright and Related Rights
TCE/EOF Traditional Cultural Expressions/Expressions of Folklore
TRIPS Trade-Related Aspects of Intellectual Property Rights
TK Traditional Knowledge
UN United Nations
UNCED United Nations Conference on Environment and Development
UNESCO United Nations Educational, Scientific and Cultural Organization
UNIMA Union Internationale De La Marionnette
UUCB Undang – Undang Cagar Budaya
UUHC Undang – Undang Hak Cipta
WCH World Cultural Heritage
WIPO World Intellectual Property Organization

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 INTRODUCTION

Before we focus on this research’s core problem, which The Protection of Folklore
According to Copyright Law in Indonesia, let the researcher discuss for a moment about
Traditional Knowledge and the difference between traditional knowledge and Expressions of
Folklore, traditional knowledge still looks very broad, because the use of the term traditional
knowledge is used for all terms that are included in intellectual works belong to the industrial
field.
In connection with this broad definition of traditional knowledge, there is another term
known as traditional cultural expressions (Folklore) (WIPO I. B., 2008, p. 4). The term of
Folklore is intended to narrow the scope of traditional knowledge to facilitate this research
discussion.
Traditional knowledge is included in the scope of intellectual work from the ideas, notion,
concept, or discoveries of a group of people in a country. The scope of traditional knowledge
itself refers to tradition-based literature, artistic or scientific works, performances, inventions,
scientific discoveries, design, brands, names and symbols, undisclosed information, and all
other tradition-based innovations and creations caused by intellectual activity, in industrial,
scientific, literary or artistic fields. Tradition–based ideas, for example, invention, design, and
cultural expressions that have generally been conveyed from generation to generation, are
considered to be related to a particular society or region, and have been developed non-
systematically, and are continuously changing environment (WIPO, 2002).
Thus, traditional knowledge does not only require recognition of the discovery of ideas or
concepts and its dissemination and utilization by other parties.
Discussion about traditional knowledge has begun to develop from year to year long with
legal and policy reforms, such as agricultural development, biological diversity, and
intellectual property.
Traditional knowledge itself has numerous subsets, some of which are designated by
expressions such as "indigenous knowledge," "folklore," "traditional medical knowledge."
Unlike a common understanding, traditional knowledge is not generally ancient. It is evolving
all the time, as individuals and societies face the challenges of their social and physical
surroundings. In many ways, therefore, traditional knowledge is contemporary knowledge.
Traditional knowledge is integrated into traditional knowledge systems, built and retained in
their local context by each culture.

1
 Meanwhile, indigenous people generally have their understanding of traditional
knowledge, which can be concluded as follows (Purba A. , 2005, p. 29):
1. Traditional knowledge is the result of practical thinking based on teaching and
experience from generation to generation
2. Traditional knowledge is a knowledge from indigenous and local communities
3. Traditional knowledge cannot be separated from the spiritual, cultural, and language of
one indigenous of local communities
4. Traditional knowledge provides credibility to the one indigenous of local communities

The terms "Traditional Knowledge and folklore are frequently used as if they are discrete
categories of cultural-specific knowledge since "folk" means people and "lore" is defined in
the Oxford Dictionary as "a body of traditions and knowledge on a subject or held by a
particular group."
Posey and Dutfield have summarised a range of categories and embodiments of Traditional
Knowledge and Folklore. It is noteworthy that most of these are related to the environment
(Posey D. a., 1996, pp. 12-13):
1. Knowledge of current use, previous use, or potential use of a plant and animal species,
as well as soils and minerals
2. Knowledge of preparation, processing, or storage of useful species
3. Knowledge of formulation involving more than one ingredient
4. Knowledge of individual species (planting methods, care, selection criteria)
5. Knowledge of ecosystem conservation (methods of protecting or preserving a resource
that may be found to have commercial value, although not explicitly used for that
purpose or other practical purpose by the local community or the culture); and
6. Classification systems of knowledge, such a traditional plant taxonomies
7. Renewable biological resources (e.g., plants, animals, and other organisms) that
originate in indigenous lands and territories
8. Cultural landscape including sacred sites
9. Non-renewable resources (e.g., rocks and minerals)
10. Handcrafts, works of art, and performances
11. Traces of past cultures (e.g., ancient ruins, manufactured objects, human remains)
12. Images perceived as "exotic," such as the appearance of indigenous people, their homes
and villages, and the landscape; and

2
 13. Cultural property (i.e., cultural or spiritual property, such as important cultural artefacts
that may be deemed sacred) is not commodifiable by the local people.

Traditional knowledge generally refers to knowledge related to the environment rather than
knowledge related to, for example, works of art, crafts and other artistic works and expressions
that appear to be regarded as aspects of folklore. Thus according one expert, traditional
knowledge is a structure of knowledge built up by a community of people over centuries living
in harmony with nature. It comprises a classification system, a series of observational findings
on the local environment, and a method of self-management for resource use (Johnson, 1992,
pp. 3-4).
The definition of traditional knowledge is contained in Article 8 J Traditional Knowledge,
Innovations, and Practices of the Convention on Biological Diversity (CBD) stated that:
“Traditional knowledge refers to the knowledge, creativity and practice of local or indigenous
communities global. Based on the experience acquired over the decades and adapted to the
local culture and environment, cultural wisdom is conveyed down through many generations.
It tends to be held together and takes the form of tales, poems, myths, proverbs, traditional
traditions, beliefs, customs, community rules, native language, and agricultural activities, like
plants and animals. Traditional expertise is mostly practical, especially in areas such as
agriculture, fisheries, hygiene, farming, and forestry”.
There is not yet accepted definition of traditional knowledge at the international level, and
it can be said that:
- Traditional knowledge is a general sense embraces the content of knowledge itself as
well as traditional cultural expressions, including distinctive signs and symbols
associated with traditional knowledge
- Traditional knowledge as such, in particular the knowledge resulting from intellectual
activity in a traditional context, and includes know-how practices, skills, and
innovations
- Traditional knowledge can be found in a wide variety of contexts, including
agricultural, scientific, technical, ecological, and medical knowledge, as well as
biodiversity-related knowledge

As Folklore, it is worth noting that Folklore predates traditional knowledge as a subject for
discussion at the international level, going back to the 1970s when it was soon a copyright-
related matter. According to Michael Blakeney, the expression of traditional knowledge

3
accommodates those observers' concerns who criticize Folklore's narrowness. However, it
significantly changes the discourse. Folklore was typically discussed in copyright or copyright-
plus terms (WIPO, 2002).
UNESCO and WIPO were the two organisations where discuss about the protection of
TCE/EoF, the involvement of UNESCO is, of course, due to its interest in culture. In the
definition given by UNESCO in the guidelines on the protection of traditional culture and
expressions of folklore implemented by the all of the members of the organization in 1989:
"The folklore or traditional and modern culture is the entirety of the traditional works of a
cultural society, articulated by a group of individuals and accepted as expressing their cultural
and social identity, which are conveyed verbally, by imitation or through other means. Its types
include, but are not limited to, language, literature/poetry, music, dance, sports, folklore,
traditions, practices, crafts, architecture, as well as other arts."
Traditional knowledge is used in a more focused way to refer not to the form of expression
but the content or substance of traditional know-how, skills, and learning. On the other hand,
Expressions of Folklore refers to tangible and intangible forms in which traditional knowledge
and cultures find expressions or are communicated and manifested. Expressions of Folklore
include music, performances, symbols, words, marks, signs, designs, crafts, architecture,
poetry, and narratives.
Traditional knowledge may rightly be considered integral and indissoluble parts of a single,
invisible holistic heritage of a people or community. However, when it comes to specific IP
protection, policy debate and legislative activity have generally distinguished Folklore
expressions as distinct areas of protection. It is because the protection of Expressions of
Folklore is more in copyright and related rights.
In the international legislative framework in which certain Expressions of Folklore and
performances of Expressions of Folklore are already protected, a non-IP policy context also
held a Convention and programs relating to the safeguard of intangible cultural heritage and
the promotion of cultural diversity1.
Innovations based on traditional knowledge may benefit from patent, trademark, and
geographical indication protection or be protected as a trade secret or confidential information.
However, traditional knowledge with ancient roots and is often oral is not covered by
conventional IP systems (WIPO, 2020).

1
Loc. Cit. WIPO/GRTK/KIN/08/1

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 Protecting traditional knowledge and Folklore becomes essential when faced with its
characteristics and uniqueness. There are several reasons for the need to develop protection for
traditional knowledge, including consideration of justice, conservation, preservation of culture
and traditional practices, prevention of expropriation by unauthorized parties of traditional
knowledge components, and Folklore and development the use of traditional knowledge
interests. Protection of traditional knowledge and Folklore plays a positive role in supporting
these communities in preserving their traditions.

5
 CHAPTER 1

BACKGROUND

1.1. Brief Explanation About Protection of Expressions of Folklore

The protection of Folklore has been an issue on the international agenda since the 1970s.
The World Intellectual Property Organisation (WIPO) began to explore "expressions of
folklore" back in 1978. It convened three meetings of experts in cooperation with the UNESCO
that led to the adoption of the "Model Provisions for National Laws on the Protection of
Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions" in 1982
("the Model Provisions").
UNESCO General Conference implemented the "Recommendation for the Safeguarding
of Traditional Culture and Folklore." in 1989 and also a collaboration formed by WIPO and
UNESCO to protect TCE/EoF to held a forum together, namely the UNESCO/WIPO World
Forum for the Conservation of Folklore that was held in Phuket, Thailand, in April 1997.
Following the Conference, WIPO and UNESCO were invited to hold a regional consultations
on the preservation of TCE/EoF for developing countries.
Any of the four regional consultations adopted Resolutions or Recommendations, including
suggestions submitted to the WIPO and UNESCO and the respective regions' of the national
governments for future work. Four activities for further work in this area are collectively
specified:
(i) the provision of legal and technical guidance for the preservation of TCE/EoF;
(ii) comprehensive training in the classification, reporting or
documentation (including standards documentation), conservation and propagation of
TCE/EoF;
(iii) the provision of the appropriate financial resources to specific regional and national
centers and institutions; and
(iv) the establishment of an efficient international regime for the preservation of TCE/EoF;
Indonesia is one of the world's largest multicultural countries; this can be seen from
Indonesia's socio-cultural and geographic conditions, which are complex, diverse, and
extensive. "Indonesia consists of a large number of ethnic groups, cultures, religions, and
others, each of which is plural (plural) and at the same time heterogeneous" of various kinds
(Kusumohamidjojo, 2000, p. 45). As a plural and heterogeneous country, Indonesia has the

6
potential for multi-ethnic, multicultural, and multi-religious wealth, all of which can build a
sizeable multicultural nation-state.
As a country that has abundant genetic resources, is multi-ethnic, as well as diverse
cultures, the Indonesian government is very aware of Indonesia's high interest in the issue of
protecting TCE/EoF. This awareness has prompted the Government of Indonesia to actively
involve itself in discussions related to efforts to protect the TCE/EoF at both the international
and regional levels.
Apart from being actively involved in international discussions and meetings related to
TCE/EoF, the Government of Indonesia has also officially ratified International regulations
regarding the recognition of traditional knowledge through Law Number 5 Year 1994
concerning Ratification of the United Nations Convention on Biological Diversity (State
Gazette of the Republic of Indonesia Year 1994 Number 41) and Law Number 11 Year 2013
concerning Ratification of the Nagoya Protocol concerning Access to Genetic Resources and
Sharing Fair and Balanced Profit Arising from Their Utilization (State Gazette of the Republic
of Indonesia Year 2013 Number 73).
For Indonesia's people, protecting the TCE/EoF is considered more urgent because
nowadays, the TCE/EoF has become one of the commercial objects, both in industry and trade.
Moreover, all cultural-based wealth on TCE/EoF has very high economic value.
The results of Peter Jaszi's research show that what is the concern of Indonesia indigenous
people, especially among traditional artists and community group leaders, is the problem of a
recognition that they are the keeper and the original owner. In their opinion, it is necessary to
protect the TCE/EoF so that ownership of the TCE/EoF of Indonesian people is not recognized
without permission by other countries (Jaszi, 2010).
Ownership claims on the TCE/EoF by foreigners have hurt them; they worry that this could
lead to misappropriation, the destruction of cultural values , and exploitation by foreigners.
Furthermore, for the majority of Indonesians, the TCE/EoF has become their way of life.
TCE/EoF teaches traditions, wisdom, values, and collective knowledge, which are passed
down to the children and grandchildren through legends, arts, and ceremonies, which gradually
shape the Indonesian nation's social norms and life order.
The loss of TCE/EoF also means the loss of social norms and Indonesian traditions, which
can have social implications, such as tensions or conflicts between communities, which are
common in multi-ethnic countries, such as Indonesia.
Foreign companies enjoy the economic potential of the TCE/EoF owned by the Indonesian
people. In several mass media published in Indonesia, there were reports of several utility

7
patents and design patents were stolen by a foreign company which is Balinese sculpture
designs and batik designs, and it can bring economic loss for Indonesian people (Sardjono A.
, 2010, pp. 104-105).
There are also several cases of misappropriation of Indonesian TCE/EoF, including Batik,
Angklung, the traditional Reog Ponorogo dance from Ponorogo, East Java, the local song Rasa
Sayange from Maluku, the Pendet dance from Bali, which has become an icon of the
Indonesian nation. The manuscript of the folk tale I La Galigo from Bugis and British citizen
Christopher Harrison who own Harrison & Gil, create a catalogue in which there are drawings
of Jepara carving designs. The company has registered the catalogue with the IPR office in
order to obtain copyright protection. Later, these pictures appeared on websites used by the
Dutch to promote their business activities as furniture traders. The British filed a lawsuit
against the Dutch for copyright infringement because they had published their "own" carvings
design in the catalogue (Tempo.co, 2020).
The Indonesian government has recognized the importance of intellectual property in
Indonesian TCE/EoF since they enacted the 1982 national Copyright law (see Article 10 of
Law No. 6/1982 on Copyright. Currently, the regulation regarding TCE/EoF in Indonesia is
included in the Copyright Law Number 19 Year 2002, hereinafter referred to as UUHC 2002.
Article 10 UUHC 2002, which is entitled "Copyright to Works of Unknown Authors,"
stipulates:
(1) The State shall hold the Copyright for works from prehistoric relics, historical and other
national cultural objects.
(2) The State shall hold the Copyright for folklores and works of popular culture commonly
owned, such as stories, Javanese historical text (babad), legends, folk tales, epics,
songs, handicrafts, choreography, dances, calligraphies, and other artistic works.
(3) To publish or reproduce the works as referred to in paragraph (2), any person who is
not a citizen of Indonesia shall seek permission from the institution related to the matter.
(4) Further provisions regarding Copyright that are held by the State, as referred to in this
Article, shall be regulated by Government Regulation.

Protection of TCE/EoF was also found in Article 13 of the Copyright Bill 2010. In UUHC
2002, it was stated that the country holds the copyright to Indonesia's cultural objects, which
includes stories, Javanese historical text (babad), legends, folk tales, songs, handicrafts,
choreography, dances, calligraphies, and other artistic works to protect it from a foreigner who

8
would use it without permission. Meanwhile, the Copyright Bill 2010 states that the country
holds copyright over the TCE/EoF of Indonesia representing its custodian.
However, until now, there has not been a single Government Regulation regulating
TCE/EoF. In the UUHC 2002, which is the only law regulate about TCE/EoF, it does not
explain how to protect TCE/EoF. Even though, as the only national law that regulates
TCE/EoF, in UUHC 2002, there are only two articles that mention TCE/EoF, which is general
provisions Article 1 number 10 and Article 10 Paragraph (2). UUHC 2002 is very inadequate
in protecting TCE/EoF because, in the UUHC, there is very little regulation on TCE/EoF.
The recent dispute with Malaysia over several Indonesian TCE/EoF has forced the
government to become more severe in protecting the Indonesian TCE/EoF. Since 2008, the
government has begun drafting sui generis to protect the use of existing intellectual property
in the Indonesian TCE/EoF. The bill, entitled the Protection and Utilization of Intellectual
Property Wealth of Traditional Knowledge and Expression of Traditional Culture (PTEBT
Bill), was included in the National Legislative Program (Prolegnas) 2010-2014.
The PTEBT Bill describes Traditional Knowledge as an intellectual work in the field of
technology and knowledge that includes elements characteristic of the traditional heritage
created, formed and preserved by indigenous and local communities. And the term of folklore
the PTEBT Bill replaced the term folklore with the term TCE with the following concept of
intellectual work in the field of art, including literature expressions that include elements of the
traditional heritage created, formed and preserved by indigenous and local cultures.
The PTEBT Bill was formulated along with Indonesian participation in international
forums held to obtain global recognition and also to protect Indonesian TCE/EoF. The
Indonesian government hosted the Asia-Africa Conference on the Protection of Traditional
Knowledge, TCE/EoF and Genetic Resources took place in Bandung, 2007. The Asia-Africa
Forum is focused on the Declaration on the New Asian African Strategic Partnership (NAASP),
which was previously accepted in Bandung on 24 April 2005.
In 2009, the Government conduct a conference of the Like-Minded Countries (LMCs) on
the International Legal Instrument for the Protection of Genetic Resources, Traditional
Knowledge and TCE/EoF in Bali, Indonesia to achieve mutual agreement among developing
countries in its negotiations with developed countries at the meeting held by the WIPO-IGC on
Intellectual Property and Genetic Resources, TK and TCE/EoF. The Government is also
involved in all meetings of the WIPO-IGC.
Then how Indonesian Law and Regulation protect their Folklore? The weaknesses of the
Indonesian Copyright Law are related to the meaning of granting permission. Who is the

9
agency authorized to give a permit to use of particular TCE/EoF? Furthermore, what benefits
will the TCE/EoF owner community receive from the permission given by copyright law?
Conceding that the permit system leads to royalties from the utilization, how do they distribute
the royalties to the people who own the TCE/EoF? Furthermore, how international law protects
their TCE/EoF from foreign misappropriation of expressions of Folklore?
This research will also discuss TCE/EoF protection in Indonesia by looking at several
countries such as Australia, New Zealand, China, and Morocco why; the researcher chooses
Australia, New Zealand, China, and Morocco. The reasoning is straightforward. Australia and
New Zealand represent developed countries, China and Morocco represent other developing
countries, including Indonesia.
As one of the crucial issues at this time regarding the protection of TCE/EoF and given the
importance of protection of cultural assets, the researcher is interested in trying to analyze in-
depth and carefully about the legal protection of TCE/EoF in Indonesia and the implementation
and mechanism of the Indonesia Copy Right Law in protecting the TCE/EoF.

1.2.Importance of the Study

This research was conducted concerning the inclination and purpose to be achieved, that is
to say:
Based on the formulation of the subject matter, this research has the general objective of
collecting data on the protection of TCE/EoF according to copyright law in Indonesia, and in
order to formulate legal protection measures, particularly in the scope of protection of
TCE/EoF in international level and Indonesia legal perspective.
As for the objectives of holding this research is to contribute to the improvement and
development in the field of law, especially in the field of intellectual property rights law
regarding TCE/EoF, also for the literature and scientific information, considering that the
discussion on intellectual property rights, especially in protection of TCE/EoF is a relatively
new topic in the application of the law in Indonesia and the worldwide and examining the
constraints and obstacles that are faced in implementing Copyright Law to protect TCE/EoF
and analyzing protection mechanisms to be applied to indigenous peoples to continue enjoying
the economic benefits of TCE/EoF.
This study's results are expected to be a useful input for anyone who read this research
concerning the protection of TCE/EoF according to copyright law. In addition, this research is
also expected to provide a broader insight to the legal community regarding the application of

10
the Copyright Law in protecting TCE/EoF, along with international and local protection
mechanisms that can be applied in order to protect TCE/EoF, so that in the future it can
overcome obstacles that hinder the provision of optimal protection in the IPR sector, especially
for the benefit of local communities.
With more in-depth insight, it is hoped that society will realize the importance of the
economic potential in the TCE/EoF, empower adequate efforts to prevent misappropriation by
foreigners, and bring economic benefits to the interests of local communities in the context of
advancing the nation's culture.

1.3.Literature Review
The purpose of intellectual property rights is to encourage new creations, including
technology, artwork, and inventions, that might increase economic growth.
The term "Intellectual Property Rights" or often abbreviated as IPR, refers to the legal rights
granted to protect human intellect's creations, including creativity concepts, inventions,
industrial models, trademarks, songs, literature, symbols, names, and brands (Helpdesk, 2020).
Intellectual Property Rights do not differ from other property rights. They allow their owner
to ultimately benefit from his/her product, which was initially an idea that developed and
crystallized. They also entitle him/her to prevent others from using, dealing, or tampering with
his/her product without prior permission from him/her. He/she can, in fact, legally sue them
and force them to stop and compensate for any damages.
Intellectual works that have been given exclusive rights are the "property of the owner" to
create the market (demand and supply). It arises because the implementation of the IPR system
meets the needs of the community at large. In summary, IPR is a driver for economic growth
(Purba A. Z., 2002, pp. 14-15).
As concluded below by an economist, Keith E. Maskus (Maskus, 2000, p. 170):
"I claim that Intellectual Property Rights can play an important and positive role in
economic advancement, with the role becoming larger as economies grow richer. Even among
poor economies, however, IPRs can be an important condition of business development, so
long as they are well structured and accompanied by appropriate collateral policies. This is the
fundamental challenge as economies adopt stronger IPRs under the new global system."
Regulations regarding Intellectual Property Rights (IPR) are made to respect and appreciate
the work of the human brain, as material rights, rights to objects that come from the work of
the brain, the work of the ratio, the results of the work of the rational human ratio (Saidin, 2004,

11
p. 9). IPR is the right to enjoy the result of intellectual creativity economically. Protection of
IPR is carried out to respect the creator's intellectual results, including traditional creativity
because traditional creativity is still the human brain's work, which must be respected and
respected and receive the same protection by IPR.
Initially, Copyright Law appears to be the most suitable solution for protecting the
Expressions of Folklore, where such Expressions of Folklore meet the requirements or can be
categorized as copyright works
Intellectual property is divided into two points, namely industrial property rights, and
copyrights. The industrial property rights are further divided into several rights which include
Patent Rights (Patents and Simple Patents), Trade Secret, Trademark, Industrial Design, Plant
Variety Protection, Layout Design of an Integrated Circuit, Geographical Indications
(Suprapedy, 2008, p. 14)
Copyright is a branch that is considered to protect TCE/EoF. The meaning of TCE/EoF is
a collection of traditional creations, whether made by groups or individuals in society, which
shows their social and cultural identity based on standards and values that are said or followed
from generation to generation 2. However, several developing countries' attempts to protect
TCE/EoF creations were done within the copyright laws framework and lacked uniformity in
the nature and scope of protection3.
Based on the above description, Copyright has its position besides other Intellectual
Property Rights incorporated in Industrial Property Rights. It can also be said that copyright is
an immaterial right created by the legislature. Its territorial scope is, therefore, logically limited
to the territory of the stated concern.
Furthermore, as an immaterial right, it is, in essence, a negative right, for example, the right
to stop others from reproducing the works or from present it to the public, such immaterial
negative rights need an enforcement mechanism to come into practice, and that mechanism
necessarily has to have the same territorial scope (Torremans, 2007, p. 461). So it is entirely
appropriate if copyrights are said as an exclusive right in addition to other Intellectual Property
Rights.

2
See the explanation of Indonesian Law Number 19 Year 2002 regarding Copyright, Article 10 paragraph (2).
3
Those developing countries which made the first attempts to regulate the use of folklore creation tried to
provide protection in the framework of their copyright laws are: Tunisia, 1967 and 1994; Bolivia, 1968 and
1992; Chile, 1970; China, 1990; Iran 1970; Morocco, 1970; Algeria, 1973; Senegal, 1973; Kenya, 1975 and
1989; Mali, 1977, Burundi, 1978; Cote d'lvoire, 1978; Sri Lanka;1979; Guinea, 1980; Barbados, 1982;
Cameroon, 1982; Colombia, 1982; Congo, 1982; Madagascar, 1982; Rwanda, 1983; Benin, 1984; Burkina
Faso,1984; Central African Republic, 1985; Ghana, 1985; Dominican Republic, 1986; Zaire, 1986; Indonesia,
1987; Nigeria, 1988 and 1992; Lesotho, 1989; Malawi, 1989; Angola, 1990; Togo, 1991; Niger, 1993; Panama,
1994; Vietnam, 1994. The Protection of Expressions of Folklore: The Attempt at International Level.

12
 The more specific element to copyright is that the right usually is only granted to nationals
of the State concerned. This element is not at the core area, but it works neatly with the core
idea of territoriality when copyright attempts to overcome national borders.
Indeed, what one does find in the international legal framework is the principle of national
treatment4, that obliges foreigners to be treated as nationals when it comes to copyright. The
result of this principle's implementation is that the limitation of copyright to nationals is
overcome and that the State's nationals are granted reciprocal national copyright abroad5.
Indeed, Copyright has been known since the Roman Empire (when the development of
literary works and literature) and China's imperial era (when the paper was first discovered and
used widely). The reference states that the birth of Copyright was strongly influenced by the
shift of oral tradition to the literal tradition.
The term TCE/EoF itself contains various concepts; in a discussion in Jakarta on August
13, 2003, the opinion arose that TCE/EoF contains a broad understanding covering traditional
knowledge such as traditional medicinal knowledge (Danandjaja, 2003). Meanwhile,
according to Michael Blakeney, Folklore is interpreted; differently, Blakeney stated that
TCE/EoF was only covering traditional copyrighted works in the form of literary works,
languages, music, dances, traditional games, myths, ritual ceremonies, customs, handicrafts,
architectural works, and other traditional works, in the forms an integral part of the cultural
heritage of a nation. It is an essential means of social identity, particularly for a developing
country or specific communities.
Blakeney also explained that TCE/EoF did not cover traditional medicine knowledge
(Blakeney, What is Traditional Knoledge? Why Should it be Protected? who Should Protect
it? For Whom, 1999, p. 2).
The phrase "folklore" is difficult to define, because the term "folklore" is not used in Berne
Convention (Stewart, 1989, p. 138). Also, The 1982 WIPO-UNESCO Model Provisions for
National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and
Other Prejudicial Acts (hereinafter referred to as "Model Provisions") do not provide the
definition of "folklore." It is to prevent potential interference with relevant meanings found in
other records or legal instruments relating to TCE/EoF protection. (WIPO, 2020, p. 15).
Nevertheless, "expressions of folklore" are defined in section 2 of the Model Provisions as
follows:

4
Article 51 Berne Convention and Article 3 TRIPs Agreement.
5
Ibid, Torremans.

13
 "Expressions of folklore" are creations composed of distinctive elements of a community's
traditional artistic heritage produced and preserved by a local indigenous community of one
nation or by individuals representing such a community's traditional artistic aspirations, in
particular:
i. unwritten expressions, such as riddles, folk poems, folk stories;
ii. instrumental expressions, such as traditional music instrumentals, traditional songs;
iii. action-based expressions, such as traditional folk plays or dances, and artistic styles
or traditional ceremonies; whether or not reduced to a tangible or material form of
expression, such as:
(a) folk art productions, including designs, drawings/paintings/sketches,
engravings, mosaic, wood carving, pottery, terracottas, metal ware, jewellery
such as pendant cravings or ornament, basket weaving, textiles, carpets,
costumes, and any needlework;
(b) traditional or folk musical instruments;
(c) architectural designs.
It is observed that the term "expressions of folklore" used in the Model Provisions
emphasizes traditional artistic heritage and is community orientated. Out of the four types of
expressions, the first three types of expressions need not be reduced to material form, but the
fourth type of expression needs to.
Copyright protection is available for “literary and artistic works as referred to in the Berne
Convention as amended in 1971”6 . This Convention is applicable only after a process of local
legislation in each Member State. However, even those states that have not ratified it may not
stay untouched by its provisions as it is gaining stronghold as part of international customary
law. This Convention also forms part of TRIPS and is therefore accepted by many countries
that are a part of TRIPS.
The Convention specifies that all literary, artistic and also scientific works are protected,
and there is no limitation on the mode or type of their expression are allowed.

6
Article 2.1 of the Berne Convention stated that: “The expression ‘literary and artistic works’ shall include
every production in the literary, scientific and artistic domain, whatever may be the mode or form of its
expression, such as books, pamphlets and other writings, lectures, addresses, sermons and other works of the
same nature, dramatic or dramatical musical works, choreographic works and entertainments in dumb show;
musical compositions with or without words; cinematographic works to which are assimilated works expressed
by a process analogous to cinematography, works of drawing, painting, architecture, sculpture, engraving and
lithography, photographic works to which are assimilated works expressed by a process analogous to
photography, works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to
geography, topography, architecture or science.” See also Articles 2(3), 2(4) and 2(5) where the requirement to
protect certain other kinds of works is dealt with.

14
 Copyright involves identifying a specific human creators, and traditional cultural
expressions' creators that are often unknown. In their answer to the WIPO questionnaire on
TCE/EoF, the European Community stated that “copyright is dependent on the identification
of the person initiating the work, while folklore is characterized by the identity of the originator
of the tradition or even by the fact that the tradition is the characteristic of a whole
community.”(WIPO, WIPO/GRTKF/IC/3/11 Expressions of Folklore, 2002).
Unfortunately, the Berne Convention gives no relief in overcoming this requirement, since
Article 7.3 states that “the countries of the Union shall not be allowed to protect unknown or
alias works in respect of which it is fair to assume that the creator has been dead for fifty years.”
WIPO use the term “Traditional Cultural Expression/Expression of Folklore (TCEs/EoF)”
to refers to expressions of folklore; WIPO stated that expressions of folklore include dance,
music, names, signs, symbols, performances, ceremonies, architectural forms, handicrafts,
narratives, or any other artistic or cultural expressions.
Commonly, the protection of TCE/EoF is discussed distinctly from the concept of
"traditional knowledge." The term "traditional knowledge" is sometimes used in a narrow sense
as embracing technical know-how such as medical or ecological knowledge. Sometimes, it is
interpreted broadly to refer to technical know-how and traditional expressions like TCE/EoF
7
. Nevertheless, separate consideration of the protection of TCE/EoF is preferred so that such
legal protection can be viewed within cultural policies8. Besides, discussion on TCE/EoF is
likely to lead to the realm of patent law and biodiversity rights. At the same time, TCE/EoF is
usually discussed in the environs of copyright.
TCE/EoF was described in the Tunis Modal Law on Copyright for Developing Countries,
collectively enacted in 1976 by UNESCO and WIPO, as “all scientific, literary, and artistic
work generated on the one national territory by authors assumed to be nationals of certain
countries or by ethnic groups, passed down through generations and representing one of the
essential principles of the traditional cultural heritage.”
Furthermore, the term of "expressions of folklore" was established in the Model
Provisions jointly adopted by UNESCO and WIPO in 1982, and it refers to productions
consisting of distinctive elements of traditional artistic heritage managed and owned by a
local community or by individuals that reflect the artistic expectations of one local community.

7
See "Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions" at the Fifth Session of
the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore (WIPO/GRTKF/IC/5/3) at Annex para 59 available at
http://www.wipo.int/documents/en/meetings/2003/igc/pdf /grtkf_ic_5_3.pdf.
8
Ibid, WIPO, Paragraph 65.

15
 The term "expressions of folklore" instead of "folklore work" was used to distinguish
folklore (expressions) from traditional copyrighted works. In the traditional copyright system,
copyright is granted to individual authors; to get copyright protection, a work must be fixed
and creative; and the protection is limited to a specific period. However, these required
properties can not be satisfied or satisfied insufficiently by, or are unsuitable to, folklore
(expressions). In the Chinese language, the concept of "folklore works" is the same as that of
the "expressions of folklore" or "folklore" and is not restricted to folklore works qualifying for
the protection of the Copyright Law. (Lei, 2001).
The majority of the national laws provide for the protection of what they call "works of
folklore"; some other laws (the laws of Benin, Indonesia, Kenya, Mali, Morocco, Senegal,
Tunisia, and Zaire) refer simply to "folklore." Two of them (the laws of Chile and China) use
the term that the International Bureau of WIPO considers the most appropriate one:
"expressions of folklore." Some national laws (those of Chile, Ghana, Indonesia, Madagascar,
Mali, and Tunisia) do not provide a substantive definition; they mention that what is involved
is a common national heritage. The other laws provide more or less detailed definitions.
The definitions, in general, only cover traditional literary and artistic creations. In recent
decades, there has been an increase in the commercial exploitation or appropriation of
TCE/EoF 9 by entrepreneurs who have no connection with the communities to which the
TCE/EoF belongs. In most cases, the communities who were the custodians or preservers of
the TCE/EoF do not enjoy the economic benefit or share the returns from such unauthorized
exploitation by persons not belonging to the communities.
Sometimes, very little respect and attention were shown to the custodians of the TCE/EoF
there is evidence of indigenous music and dance being sampled by record labels and introduced
to the public as original compositions or choreography through the commercialization
process;10.
Monopolization tendencies can also be seen in the actions of individuals and businesses
who officially record folkloric themes, often turning them into advertisements and industrial
propaganda to discourage anyone from using them. Commercial exploitation is a major source

9
The terms "expressions of folklore" and "traditional cultural expressions" are used as interchangeable
synonyms by the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore and this is reflected in their working documents, for instance
WIPO/GRTKF/IC/5/3, WIPO/GRTKF/IC/6/3 and WIPO/GRTKF/IC/7/4.
10
Babacar Ndoye, a former director of Senegal's Copyright Office, cites the secret of an African folklore
community's and composed by an European composer who orchestrated and recorded the recording as his
original work. The writing was a huge success, but all of the proceeds went to the composer, with little
compensation given to the society where the folklore started. Ndoye, supra note 3, p. 376.

16
of concern because existing cultures may be short-changed or even affected as a result of the
process.
Compared with folklore works, the concept of "intangible cultural heritage" has come from
the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by UNESCO
on October 17, 2003. In China, Article 2 of the Law on the Intangible Cultural Heritage defines
it as various expressions of traditional culture and their related physical things and places,
passed from generation to generation by all ethnic groups, and deemed as constitutive elements
of their cultural heritage by such ethnic groups, including:
i. traditional oral literature and the languages that are used as the vehicle for such
literature;
ii. traditional fine art, calligraphy, music, dance, opera, and acrobatics;
iii. traditional skills, medicines, and calendars;
iv. traditional rituals, festivals, and other folk customs;
v. traditional sports games and entertainments; and
vi. vi. other intangible cultural heritage.

As a country with abundant genetic resources, multi-ethnicity, and diverse cultures,

Indonesia's Government is so aware of the high importance of protecting their TCE/EoF
(Sardjono A. , 2010). This awareness drives the Government of Indonesia to actively engage
themselves in discussions relating to the protection of TCE/EoF at both international and
regional levels.
In addition to being actively involved in international discussions and meetings related to
TCE/EoF, the Government of Indonesia also officially ratified international regulations related
to the recognition of TCE/EoF through
- Law of the Republic of Indonesia Number 5 of 1994 concerning Ratification of the
United Nations Convention on Biological Diversity (State Gazette of the Republic of
Indonesia of 1994 Number 41) and
- Law of the Republic of Indonesia Number 11 of 2013 concerning Ratification of the
Nagoya Protocol on Access to Genetic Resources and the Equitable and Balanced Profit
Sharing Arising from Their Utilization.

Developing countries which made the first attempts to regulate the use of TCE/EoF
creations tried to protect the framework of their copyright laws are Tunisia, 1967 and 1994;
Bolivia, 1968 and 1992; Chile, 1970; Iran, 1970; Morocco, 1970; Algeria, 1973; Senegal, 1973;

17
Kenya, 1975 and 1989; Mali, 1977, Burundi, 1978; Cote d'Ivoire, 1978; Sri Lanka, 1979;
Guinea, 1980; Barbados, 1982: Cameroon, 1982; Colombia, 1982; Congo, 1982; Madagascar,
1982; Rwanda, 1983; Benin, 1984: Burkina Faso, 1984; the Central African Republic, 1985;
Ghana, 1985; Dominican Republic, 1986; Zaire, 1986; Indonesia, 1987; Nigeria, 1988 and
1992; Lesotho, 1989; Malawi, 1989; Angola, 1990; Togo, 1991; Niger, 1993; Panama, 1994.
The 1990 Copyright Law of China indicates that it intends to protect TCE/EoF by
copyright. However, Article 6 of the Law only provides that "the State Council shall establish
regulations for protecting copyright in TCE/EoF." The 1994 Copyright Ordinance of Vietnam
contains a similar provision: "The Government shall prescribe copyright protection granted to
folklore works."
The majority of the above-mentioned national laws provide for the protection of what they
call "works of folklore"; some other laws (the laws of Benin, Indonesia, Kenya, Mali, Morocco,
Senegal, Tunisia, and Zaire) refer simply to "folklore." Two of them (the laws of Chile and
China) use the term that the International Bureau of WIPO considers the most appropriate one:
"expressions of folklore.”
Some national laws (those of Chile, Ghana, Indonesia, Madagascar, Mali, and Tunisia) do
not provide a substantive definition; they mention that what is involved is a common national
heritage. The other laws provide more or less detailed definitions. The Copyright Law of China
contains no definition, but this seems only to follow because regulating the protection of
expressions of folklore is left to another piece of legislation.
Only two national laws (the laws of Algeria and Morocco) provide definitions that, in
substance, corresponding to Article 15(4)(a) of the Berne Convention, quoted below, in the
sense that they use the general notion of literary and artistic works, and only add one element
to differentiate folklore creations from other works, namely that the authors are unknown.
However, there is reasonable ground to presume that they are citizens of the country concerned.
Furthermore, China has been developing laws and regulations to safeguard intellectual
property rights, as well as engaging in events coordinated by various international
organizations to promote international intellectual property cooperation and collaboration.
From its establishment, China's intellectual property rights security mechanism has been
targeted toward the rest of the world and has been structured to achieve high international
expectations. China has accelerated its intellectual property rights laws as a result of its reform
and opening up. (PRC, 1994).

18
 Legal protection for the diversity of TCE/EoF in Indonesia is essential, especially as
intellectual work, and to maintain its existence as the two countries' intellectual property rights,
which are the cultural heritage of ancestors and should not be claimed by other countries.
At the meeting of WIPO's Governing Bodies in 1978, it was felt that, despite concern
among developing countries as to the need to protect TCE/EoF, few concrete steps were being
taken to formulate legal standards. Following that meeting, the International Bureau of WIPO
prepared the first draft of sui generis model provisions for intellectual property protection of
TCE/EoF against specific unauthorized uses and distortion.
At their sessions in February 1979, the Executive Committee of the Berne Union and the
Intergovernmental Committee of the Universal Copyright Convention noted that the
International Bureau of WIPO had prepared the said draft provisions and approved the
proposals made by WIPO, that special efforts should be made to find solutions to the
intellectual property protection aspects of TCE/EoF, notwithstanding the global
interdisciplinary study of the questions of identification, material conservation, preservation
and reactivation of folklore, which had been undertaken by UNESCO since 1973.
The outcome of those meetings was submitted to a Committee of Governmental Experts,
convened by WIPO and UNESCO at WIPO headquarters in Geneva in 1982, which adopted
what is called “Model Provisions for National Laws on the Protection of Expressions of
Folklore Against Illicit Exploitation and Other Prejudicial Actions”
The Model Provisions were submitted to the joint meeting of the Executive Committee of
the Berne Convention and the Intergovernmental Copyright Committee of the Universal
Copyright Convention in Geneva in December 1983. The Committees welcomed the
development of the Model Provisions to establish a sui generis system of intellectual-property-
type protection for expressions of folklore; they found them proper guidance for national
legislation.
To create legal certainty, TRIPs participating countries can develop two protection models:
the positive protection model and the defensive protection model. The positive protection
model can be realized through the development of positive laws in one country. Either by
optimizing IPR regulations or developing regulations outside the IPR regime or more
commonly referred to as sui generis law. The positive protection model will later give
intellectual rights to the object for which protection is sought (Dutfield, 2011).
Conversely, defensive protection will not provide intellectual property rights. The
defensive protection model aims to prevent and stop granting intellectual property rights to
unauthorized parties (Kuruk, 1999).

19
 In general, this protection model was developed in the form of an inventory of traditional
knowledge in a country, both in the form of a traditional knowledge database as practiced by
India, a database of traditional knowledge journals such as those developed by South Korea,
or as developed by China through a database traditional Chinese medicine.
However, there is no obligation for a country to develop both regulations. Each country is
freed to develop a model of protection according to their individual needs.
At the meeting of WIPO's Governing Bodies in 1978, it was felt that, despite concern
among developing countries as to the need to protect folklore, few concrete steps were being
taken to formulate legal standards. Following that meeting, the International Bureau of WIPO
prepared a first draft of sui generis model provisions for intellectual-property-type protection
of folklore against certain unauthorized uses and against distortion.
At their sessions in February 1979, the Executive Committee of the Berne Union and the
Intergovernmental Committee of the Universal Copyright Convention noted that the
International Bureau of WIPO had prepared the said draft provisions and approved the
proposals made by WIPO that special efforts should be made to find solutions to the intellectual
property protection aspects of folklore, notwithstanding the global interdisciplinary study of
the questions of identification, material conservation, preservation and reactivation of folklore,
which had been undertaken by UNESCO since 1973.
In accordance with the decisions of their respective Governing Bodies, WIPO and
UNESCO convened a Working Group in Geneva in 1980, then a second one in Paris in 1981,
to study the draft Model Provisions intended for national legislation prepared by WIPO, as well
as possible international measures for the protection of works of folklore. The outcome of those
meetings were submitted to a Committee of Governmental Experts, convened by WIPO and
UNESCO at WIPO headquarters in Geneva in 1982, which adopted what are called "Model
Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit
Exploitation and Other Prejudicial Actions".
The Model Provisions were submitted to the joint meeting of the Executive Committee of
the Berne Convention and the Intergovernmental Copyright Committee of the Universal
Copyright Convention in Geneva in December 1983. The Committees welcomed the
development of the Model Provisions as a first step in establishing a sui generis system of
intellectual-property-type protection for expressions of folklore; they found them a proper
guidance for national legislation.
The Model Provisions do not offer any definition of folklore. For the purposes of the Model
Provisions, Section 2 defines the term "expressions of folklore" in line with the findings of the

20
Committee of Governmental Experts on the Safeguarding of Folklore, convened by UNESCO
in Paris in February 1982, and provides that "expressions of folklore" are understood as
productions consisting of characteristic elements of the traditional artistic heritage developed
and maintained by a community in the country or by individuals reflecting the traditional
artistic expectations of such a community.
This definition also embraces the results of individual development of the traditional artistic
heritage, since the generally applied criterion of "impersonal" creativity does not always
correspond to reality in the evolution of folklore. The personality of the artist is often an
important factor in folklore expressions, and individual contributions to the development and
maintenance of such expressions may represent a creative source of enrichment of inherited
folklore if they are recognized and adopted by the community as expressions corresponding to
its traditional artistic expectations.
The Model Provisions use the words "expressions" and "productions" rather than "works"
to underline the fact that the provisions are sui generis, rather than part of copyright. It is
another matter that expressions of folklore may, and often do, have the same artistic forms as
"works."
Only "artistic" heritage is covered by the Model Provisions. This means that, among other
things, traditional beliefs, scientific views (e.g. traditional cosmogony) or merely practical
traditions as such, separated from possible traditional artistic forms of their expression, do not
fall within the scope of the proposed definition of "expressions of folklore." On the other hand,
"artistic" heritage is understood in the widest sense of the term and covers any traditional
heritage appealing to our aesthetic sense. Verbal expressions, musical expressions, expressions
by action and tangible expressions may all consist of characteristic elements of the traditional
artistic heritage and qualify as protected expressions of folklore.
The Model Provisions also offer an illustrative enumeration of the most typical kinds of
expressions of folklore. They are subdivided into four groups according to the forms of the
"expressions," namely expressions by words ("verbal"), expressions by musical sounds
("musical"), expressions "by action" (of the human body) and expressions incorporated in a
material object ("tangible expressions"). The first three kinds of expressions need not be
"reduced to material form," that is to say, the words need not be written down, the music need
not exist in musical notation and the dance need not exist in choreographic notation. On the
other hand, tangible expressions by definition are incorporated in a permanent material, such
as stone, wood, textile, gold, etc. The Model Provisions also give examples of each of the four
forms of expressions. They are, in the first case, "folk tales, folk poetry and Riddles," in the

21
second case, "folk songs and instrumental music," in the third case, "folk dances; plays and
artistic forms of rituals," and in the fourth case, "drawings, paintings, carvings, sculptures,
pottery, terra-cotta, mosaic, woodwork, metal ware, jewellery, basket weaving, needlework,
textiles, carpets, costumes; musical instruments: architectural forms."
The words "architectural forms" appear in the Model Provisions in square brackets to show
the hesitation which accompanied their inclusion, and to leave it up to each country to decide
whether or not to include such forms in the realm of protected expressions of folklore.

• Attempts to Protect TCE/EoF International Sui Generis System

The Model Provisions were adopted with the intention of paving the way for regional and
international protection, since many countries consider it or paramount importance to protect
expressions of folklore also beyond the frontiers of the countries in which they originate. Of
course, national legislation on the protection of expressions of folklore could also provide an
appropriate basis for protecting expressions of folklore of communities belonging to foreign
countries. By extension of their applicability, national provisions might contribute for
promoting regional or international protection.
In order to further such a process, the Model Provisions provide for their application as
regards expressions of folklore of foreign origin either subject to reciprocity or on the basis of
international treaties (Section 14). Reciprocity between countries already protecting their
national folklore may be established and declared more easily than mutual protection by means
of international treaties. However, a number of participants stressed at the meeting of the
Committee of Governmental Experts which adopted the Model Provisions that international
measures would be indispensable for extending the protection of expressions of folklore of a
given country beyond the borders of the country concerned.
WIPO and UNESCO followed such suggestions when they jointly convened a Group of
Experts on the International Protection of Expressions of Folklore by Intellectual Property
which met in Paris from December 10 to 14, 1984. The Group of Experts was asked to consider
the need for a specific international regulations on the international protection of expressions
of folklore by intellectual property and the contents of an appropriate draft.
The participants had at their disposal a draft treaty which had been based on the Model
Provisions and had outlined a similar protection system at the international level, applying the
principle of "national treatment."
The discussion at the meeting of the Group of Experts reflected a general recognition of
the need for international protection of expressions of folklore, in particular, with regard to the
22
rapidly increasing and uncontrolled use of such expressions by means of modern technology,
beyond the limits of the country of the communities in which they originate.
The Executive Committee of the Berne Convention and the Inter-Governmental Committee
of the Universal Copyright Convention, at their joint sessions in Paris in June 1985, considered
the report of the Group of Experts and, in general, agreed with its findings. The overwhelming
majority of the participants was of the opinion that a treaty for the protection of expressions of
folklore would be premature. If the elaboration of an international instrument was to be realistic
at all, it could not be more than a sort of recommendation for the time being.

1.4.Research Methodology
S. Hornby stated that methods mean a way of doing something. Meanwhile, research is
investigation undertaken in order to discover new fact, get additional information (Hornby,
1995, p. 734).
In writing a thesis, research is needed, where research is expected to obtain accurate data
required in writing this thesis.
This research was carried out in a planned and systematic manner, which is expected to
help obtain existing problems. Therefore, these steps must be appropriate and mutually
supportive between existing legal regulations and existing facts, so that accurate and real data
can be achieved, which is then processed to obtain a fair and correct research result.
A researcher in conducting research usually uses a specific method. Researchers will not
find, formulate, analyze, and understand the problems it faces without a method.
In this study, the researcher uses Normative Legal Research methods, so the approach used in
this research is the juridical-normative approach. The enrichment of studies is equipped with
historical, comparative, and even comprehensive approaches from various other social
disciplines used integrally.
The Normative Legal Research method examines law explicitly as a positive norm in the
statutory system. In this normative research, the research refers to the legal provisions in the
existing regulations regarding the protection of expressions of folklore.
According to Soerjono Soekanto and Sri Mamudji's opinion (an author from Indonesia),
normative legal research includes (Mamudji, 2004, p. 14):
- Research on legal principles;
- Research on legal systematic;
- Research on the level of vertical and horizontal synchronization;

23
 - Comparative legal research;
- Legal history research.

This legal research is legal research on legal systematic. Research on legal systems is based
on the legal system's basic definitions: legal society, legal subjects, rights and obligations, legal
events, and legal objects11.

1.4.1. Research specifications

In terms of its nature, this research is prescriptive 12 and analytical descriptive, which
describes the State of the object under study and several factors that influence the data obtained.
Later from the data obtained, it will be collected, compiled, explained, then analysed.
Descriptive research is research that aims to describe something in a specific area and at a
specific time13. This research is said to be prescriptive because it aims to link the Copyright
Law's implementation in protecting TCE/EoF.
This research is said to be descriptive because the results obtained from this research are
expected to provide a comprehensive and systematic description of legal protection in
TCE/EoF. It is said to be analytical because the data obtained will then be analysed from the
juridical and cultural aspects of misappropriation in TCE/EoF.

1.4.2. Problem Approach

In connection with the research method used, particularly normative research, the approach
taken is a statute approach and a case approach. The statutory approach is carried out to
examine regulations whose norming is conducive to implementing the protection of
expressions of folklore. Meanwhile, the case approach is used to examine problems or cases
that have occurred in society in connection with the protection of TCE/EoF (das sein) in order
to find das sollen (what ought to be), so that it is hoped that misappropriation/violations in the
TCE/EoF field can be reduced.

11
Ibid Soerjono Soekanto and Sri Mamudji, p. 113.
12
Legal studies not only places law as a social phenomenon which is only viewed from the outside, but enters
into something essential, particularly the intrinsic side of law. In this case, the facts that actually there is
opposed to what should it be. In the discussion, we will seek answers to what way to bridge the two realities.
This is where the prescriptive nature of legal studies appears because it usually ends by providing certain
formulas. See Peter Mahmud Mardzuki, Legal Research, Jakarta, ID: Kencana Prenada Media Group, 2005, Ed.
I, Cet. 4, pp. 22-23.
13
Op. Cit Soerjono Soekanto and Sri Mamudji, p. 35.

24
1.4.3. Legal Materials
• Primary legal materials
This research, which is included in the primary legal material, includes statutory
regulations, Presidential Decrees, Draft Bill, Ministerial Regulations, International
Conventions, and other statutory instruments related to the legal issues under study.
The regulations used are those related to this research, such as the Copyright law/laws
related to the protection of expressions of folklore and international regulations such as
the TRIPs Agreement and Berne Convention and other related international regulations.
• Secondary legal materials
Secondary legal materials used are publications related to the research that are not
official documents14, namely legal materials that explain primary legal materials,
where the legal materials provide information or matters relating to the content of
primary legal materials and their implementation. In relation to this research, the
secondary legal materials used are books, scientific articles, materials obtained from
the internet, theories or opinions of scholars, papers, legal journals, theses, magazines,
and newspapers.
• Tertiary legal materials
Tertiary legal materials are materials that provide instructions and explanations for
primary and secondary legal materials15. In this paper, the researcher uses dictionaries
such as Black's Law Dictionary, WIPO Glossary of Terms of the Law of Copyright and
Neighbouring Rights, Merriam-Webster's Collegiate Dictionary and Dictionary of Law

1.4.4. Procedures of legal materials collection

The research material collection tool16 determines the quality of research materials, and the
quality of research materials determines the quality of research. Therefore, the research
material collection tool must be carefully cultivated.

14
Op. Cit, Peter Mahmud Mardzuki, p. 142.
15
Op. Cit, Soerjono Soekanto and Sri Mamudji, p. 33.
16
The research material here is the same understanding as secondary data. Data is true and factual information;
factual information or materials that can be used as the basis for the study (analysis or conclusion). Meanwhile,
Secondary Data is data obtained by a researcher indirectly from the object, but through other sources, both oral
and written. (See Ministry of Education and Culture, Indonesian Dictionary, Jakarta, ID: Balai Pustaka, 1990,
Cet. 3, p. 187.

25
In this research, the research material collection tool used was the document analysis method17
or library research method18.
Document analysis for legal research includes the study of legal materials consisting of
primary legal materials, secondary legal materials, and tertiary legal materials. Legal materials
are collected based on the problem that occurred from this research that has been formulated
and classified according to their sources and hierarchies for a comprehensive study.

1.4.5. Data analysis methods

The analysis obtained from existing data will be described and linked in such a way so that
it is presented in more systematic writing in order to answer the problems that have been
formulated. The data analysis method used is qualitative data analysis, namely the process of
compiling, categorizing qualitative data, looking for patterns or themes in order to understand
their meaning.
In the preparation of scientific papers, the primary data is obtained from library materials
where the processing, analysis, and construction of the data are carried out through research
using qualitative methods, which produce descriptive and comparative data.
This study carried out an inventory of legal materials and identified various regulations in
the IPR sector, especially regarding the Expressions of Folklore According to Copyright Law.
Here the categorization is defined into the systematization of the provisions of copyright law.
The method of data analysis is done through the data obtained will be analyzed
qualitatively. Conclusions are drawn using deductive thinking, namely, a fundamental way of
thinking about general matters and then drawing specific conclusions in accordance with the
subject matter (Winarno, 1994, p. 17). After the data analysis is complete, the results will be
presented descriptively, which tells and describes what it is in accordance with the problem
under study (Sutopo, 1998, p. 37). From these results, a conclusion is drawn, which answers
the problems raised in this study.

17
Document analysis is a systematic procedure for reviewing or evaluating documents – both printed and
electronic (computer – based and Internet – transmitted) material. Like other analytical methods in qualitative
research, document analysis requires that data be examined and interpreted in order to elicit meaning, gain
understanding, and develop empirical knowledge (See Corbin & Strauss, 2008; see also Rapley, 2007)
18
According to Mary W. George (2008) , library research "involves identifying and locating sources that
provide factual information or personal/ expert opinion on a research question; necessary component of every
other research method at some point". (See Mary W. George, The Elements of Library Research: What Every
Student Needs to Know, Princeton Reference, 2008).

26
1.5. Innovation Point
1. Investigate the implementation of the Copyright Law in terms of TCE/EoF (for the
explanation of this section you can see it in Chapter 4 Sub-chapters 4.1 – 4.4)
2. Analyse the protection mechanism to be applied to protect the TCE/EoF from the
“misappropriation” of traditional culture by foreign parties. ((for the explanation of this
section you can see it in Chapter 4 Sub-chapters 4.6)

27
 CHAPTER 2

EXPRESSIONS OF FOLKLORE

2.1.General Concept of Expressions of Folklore

2.1.1. Understanding of Expressions of Folklore
In 1846, William John Thoms invented the word folklore. In his letter to the Athenaeum,
he used the word "folklore" to replace "popular antiquities" and "popular literature." Initially,
the term was used in the hyphenated form “folk-lore,” but the hyphen was dropped later.
William John Thoms coined the word "folklore" to encompass etiquette, rituals, beliefs,
superstitions, ballads, proverbs, and so forth. He described it as "people's lore."
Indeed, Thoms' ground-breaking work raised awareness of the folklore characteristic. The
second half of the nineteenth century had seen a surge in eminent scholars' enthusiasm in
deciphering the large subject's fundamentals. Since the word "folklore" was invented,
academics all around the world have been attempting to come up with a reasonable meaning
for it. The debate about defining the word was so lively that there are twenty-one meanings
offered by various scholars in the standard dictionary of folklore, edited by Maria Leach. (Kutty
P. V., p. 7).
When reading the meanings, one may relate the disagreement to folklore's oral tradition. In
a community where the majority of inhabitants are illiterate, oral tradition is the main way of
communicating cultural elements. Scholars used the word "folklore" to refer to the people's
language, the structure of their livelihood such as hunting, agriculture, rituals relating to
weddings, deaths, as well as the required code of conduct that are conveyed orally in such a
community.
Scholars classify all learning features handed down by oral history from generation after
generation as belonging to the folklore realm. However, it may not be prudent to accept
anything that is handed down orally as folklore. It may be more appropriate to restrict folklore
to the artistic facets of culture as represented in everyday life and conveyed in non-material or
material ways, rather than relating exclusively to the mode of transmission, whether oral or
written.19

19
Ibid., P. V. Valsala G. Kutty, p.8

28
 According to Alan Dundes, "since materials other than folklore are often orally
disseminated, the requirement of oral disseminations by itself is not adequate to differentiate
folklore from non-folklore".
Folk music’s or songs, myths and legends, poetry, riddles, and also several stories
being part of great epics like the Ramayana and The Mahabharata and The Panchatantra
and Betal stories are all part of the rich heritage of folklore but are now mostly conveyed
and transmitted in written form in Indian literature. It is absurd to grant folklore status to
these embodiments merely because they are in written form. This is demonstrated by Alan
Dundes' that stated:20
"Some kinds of folklore, such as autograph-book verse, book marginalia, epitaphs, and
conventional letters, are manifested and transmitted almost entirely through the written as
compared to the oral form. Professional folklorists' real experience would not go so far as
to suggest that a ballad is not folklore. Definitely because it has been conveyed by script
or print at some point in its history. He would contend, however, that folklore or ballads
were never part of the oral heritage. This isn't legend. It may be a prose work based on a
folk model."
According to James Danandjaya, the definition of folklore is a part of the culture of a
society, which is spread and passed down from generation to generation, traditionally in
different versions, either in oral form or in written accompanied by gestures as a form of
reminder (Danandjaja, 2002, p. 1).
James Danandjaya also formulated the main identifying characteristics of folklore to
be distinguished from other cultures. According to him, the main identifying characteristics
of folklore can be formulated as follows:21
1. The outspread and the inheritance are usually carried out orally, that is, spread by
word of mouth (or by an example accompanied by gestures, or a superstition22)
from one generation to the next generation;
2. It is distributed in a relatively fixed form or a standard form. It is spread among
specific collectives over a long period of time;
3. Folklore exists in different versions and even variants. It is due to the way it is

20
Ibid., P. V. Valsala G. Kutty, p. 9.
21
Ibid., p. 2.
22
Superstition is a belief or notion, not based on reason or knowledge, in or of the ominous significance of a
particular thing, circumstance, occurrence, proceeding, or the like, a system or collection of such beliefs, a
custom or act based on such a belief, irrational fear of what is unknown or mysterious, especially in connection
with religion.

29
 spread by word of mouth (orally), usually not through printing or recording, so that
by the process of interpolation, folklore can easily change;
4. Folklore is anonymous because the name of the creator is no longer known;
5. Folklore usually has a formulated or patterned form. For example, always uses a
clichés language such as "Bulan empat belas" to describe the beauty of a girl and
"seperti ular berbelit-belit" to describe someone's anger, or any traditional
expressions, repetitions, and standard opening and closing sentences or words, such
as in the Javanese fairy tales many begin with the sentence Anuju sawijining dina
(once upon a time), or A lan B urip rukun berbarengan kayo mimi lan mintuno (A
and B live in harmony as a husband and wife)

Kamal Puri defines folklore as a path to cultural and social identity in standards and
values. Usually, folklore is conveyed orally, through imitation or other means. The forms
can take the form of, among others, language, literature, music, dance, games, myths,
rituals, customs, handicrafts, architecture, and other arts. Folklore is a form of high-level
manifestation because of its various characteristics and its evolving forms. Folklore is
sometimes called traditional and popular culture because it is very group-oriented and
tradition-based (Puri, 1999, pp. 6-7).
The term used in Indonesia to describe "folklore" is “Ekspresi Budaya Tradisional
(EBT)” or Traditional Cultural Expressions, most of which are intangible cultural heritage.
Preservation of TCE/EoF places the state as the holder of the right to traditional cultural
expression (paragraph 1 Law No. 28 of 2014 concerning Copyright). The state's position
as the holder of this right can be interpreted as an effort to protect the expression of
traditional culture used or violated by a foreign country. The state's position can represent
society's interests to defend it from violations committed by other countries. It is certainly
understandable that it is impossible if indigenous peoples or bearers of traditional cultural
expression must deal with foreign countries.
a. Elucidation of Article 38 Paragraph (1) the copyright law provides a description that
what is meant by "traditional cultural expression" includes one or a combination of the
following forms of expression:
Verbal textual, both oral and written, in the form of prose and poetry, in various themes
and content of messages, which can be in the form of literary works or informative
narratives;
b. Music, including but not limited to, vocal, instrumental, or a combination thereof;

30
 c. Motion, including among other things, dance;
d. theatre, including among others, wayang performances and folk plays;
e. Fine arts, both in two-dimensional and three-dimensional forms made from various
materials such as leather, wood, bamboo, metal, stone, ceramics, paper, textiles, and
others or their combinations; and
f. Traditional ceremonies.

A few years earlier, the word "folklore" was already widely known at the international level
and in scholarly literature. There have been improvements in the language of folklore over
time. WIPO and UNESCO use the words "traditional cultural expressions" (TCEs) and
"expressions of folklore" (EoF) in the Model Agreement. Folklore, according to these two
international organisations, is defined as:
"Folklore in a wider context, conventional and modern folk culture is a group-
oriented and tradition-based development of communities or individuals that reflects the
community's expectation as an adequate. The expression of its social and cultural identity;
the values are passed on verbally, by imitation, or through other means. Language,
literature, song, dance, sports, myths, ceremonies, customs, handicrafts, architecture, and
other arts are examples of its forms."
Based on the above definition, the two international organizations define folklore as
a cultural community's work passed down from generation to generation. The work gives
the cultural community a distinct identity.
While the term "expressions of folklore" is widely used in international debates and
has been used in many national laws, several communities have raised awareness about
the negative connotations associated with the term "folklore."
Traditional cultural symbols or expressions of folklore have the same meaning and
describe the values, customs, and practices of aboriginal peoples. They can be defined as
works consisting of characteristic elements of a community's traditional artistic heritage
created and preserved by a community or by individuals, representing the community's
traditional artistic expectations, according to the WIPO understanding.
TCE/EOF also known as "traditional oral expressions", are the distinct artistic
creations of recognizable indigenous peoples. They are works of art that emerge from
communal cultural experiences and cannot be attributed to any single artist. Furthermore,
have the same sense and describe aboriginal peoples' values, customs, and beliefs.

31
 TCE/EoF are described by the World Intellectual Property Organization (WIPO) as
"economic and cultural assets of local indigenous peoples and their nations."
Furthermore, they can be described as works that contain distinguishing aspects of a
community's or an individual's traditional artistic heritage and embody the community's
traditional artistic expectations.23
TCE/EoF are grouped into four categories based on their form:
a) Unwritten expressions, such as myths, legends, stories, and poems;
b) Operatic expressions, such as folk music instrument, or traditional folk songs;
c) Motion expressions, such as plays, shows and traditional dances; and
d) Tangible expressions, mostly architectural works, sketches, portraits, sculptures,
painting, pottery, drawings, jewels, costumes, masks, and musical instruments.

The term traditional cultural expression is used by the international legal community
to refer to indigenous peoples' works and traditional communities, but the term does not
have a precise definition. Because of the difficulty in imposing a single definition of
traditional cultural expression, it has become the practice to refer to characteristics and
general criteria of TCEs and provide non-exclusive lists of the types of works and
expressions they embrace. The criterion of self-identification among traditional
communities is an important principle guiding the understanding of unique works and
expressions across diverse cultures. There is no single definition that embraces all forms
and manifestations of traditional cultural expression.
TCEs are often used interchangeably with expressions of folklore. In early debates,
the word folklore was being used by the International forums such as WIPO and
UNESCO, and it was replaced by the wider and more neutral term which is TCE/EoF.
Few countries, however, use the terms folklore or folk works and include them in national
copyright laws.
TCE/EoF represent a community's cultural and social history and are made up of
distinctive components of the community's heritage. They are sometimes created by
anonymous or unnamed writers, or by communities or persons recognised as having the
right, duty, or authorization to produce them under the customary law and practices of

23
The World Intellectual Property Organization, WIPO, defines Traditional Knowledge (TK), Genetic
Resources (GRs), together with Traditional Cultural Expressions (TCEs or expressions of folklore) as
“economic and cultural assets of indigenous and local communities and their countries.” Traditional
Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore, available at
http://www.wipo.int/tk/en/

32
that group. Inside source cultures, TCE/EoF is continually changing, improving, and
being recreated (WIPO, 2005).
There is no universally accepted definition of TCE/EoF. However, certain national
and regional regulations or laws, as well as some legal agreements, have definitions.
Indigenous and local communities often have different ideas on what defines cultural
expression. For the time being, the Glossary includes a working definition of TCE/EoF.
TCE/EoF may be viewed as a subset of "traditional experience," which is also specified
in the Glossary. In a nutshell, TCE/EoF can be described broadly as:24
1. They are passed down through generations, either verbally or orally and also by
imitation;
2. They represent the social and cultural identities of a community;
3. They are made up of distinctive features of a community's cultural heritage;
4. They are created by anonymous authors or by persons who have been collectively
recognised as possessing the right, duty, or authorization to do otherwise;
5. They are often produced for cultural and religious symbols rather than for
commercial purposes; and
6. They are actively changing and re-creating themselves within the community.

It has been noted that the new WIPO concept differs from previous WIPO working
concepts, which saw traditional cultural expressions as a subset of the wider definition of
‘‘traditional knowledge," which also includes knowledge about the climate and ecology,
traditional medicinal knowledge, and traditional agricultural knowledge(Antons, 2009,
pp. 2-3).
WIPO depicted the relationship among TK AND TCE/EOF in a picture of
overlapping circles originating with cultural heritage as the broadest term, which
incorporated traditional knowledge which also integrated the smaller subsets of the
overlapping circles of expressions of traditional knowledge holders on “Intellectual
Property Needs and Expectations of Traditional Knowledge Holders.” in 2001(WIPO,
2001, p. 26).
However, WIPO began to distinguish between traditional knowledge “in the strict
sense,” which became henceforth defined as “traditional technical knowledge” and in

24
WIPO, Intellectual Property and Traditional Cultural Expressions/Folklore - Booklet n° 1, 2005

33
legal terms relates to industrial property rights such as patents and “traditional cultural
expressions” which relate in particular to copyright.25
Many analysts have regretted this bifurcation of the analysis by pointing out that the
distinction between TK and TCEs/EoF is an artificial one in the eyes of indigenous
peoples and local communities and from the perspective of traditional creators (Posey D.
A., 1998, p. 43).
Traditional cultural expressions such as textiles, music, or ceremonial paintings often
source the ingredients or instruments from the natural surroundings. It requires as much
technical knowledge as it requires artistic skills.26 One need not be familiar with the oft-
quoted holistic worldview of indigenous and local people to understand the technical
knowledge involved in the creation of headbands and skirts made from paperbark by
Dayak groups in the interior of Borneo (Hamilton, 2007, pp. 58-71)or the complicated
designs and weaving techniques for silk textiles, batik, brocade weaving and embroidery
in countries like Thailand and Indonesia 27 . In defining the protection of TCEs
distinguishes between:
1) The creative and distinctive expressions themselves; or
2) The reputation or distinctive character associated with them; or
3) The method of manufacture such as handicrafts, musical instruments, and textiles.

As far as TCE/EoF relate to the manufacture of crafts, musical instruments, and

textiles, the document refers more to what is treated as “traditional knowledge stricto
sensu” (in the strict sense) in the Committee’s work. The “Revised Objectives and
Principles” document equally recognized “the often inseparable quality of the content or
substance of traditional knowledge stricto sensu and TCEs/EoF for many communities”
and regarded the parallel but separate consideration of the issues as “compatible with and
mindful of the conventional context in which TK and TCEs/EoF are frequently regarded
as integral components of a holistic cultural identity.”28

25
WIPO/GRTKF/IC/6/4 of December 12, 2003, Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore, Sixth Session, Geneva, March 15–19, 2004,
Traditional Knowledge: Policy and Legal Options p.5.
26
Michael Blakeney, ‘‘Protection of Traditional Knowledge by Geographical Indications’’ in Christoph Antons
(ed.), Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific
Region, 2009, pp.105–107.
27
Anne Richter, Arts and Crafts of Indonesia (San Francisco: Chronicle Books), pp.89–96, see also Susan
Conway, Thai Textiles (Bangkok: River Books Press, 1992).
28
IGC, WIPO/GRTKF/IC/12/4 (c), p.9

34
 However, the link TK and TCE/EoF is not only found in the traditional manner of
manufacture of the material. Traditional cultural expressions also play an essential role in
the transmission of traditional knowledge. Especially in societies with few written sources
of tradition, cultural expressions such as songs, legends, or even paintings are often used
to transmit to the next generation what WIPO would refer to as “traditional knowledge in
the strict sense.”29 In parts of Asia, the transmission of traditional forms of knowledge,
for example, related to medicine, may well be in a form that would be most appropriately
defined as traditional cultural expression30.
While these various purposes of traditional cultural expressions are not always
satisfactorily covered by the current WIPO draft provisions, TK and TCE's distinction
has been accepted among the participants in the WIPO discussions. It seems to be
relatively well established by now.

2.1.2. Expressions of Folklore and Intellectual Property

The intellectual property rights regime is widely recognized as the primary
mechanism for determining ownership and property rights over knowledge, processes,
innovations, inventions, and even naturally occurring phenomena such as plants, animals,
and genetic material. This form of ownership is protected by states and promoted by the
World Trade Organization (WTO) 31 and the World Intellectual Property Organization
(WIPO). The intellectual property rights (IPRs) regime and the worldview on which it is
based stand in stark contrast to indigenous worldviews, whereby knowledge is created
and owned collectively. The responsibility for using and transferring the knowledge is
collectively owned and guided by traditional laws and customs.32
The wider society is often overlooked because, within indigenous societies, there are
already laws governing the use and transmission of their knowledge systems that often

29
On the relationship between Australian Aboriginal mythology, art and landscape see Howard Morphy,
Aboriginal Art (London: Phaidon Press, 1998), in particular Ch.4.
30
On various Southeast Asian ‘‘manuals’’ transferring medical and other knowledge see C. Reynolds, Seditious
Histories: Contesting Thai and Southeast Asian Pasts (Seattle–Singapore: University of Washington
Press/Singapore University Press, 2006), pp.214-242; Soewito Santoso, The Centhini Story: The Javanese
Journey of Life (Singapore: Marshall Cavendish, 2006), pp.138–139. See also Christoph Antons and Rosy
Antons-Sutanto, ‘‘Traditional Medicine and Intellectual Property Rights: A Case Study of the Indonesian jamu
Industry’’, in: Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region
(Alphen aan den Rijn: Kluwer Law International, 2009), pp.363–384.
31
https://www.wto.org/english/docs_e/legal_e/marrakesh_decl_e.htm, Marrakesh Declaration of 15 April 1994,
World Intellectual Property Organization, access on November 20, 2020.
32
The United Nations Permanent Forum on Indigenous Issues, at its Fifth Session, appointed Mick Dodson,
Member of the Forum, to prepare a study on customary laws pertaining to indigenous traditional knowledge.
This study was presented to the Permanent Forum at its Sixth Session. See UNPFII (2007b).

35
do not have any formal recognition in the broader legal system. Since time immemorial,
these internal regimes have operated within indigenous communities and have been
developed from repeated practices, which are monitored and enforced by the elders,
spiritual, and community leaders. Even though international property rights were born
since the development of civilization, however, often fails to recognize indigenous or
traditional customary laws relating to the ownership and management of cultural
knowledge and property.
Intellectual Property and TCE/EoF have a complex and confusing relationship.
Uncertainty over intellectual possession, influence, and use of collections kept within
cultural institutions is one of the features of today's contestation over
TCE/EoF intellectual aspects.
Articles 11, 12, and 31 of the 2007 United Nations Declaration on the Rights of
Indigenous Peoples expressly discuss them as urgent and legitimate issues. According to
Article 31 that states:33
"Indigenous people have the right to preserve, regulate, protect, and cultivate their
cultural history, ancestral knowledge, and traditional cultural expressions, as well as the
embodiments of their sciences, technology, and societies, such as human and genetic
capital, plants, medicines, knowledge of the properties of fauna and flora, oral practices,
art, designs, sports, and traditional cultural expressions." They will have the right to
preserve, regulate, protect, and establish their intellectual property rights in relation to
certain cultural heritage, traditional information, and traditional cultural expressions.”
Indigenous groups have the right to access, practice, and invigorate their cultural heritage
or traditions, according to the 2007 Declaration as stated in Article 12: 34
"Indigenous peoples have the right to manifest, observe, create, and teach their sacred
and religious practices, rituals, and ceremonies; the right to preserve, defend, and have
access in privacy to their cultural and religious sites; the right to use it and control of their
sacred objects; and the right to the resettlement of their human remains,"

The main obstacle for tradition-bearers in claiming ownership of cultural

heritage and TCEs in cultural institutions is that they are often not legally recognized

33
United Nations Declaration on the Rights of Indigenous Peoples, 2007, Article 31. Although the Declaration
has been adopted, it is not a legally binding document.
34
United Nations Declaration on the Rights of Indigenous Peoples, 2007, Article 12(1).

36
as the rights holders. It means that they have limited capacity to argue and assert legal
rights and interests to negotiate culturally appropriate management frameworks.
The rights and obligations that a community might assert concerning a collection
might not map easily onto Intellectual Property definitions of who constitutes an
"owner," "author," "creator," or a "user." Such a disjuncture requires innovative and
creative thinking, and importantly, it presents an unprecedented opportunity to
develop new equitable relationships that consider past histories, legal gaps, and future
partnerships.
Existing Intellectual Property protection measures can be useful to prevent such
misuses and misappropriations, especially for the peoples and communities whose
primary aims are to prevent the unauthorized use of their creative productions and
exploit their creative arts and contemporary adaptations of their TCEs in the
marketplace.35
The following are examples of possible protection are:
- Photographs, sound recordings, and films that document indigenous and
traditional customary practices and knowledge are often protected under
copyright or related rights law. As such, they provide an indirect form of
protection for TCEs. These derivates of TCEs may benefit from existing
rights and responsibilities to access, use and reproduction;
- If they meet the required protection requirements, contemporary
TCE/EoF are often protected by copyright;36
- The pre-eminent international instrument on copyright, provides exceptional
protection at Article 15.4 Berne Convention for “unpublished” works of
“unknown authors,” a provision added to the Convention specifically to
address the protection of TCE/EoF;

35
Despite its potential, IP has not been widely used to protect TCEs. As the Group of Countries of Latin
America and the Caribbean pointed out in 2001, “the resources offered by intellectual property have not been
sufficiently exploited by the holders of traditional cultural knowledge or by the small and medium-sized
businesses created by them.” (Position Paper submitted to the IGC in 2001 by GRULAC (Group of Countries of
Latin America and the Caribbean), WIPO/GRTKF/IC/1/5, Annex II, page 2.)
36
By T. Janke, WIPO, WIPO, “Minding Culture: Case Studies on Intellectual Property and Traditional Cultural
Expressions,” WIPO Publication No. 781; WIPO, “Consolidated Analysis of the Legal Protection of Traditional
Cultural Expressions/Expressions of Folklore,” WIPO Publication No. 785, pp. 35–44. for an application of this
principles under Chinese copyright law see also, The Local Government of Ethnic Hezhe Sipai Village,
Heilongjiang Province v. Guo Song and Chinese Central Television and Beijing Beichen Shopping
Centre, Beijing Higher People's Court, case No. 246, 2003.

37
 - Copyright’s resale right is also a potential option to share with the artists and
their communities the proceeds from the resale by auction houses and
galleries of indigenous and traditional works based on TCEs. Indeed, many
indigenous artists’ works resell for more significant amounts (Janke T. );
- Performances of TCEs are protected internationally by the WIPO
Performances and Phonograms Treaty (WPPT);
- Copyright are also required for TCE/EoF database and compilations;
- Indigenous groups in Panama, New Zealand, and Tonga for example, have
used certification, joint trademarks, and authenticity logos to combat the
selling of counterfeit ancient artistic arts and also known as "fakelore" , Fiji
and the other country that the author mention above is working on the
certification and collective trademarks and labels of authenticity of the
TCE/EoF Products and as are other countries that might have related
programs.

Intellectual property law has proved to be a possible tool for managing and
transmitting cultural heritage, protecting it from unauthorized use and reproduction,
misappropriation, and other forms of illicit exploitation.
Indeed, intellectual property rights make it possible to protect traditional
cultural expressions by registering copyright and related rights, geographical
indications, designations of origin, trademarks, and designs.
Thus, folklore's contemporary adaptations are protected by copyright, while
traditional music may be covered by the WIPO Performances and Phonograms
Treaty and Beijing Treaty on Audio-visual Performances. Trademark registrations
can also be used to identify traditional arts, such as what happens with protecting
the word "Maori" in New Zealand.
The intellectual property rights confer exclusive property rights to allow the
control of the commercial exploitation of TCE/EoF by the creators and establish
moral protection of the same goods, avoiding their expropriation by third parties
and preventing unfair competition.
However, the protection of TCE/EoF through intellectual property rights carries
the risk of transforming these goods into mere commodities, placing in second place
the importance cultural expressions have in symbolic and identity levels.

38
 In general, intellectual property laws provide creators with certain exclusive
rights to commercially exploit their creative endeavours. The monopoly is limited by
(a) the types of uses that may be authorized or prohibited;
(b) various exceptions to or limitations on infringement; and
(c) the duration of protection.

The need to protect the considerable economic value of intellectual property

rights has resulted in several international treaties that provide for the protection and
enforcement of intellectual property rights globally.
• Copyright
Copyright protection seems to be feasible when TCE/EoF take the same shape as
covered works and products. However, some aspects of copyright are incompatible
with the TCE/EoF, namely the restriction of time of security and the identity of the
author originating the intellectual works.
Copyright protects creative expression for, inter alia, literary, dramatic, musical,
and artistic works (Tan, 2018, p. 31). These categories are typically non-exhaustive
and broadly interpreted to allow for flexibility in categorizing copyrightable subject
matter. Unlike copyright, TCE/EoF like folk tales, folk dances, folk music, and folk
art and crafts fall broadly into the above categories of the copyrightable subject
matter. As such, TCE/EoF is finally not precluded from copyright protection.
Moreover, for the copyright to subsist in creative work, the work must be "original."37
The question of whether a work made or expression presented in the territory of
TCE/EoF is original or not "invariably comes down to a consideration of the
particular attributes of each work." (Verhulst, 2000, p. 30) Because TCE/EoF is
tradition-based and often developed in the form of cumulative manner over from
generation to generation, the similarities between any single TCE/EoF and the
TCE/EoF that make up traditional communities’ ongoing culture may preclude them
from copyright protection.38
Furthermore, TCE/EoF are thought to require inadequate intellectual effort. As a
result, TCE/EoF that are more closely identified with a continuing cultural tradition
are less likely to be perceived original for copyright protection.

37
Hilty, R. and Nerisson, S. (2013) “Collective copyright management”, in R. Towse and C. Handke (eds),
Handbook on the Digital Creative Economy, Cheltenham: Edward Elgar, p. 223
38
Ibid, Stephen Palethorpe and Stefaan Verhulst, p. 28.

39
 In terms of protection length, the short duration of copyright protection increases
the temporal dimension.39
TCE/EoF are usually known to be in the public domain in terms of identifying
creators or right holders and their claims over common infringement because they
reach back much further in time than the term of legal immunity provided by
international treaties.(Kallinikou, 2005, p. 2).
The identification of the author is the basis for copyright. TCE/EoF, on the other
hand, is characterized by its anonymity and the fact that tradition is a community
trait. Copyright gives the author of the work the sole right to use and produce or
reproduce the work, which is difficult to reconcile with the diffuse existence of
TCE/EoF within a community.
• Trademark
Any folklore expressions, such as patterns and symbols, can be protected under
trademark law. A trademark is a type of property that entitles the holder to prohibit
anyone from using it in association with a particular group of products or services.
Legislation preserving distinctive signs provides opportunities for the preservation
of aboriginal and cultural symbols designed for commercial use. (Li, 2014, p. 219).
The disadvantages are the formalities involved in registering and renewing
trademarks, as well as opposition and invalidation proceedings. For instance, if a
trademark is licensed for specific types of folkloric goods or services and is held by
a members of an indigenous community, trademark rights may be available:40
(a) provide redress for the appropriation of expressions of folklore, such as
folkloric symbols, through injunctive remedies for trademark infringement;
(b) compensate the traditional community for their contribution through the
payment of royalties for the use of words, names, or symbols or damages for
infringement; and
(c) promote the authentication of genuine folkloric products through the use of
particular collective or certification marks.

There are some concerns about the registration of words and symbols originating from
traditional cultures as trademarks. The said registration has been a common practice in

39
Loc.Cit.
40
Ibid, Stephen Palethorpe and Stefaan Verhulst, p. 33.

40
developed countries, whereas, to specific traditional communities, this practice is often
considered highly offensive, disparaging, and dehumanizing. Individuals in traditional cultures
can register marks in the same fashion as others in society (Janke T. , 2003, p. 32).
It is unlikely that traditional communities would seek to register trademarks in products
and services unrelated to their folkloric activity's general area. 41 Therefore the trademark
regime does not allow traditional communities to prevent the wholesale use of their words,
symbols; that is, it does not prevent their inappropriate use.
• Geographical Indications
It is widely acknowledged that laws governing geographical signs are best suited to
protecting folkloric terms because they can be allocated to territories rather than a natural or
legal individual. A geographical indication has no "owner."
Regarding the protection of folkloric works and expressions through geographical
indications, it is genuinely believed that geographical indications have the potential to:
(a) provide redress for the appropriation of folkloric indicia by enabling traditional
communities of a particular region to restrict which traders may use folkloric
geographical indications; and
(b) promote the authentication of genuine folkloric products by permitting the use of
particular names to indicate a product originates from a region of a particular traditional
community.

As a result, it is critical to remember that geographical signs were proposed as a component

of the security regime proposed in international Model Provisions for Folklore Protection.
• Industrial Designs
TCE/EoF protection for graphical marks and three-dimensional plastic types are
protected by industrial design laws. TCE/EoF are not specifically barred from design
protection in general, as long as they are two or three-dimensional objects capable of
being used industrially or manufactured on a broad commercial scale (Hahn, 2004,
p. 305).
The novelty and originality requirements are difficult to reconcile with the nature
of TCE/EoF, which may date back centuries. Furthermore, the duration is
also restricted, and there is the issue of who owns the copyright.

41
Op.cit, Stephen Palethorpe and Stefaan Verhulst, p. 34

41
 Generally, there are two major requirements must be followed before
the protection can be issued. First and foremost, the design item must be unique and
novel. That is, the design must not be known, previously used, or in the public
domain. Second, the design must be original. That is, the aesthetic appearance of a
design requires the designer's own artistic initiative. These general requirements are
close to the requirement for originality of copyright protection. For a similar
purpose folkloric designs do not meet these standards due to folklore's incremental
development in a communal environment.
• Unfair Competition
Unfair competition law is designed to protect against any act contrary to honest
business practices (Geraint Howells, 2013, p. 3). Unfair competition protects against
wrongful commercial use, especially against industries that gaining the benefit from
TCE/EoF but neglect its traditional use.
The unfair competition differs from other classical categories of intellectual
property law, such as copyright law, because it does not relate to the defined subject
matter but instead monitors all behaviours contrary to ethical business practices. In
this respect, the unfair competition provides supplementary protection to other
intellectual property regimes. Concerning the protection of folklore, unfair
competition can be divided into two main areas42:
- Passing off; and
- Confidential Information
Traditional communities may benefit from passing off protection by asserting
their rights in selling their cultural products. Making third parties or interested
persons account for their misrepresentations or deceptive or confusing practices
regarding the folkloric origins of products will increase cultural products' sales by
reducing the competition in the cultural product market. Unfair competition law may
also be beneficial for consumers by ensuring that what appear to be folkloric products
are indeed genuine. 43 Notably, traditional communities' main obstacle may be to
demonstrate the damage or likely damage caused by the offending trader’s conduct,
as often this will require detailed and costly survey evidence.

42
Op.cit, Stephen Palethorpe and Stefaan Verhulst, p. 36
43
Ibid, Stephen Palethorpe and Stefaan Verhulst, p. 17

42
 Concerning confidential information, the protection of confidential information
can address traditional communities’ concerns over the unauthorized disclosure of
sacred/secret expressions of folklore. It cannot be refused that “the detriment suffered
by traditional communities resulting from the disclosure of confidential sacred
knowledge is not adequately recompensed by compensatory damages, which can
never make the information sacred again.” 44 Thus, the most suitable remedy is
injunctive relief, which may prevent the disclosure of sacred folkloric knowledge is
sought before the release. Moreover, prior consent from traditional community must
be reached before making use of a traditional cultural expression.

2.1.3. The Necessity of the Protection of Expressions of Folklore

These vital aspects of a community's cultural heritage and identity have been abused and
exploited to the detriment of those who belong to them. Unlicensed and
unpermitted adaptation, duplication, and commercialization of TCE/EoF has occurred, with
little share of economic benefits. Someone who not have the permission to use one
communities TCE/EOF have been used the TCE/EoF in degrading, insulting, or culturally
offensive ways.
The list of traditional cultural expressions being misused is too long; however, a few glaring
examples are discussed to assess the damage being caused. Paintings made by indigenous
people for a religious ceremony, for example, have been reproduced by non-indigenous persons
on t-shirt, craft, or carpets.
WIPO attempted to summarize aboriginal awareness holders' issues in its article
on a number of fact-finding missions as follows (WIPO, 1998-1999), WIPO:
(i) Concern over the lack of traditional behaviours and awareness, as well as the
inability of younger members of the indigenous communities to carry on
cultural traditions;
(ii) Concern over a lack of respect for TCE/EoF holders and the TCE/EoF itself;
(iii)Concern over TCE/EoF misappropriation, including the use of
TCE/EoF without benefit-sharing or in a negative manner;
(iv) A failure to recognize the importance of preserving and promoting the use of
TCE/EoF.

44
Ibid, Stephen Palethorpe and Stefaan Verhulst, p. 37

43
 As for other sources more succinctly classify the other possible reasons for
protecting TCE/EoF as:
(i) For the TCE/EoF equity considerations, TCE/EoF custodians must be
compensated fairly if their TCE/EoF is used commercially;
(ii) Conservation is concerned with the preservation of TCE/EoF, and leads
to the larger goal of preserving the environment, the sustainable
agricultural practices and biodiversity;
(iii) Preservation of traditional practices and cultural protection of TCE/EoF
will be used to increase the knowledge of an indigenous community and
those who entrust it both inside and outside the community;
(iv) prevent unauthorized confiscation of TCE/EoF or avoid "biopiracy"; and
(v) promote the use of TCE/EoF and the importance of protecting the
TCE/EoF for the development of a region.
The emotive arguments have focused on developing countries' economic
realities, with both developed and developing nations accusing the other of pirating
information.45
Incidents have occurred, which developing countries describe as the unauthorized
appropriation of expressions of folklore. 46 These countries find this appalling,
especially since most of such indigenous people live in conditions devoid of human
rights, which the UN Charter regards as a condition for living with human dignity.
These incidents are often viewed in developing counties as instances where third
parties steal information to expand their industries and increase profit margins. That
the developed nations are aware that if the holders were given even a portion of the
profits, it would significantly improve their living conditions only enhances the
feelings of bitterness. It has led the indigenous people to organize themselves to
protect their expressions of folklore and resources by various means.

45
The developing countries felt their traditional knowledge has been pirated by the developed nations while the
developed nations accused the developing countries of pirating their intellectual property. David Downes, How
Intellectual Property Could Be a Tool to Protect Traditional Knowledge, 25 Columbia Journal of Environmental
Law (2000) at 261- 64
46
Many LDCs view the use of their biocultural contributions to biotechnology companies in developed
countries to create commercial products as an example of the traditional colonial paradigm of exchanging their
natural resources for manufactured goods. (detailing the general sentiments of these people). See, for example,
Craig D. Jacoby and Charles Weiss, “Recognizing Property Rights in Traditional Biocultural Contributions,”
Stanford Environmental Law Journal 74, 75-81, 1997, p. 74, discussing the various bio-cultural knowledge that
has been misused by the West.

44
 Which is why TCE/EoF should be preserved because they are a living tradition
and part of humanity's universal heritage. However, its protection should not restrain
the freedom to promote creativity and innovation. However, it is of particular
importance for every nation, which recognizes folklore as a means of self-expression
and social identity. All the more so, since folklore is genuinely a living and still
developing tradition, rather than just a memory of the past. Thus, we can protect it
from unauthorized use and reproduction, misappropriation, and other illicit
exploitation forms.
Instead of being something that belongs to the past or is "frozen in time," TCEs
are lively, evolving, and form part of the lives of Indigenous communities. There are
several reasons as to why it is essential or justifiable to protect TCEs:
(a) Cultural Integrity
Indigenous communities are very concerned with their culture's continued
distinct existence, which should be free from unnecessary interference. Indeed, their
sense of identity and self-respect are bound up with their group cultures (Weatherall
K. , 2001, p. 224). Hence, the community needs to have the right to control over
TCEs to maintain their cultural integrity. This is even more significant for those
TCEs which are sacred. The following statement may, to a certain extent, reflect this
viewpoint:
One nation's indigenous people, for example, have many particular things that
they hold internal to their cultures. These things are spiritual. They are ours, and they
are not for sale; such matters are our “sacred-secrets,” the things which bind the
indigenous community together in their identities as distinct peoples.47
It is interesting to note that in the Philippines, the Indigenous Peoples Rights Act
1997, is a law to to recognize, protect and promote the rights of Indigenous Cultural
Communities or Indigenous Peoples, has explicitly provided the rights of cultural
integrity.48 It shows that maintaining cultural integrity has been recognized as a basis
for the legal protection of TCEs.
(b) Avoid Unjust Enrichment of the Outsiders

47
Ibid., Kimberlee Weatherall, p. 222, quoting from Coombe, R, "The Properties of Culture and the Politics of
Possessing Identity", 1993, 6 Can J L & Juris 249 at p 279.
48
See Indigenous Peoples Rights Act of 1997 (IPRA), Chapter VI. According to s 32 of the IPRA, the State
shall preserve, protect and develop the past, present and future manifestations of the cultures of the Indigenous
Cultural Communities or Indigenous Peoples. The State is also obliged to restore the cultural, intellectual,
religious and spiritual property taken without the free and prior informed consent of the communities.

45
 Another justification for conferring legal protection to the TCEs is to avoid the
unjust enrichment of those non-Indigenous entrepreneurs. They profit from the
commercial use of the TCEs, whereas the Indigenous or traditional owners are left
with no share of the economic returns. If not adequately addressed, this problem
could cause injustice since the Indigenous communities have an interest in the TCEs,
which have been handed down from their ancestors and become part of their lives.
(c) Prevent Economic Harm on the Communities
Indigenous arts and crafts, which are invariably part of TCEs, are essential
sources of income for Indigenous artists and communities. If the indigenous artists
and communities have no right to control the use and reproduction of their arts and
crafts, this may result in undesirable competition from non-Indigenous people who,
by cheap imitations, mass-produce similar arts and crafts. It will cause economic
harm to indigenous artists and communities, and their economic opportunities are
inevitably reduced. Therefore, legal protection on the TCEs is justified.

2.2.The Implementation of Expressions of Folklore Protection in Indonesia

TCE/EoF are actually lively, evolving and form part of the lives of Indigenous
communities (Ying, 2005). The statement states that folklore lives, evolves from
certain parts of the community or customary communities. The allegation is entirely
correct, for that the need for awareness to prevent theft of folklore work.
In order to prevent the operation of flawed laws, the theory of lawfulness
(rechtsgelding) which arranged hierarchically, starting from legal enforcement of the
law based on philosophical, sociological and juridical validity, is seen as a central
principle for legislation on folklore protection at all levels.
It is necessary to make changes to the existing protection because it is considered
that the existing regulations are not sufficient to provide protection especially in the
implementation or technical level.
For that Deconstruction of protection offered in this research is with the legal
politics of harmonizing the hierarchy of legislation with the purpose of having a
special state with folklore protection. In technical terms the existence of a hierarchy
can make it necessary for the rules below to carry out the policy as it is based on the
need and awareness of the importance of protection against folklore.

46
 The establishment of laws and regulations, one of which required the legal
principle understood as the normative basis. The legal principle requires a juridical
form to be a juridical rule. In this case the legal principle serves as a guide of the
legislators in the process of forming the law. The guidance takes place by making
itself the basis for the positive law that will be made, as well as the impetus for the
movement of the mind in formulating the formulation or terms of the chapter in a
laws and regulations.
The legal principles embodied in laws and regulations can be seen as a form of
legal politics carried out in the process of formulating legislation. The political
meaning and function for legal protection against folklore is as follows:
1. Political law must achieve the goal of law and the goal of the state.
2. Political law as a benchmark and signs, if a legal rule established cannot be
accountable to justice.

Politics of law in the protection of folklore in its implementation process requires

the legal principle to establish a law. The legal principle is derived from legal or legal
objectives, the need for new states and conscious weaknesses. For that reason the
existence of legal principle is seen as a form of substance of a rule because the
position of legal principle as an impulse to formulate legislation. The legal principle
for protection against traditional folklore is as follows: (Ubbe, 2011, pp. 21-26)
1. Principle of Protection
2. The Principle of Social Justice
3. Utilization Principle
4. The Godhead
5. The principle of Equal Rights

According to Professor Coombe, “most indigenous peoples in the world” have depended
on their traditional knowledges, traditional culture expressions, traditional culture legacies,
biological diversities, agricultures, and important materials for life feasibility (Note 14). One
method to preserve traditional culture expressions as intangible culture legacies is through
preservation and conservation. John Merryman asserts that the most important policy
advocated by indigenous peoples is that traditional culture expressions are produced by
ancestors for the life feasibility of indigenous peoples itself. In certain perspective, particularly

47
from the developed countries, preserving the object of traditional culture expressions is not
preservation described by our reasoning.
Safeguarding traditional culture expressions must involve individuals, communities and
government, or even the nation. Henry Merryman adds that nationalism and internationalism
of traditional culture expressions does not need exclusive theories. The point is that the
contemporary world must find better way to put traditional culture expressions into a legal
standing, perhaps through laws and regulations. Such action may contribute greatly to the
policies that position traditional culture expressions into local, national and international
establishments. However, Henry Merryman does not identify the model needed to develop the
theory.
The process of recording and documenting traditional culture expressions in Indonesia has
been in pursuance of Article 37 of Law No.11/2010 about Cultural Legacies. It aims to respect
cultural nationalism to produce better integration; it also helps to explain the origin of national
histories and traditional culture expressions in Indonesia, especially the teaching about some
cultural and art values that successfully preserved. Henry Merryman also states that the
protection of traditional culture expressions shall be focused on preserving the original form of
traditional culture expressions because this form may still have distinctive quality as the
irreplaceable source. This focus may be useful in understanding the concept of traditional
culture expressions as national cultural legacies because the legacies represent the
manifestation of nationalism and cultural property of a nation where peoples and government
play great role to preserve values in traditional culture expressions. Maria Aurora Fe Candelaria
declares that a nation must take necessary action as the supporter to the sovereignty and
ownership of traditional culture expressions because (Candelaria, 2005):
1. The property of traditional culture expressions is the expressions of a civilization that
must exist or grow in a nation and thus, the citizens have a strong right to keep it as
their national pride.
2. The retention of national sovereignty is needed to protect traditional culture expressions
in proper quality, including the economic values that can be used by citizens.

In 1982, Indonesia adopted its first national Copyright Act, and it repealed the previous
Dutch colonial legislation of 1912 (Antons C. , 2000, pp. 53-54). Indonesia was just one of
several developing countries to replace its colonial copyright act and to introduce national
copyright protection for the first time during the 1970s or 1980s. To facilitate this step, both
WIPO and UNESCO had drafted sets of model provisions in 1976 (the Tunis Model Copyright

48
Law for Developing Countries) and in 1982 (the WIPO/UNESCO Model Provisions on
Copyright). In accordance with the state centred development models of the 1960s and 1970s,
the Tunis Model Law introduced a folklore protection provision, which left the administration
of royalty collection for folkloristic expressions exclusively in the hands of a "competent
authority" at the national level. The model provisions of 1982, on the other hand, foresaw
royalty collection by a "competent authority" of the state or by the “community concerned”
(Weiner, 1987).
Indonesia adopted in 1982 the model of the 1976 Tunis Model Law and introduced art.10
of the Copyright Act, which has now with few modifications been taken over into the Copyright
Act of 2002. The provision is to be found in a part of the Copyright Act, which bears the
heading "Copyright related to works whose author is not known". 49 This is a reference to
art.15.4 of the Berne Convention introduced in 1967 to provide protection to TCE/EoF with no
identifiable authors again via a "competent authority" to represent the authors and protect and
enforce their rights.50
Article 10(1) copyright act of 2002 declares categorically that the state holds the copyright
to prehistorical and historical works and to "other national cultural objects". The Indonesian
state also holds the copyright according to art.10(2) to folklore and to the so-called "products
of popular culture which become common property". The provision continues with a list of
examples of such folkloristic expressions, such as "stories, tales, fairy tales, legends,
chronicles, songs, handicrafts, choreographies, dances, calligraphies and other works of art".
Article 10(3) then stipulates that non-Indonesians must obtain a licence from a "relevant
agency" if they want to publish or multiply such material. The provision of art.15.4 Berne
Convention seems to have inspired art.11 of the Indonesian Copyright Act, which at first sight
could also be relevant for TCE/EoF that are not claimed by specific communities.
According to art.11(1), the state holds the copyright in the interest of the author, if the work
is unpublished and the author unknown. If such works have been published, the unknown
author will be represented by the publisher or again by the state, if both author and publisher
are unknown (art. 11(2), (3)). However, apart from the absence of a "competent authority",
whose designation is required by art.15.4 Berne Convention, the provisions on time limitation

49
For an Indonesian language version of the legislation see Tim Redaksi Tatanusa (ed.), 7 Undang- Undang:
Rahasia Dagang, Desain Industri, Desain Tata Letak Sirkuit Terpadu, Paten, Merek, Hak Cipta, Perlindungan
Varietas Tanaman (Jakarta: PT Tatanusa, 2005). For an English language version see Yasmon (Rangkayo Sati),
Indonesian Intellectual Property Directory (Jakarta: Shortcut, 2006) and the website of the Indonesian
Directorate General of Intellectual Property Rights at http://www.dgip.go.id/
ebscript/publicportal.cgi?.ucid=2662&ctid=77&type=0, Access on 16 May 2021.
50
WIPO/GRTKF/IC/13/4(b) Rev., Annex I, p.14.

49
in the Indonesian Copyright Act make it plain that art.11 in its current form is unsuitable and
apparently not meant to apply to TCE/EoF.
For while the TCE/EoF mentioned in art.10(2) enjoy protection without any time limit
(art.31(1)a.), time-limits of 50 years after publication or after a work becomes known apply to
the works of unknown authors regulated in art.11 (see art.31(1) b. and (2)). Nevertheless, the
fact that these various regulations appear together in the same part of the Act as "works of
unknown authors" means that there is potential of conflict with regards to expressions of
folklore of unknown authors that are not claimed by specific communities and that could also
be claimed under art.11. In this case, such "works" would in fact enter the public domain after
the end of the limitation period. However, while the wording of art.11 allows for such an
interpretation, it will be more appropriate to regard art.10(2) and (3) as specifically addressing
TCEs and, therefore, as the more suitable provision in this context.

50
 CHAPTER 3

PROTECTION OF EXPRESSIONS OF FOLKLORE FROM INTERNATIONAL

PERSPECTIVE

3.1. Legal Protection of Expressions of Folklore From International Perspective

Since the 1970s, WIPO and UNESCO have been working to preserve cultural heritage,
which is described as "Expressions of Folklore." In 1982, a number of models were developed
to help protect TCE/EoF, which could be integrated into national legislation. Furthermore,
WIPO and UNESCO also adopted the provisions titled "Model Provisions for National Laws
on the Protection of Folklore Expressions From Illicit Exploitation and Other Prejudicial Acts".
to protect for example Folk dances, poems, and artistic forms.
The issue of international protection for folklore creations was raised during the preparatory
work of the so-called WIPO "Internet treaties" mentioned below. Several developing countries
proposed that a new attempt should be made to try to work out some kind of sui generis system.
This request was reiterated at the April 1997 UNESCO/WIPO World Forum on the
Protection of TCE/EoF in Phuket, Thailand. This recommendation was considered during the
creation of WIPO's software for the 1998-1999 biennium.
The program contained responses to the issues raised concerning the intellectual property
aspects of the protection of the expressions of traditional culture. It had considered the
experience of the inefficient solution included in the Berne Convention and of the fiasco of the
1984 draft treaty, and reflected the recognition that any international settlement might only
have a chance for success and be workable if it was preceded by a truly thorough preparatory
work.
The Model Provisions also often demonstrate the most common forms of expressions of
folklore. They are categorized in four groups according to the "expressions," namely
expressions by words (verbal), expressions by musical sounds (musical), expressions "by
action" (of the human body) and expressions in which a material object is integrated (tangible
expressions).
On the other hand, tangible expressions by definition are incorporated in a permanent
material, such as stone, wood, textile, gold, etc. The Model Provisions also give examples of
each of the four forms of expressions. They are, in the first case, "folk tales, folk poetry and
Riddles," in the second case, "folk songs and instrumental music," in the third case, "folk
dances; plays and artistic forms of rituals," and in the fourth case, "metal-ware, jewellery,

51
sculptures, terracotta, drawings, carvings, pottery, mosaic, woodwork, paintings, basket
weaving, needlework, textiles, carpets, costumes; musical instruments and architectural
forms."
TCE/EoF are "productions composed of characteristic elements of the traditional artistic
heritage created and preserved by a group or individuals representing the traditional artistic
expectations of such a community," according to the Model Provisions. These performances
featured visual, artistic, and observable gestures, as well as "action expressions."
The terms "architectural forms" appear in square brackets in the Model Provisions to
illustrate the hesitation that followed their inclusion, and to leave it up to each nation to
determine whether or not to use such forms in the domain of safe expressions of folklore. And,
at the moment, several countries have developed protections in their national laws, normally
under copyright, to cover folkloric expressions.
The first African Working Group on Copyright was held in Brazzaville in August 1963,
under the auspices of the UNESCO and the United International Bureaux for the defence of
Intellectual Property (BIRPI), which later became the World Intellectual Property Organization
(WIPO). This international conference, which brought together African country delegates,
international experts, and representatives from international organisations, culminated in the
development of a model bill for African countries.
The Brazzaville meeting was also the first international meeting to examine the legal
problems associated with the protection of folklore and to adopt a recommendation regarding
folklore. It was decided that the best means to safeguard the integrity of African heritage and
to protect it from exploitation would be for local governments to adopt appropriate legislation
(Bortolotto, 2007)51.
Tunisia was the first country to recommend protection on folklore and to introduce special
protection for folklore and works inspired by folklore within its copyright law. Following this
meeting, Tunisia adopted the 1966 Law. Whereas most of the new Tunisian law was patterned
on this bill, especially drawn up for African countries, the Tunisian legislator also tried to be
original, either by departing from the model bill, or by complementing it as he deemed useful
(Joubert, 1966-1967, pp. 180-181).
The subsequent changes at UNESCO and WIPO resulted in the creation of a Working
Group in 1980 to review a draft of Model Provisions proposed for national legislation and also

51
See Also Samantha Sherkin, A Historical Study on The Preparation of the 1989 Recommendation on The
Safeguarding Traditional Of Culture And Folklore

52
international initiatives for the security of TCE/EoF works. The working groups discussed the
related basic documents prepared by WIPO and UNESCO and reached general agreement on
the following points:
(i) It is desirable that there will be adequate legal protection for TCE/EoF;
(ii) Model provisions for supporting such legal protection at the national level should
be created;
(iii) Model Provisions should be developed in such a way that another country that does
not have the existing legislation can implemented the Model Provisions as well as
those where there is scope for improvement of the existing laws;
(iv) Whenever, possible, the Model Provisions should allow the protection under
copyright and neighboring rights wherever possible;
(v) Model provisions for national laws can contribute to regional and sub-regional, and
also eventually international protection for the better protection of TCE/EoF.

The Berne Convention for the Protection of Literary and Artistic Works introduced in 1967,
created a framework for international protection of unknown and unpublished works.52 Its aim
is to provide international preservation for TCE/EoF. 53 The context of Article 15(4) Berne
Convention means, at least some TCE/EoF can be considered a literary or artistic works, even
though they are unfinished works by unknown writers. Any rules contain mythology, in part
or entirely, within the definition of literature and artistic works, 54 while some interpret it
entirely differently, either within copyright laws or in sui generis laws for TCE/EoF
protection.55

52
The Berne Convention for The Protection of Literary and Artistic Works, 1886 As Revised at Stockholm On
July 14, 1967.
53
Article 15.4: in the case of certain unpublished works with an unknown author (a) in the case of unpublished
works where the identity of the author is unknown, but where there is any basis for assuming that he is a citizen
of a member states, it will be the matter of law in that country to designate a competent authority who will
represent the author and have the right to protect and enforce his rights in the member states and (b) the member
states that make such appointments under the provisions of this provision must notify the Director General by
means of a written statement that provides complete information about the designated authority, the director-
general must immediately communicate this declaration to all other member states.
54
TCE/EoF is identified as “all literary, artistic, and scientific works created on national territory by writers
assumed to be nationals of such countries or by ethnic groups, passed down through generations, and
establishing one of the basic elements of traditional cultural heritage” by the UNESCO and WIPO Tunis Model
Law on Copyright for Developing Countries in 1976.
55
This is the approach used by a number of African laws. Folklore is described by Cameroonian law as "all
productions involving aspects of traditional cultural heritage, produced and perpetuated by individuals who are
clearly responding to the expectations of such indigenous community or by the indigenous community itself,
especially folk tales, folk poetry, popular songs and instrumental music, folk dances and shows, as well as
artistic expressions, rituals, and productions of ancestors." Article 10 of Law No. 90-010 on Copyright, passed
on August 10, 1990 in Cameroon.

53
 The interpretation of this term from a copyright perspective can often turn on what
characteristics an TCE/EoF might lack, by contrast with a copyrighted work: for example,
underlying originality, individual authorship, a fixed form, and clear boundaries. For instance,
TCE/EoF “must be distinguished from specific works created by distinguishable persons or
groups of persons at a certain time on the basis of folklore or interpreting certain folkloric

elements.” (Lewinski S. V., 2003, p. 86)

Another effort to protect the TCE/EoF has been to include certain clauses in legislation
governing adjacent or similar rights. The laws regulating neighbouring rights envision indirect
security, such as the International convention for The prevention of Producers of Phonograms,
Broadcasting Organizations, and Performers in 1961 or in other name "the Rome Convention",
which provides for the protection of producers of phonograms, broadcasters' and
performers rights.
To safeguard TCE/EoF related to performances and broadcasting, developed countries
were urged to adhere to the Geneva Convention and the Rome Convention for the Protection
of Producers of Phonograms Against Unwanted Replication of their Phonograms and also to
protect the performance and the broadcast of TCE/EoF.
That being said, according to the Rome Convention Article 3(a) "performers" involve actors,
artists, dancers, musicians and other individuals who act, sing, declaim, play in, deliver or
otherwise perform literary or artistic works." Since TCE/EoF may not conform to the idea of
literary and artistic works in and of themselves, the Rome Convention's meaning of
"performers" does not seem to apply to performers who perform TCE/EoF.
It must be stressed that only the protection of TCE/EoF is at stake. In contrast, individual
works created on the basis of folklore can be protected. Only creative additions by the author
are protected, rather than the elements of pre-existing TCE/EoF. The producer of phonogram
of TCE/EoF music gets protection in relation to the phonogram but the folklore itself does not
get the protection.
Performers of TCE/EoF may be protected in respect of their performance not the TCE/EoF
itself.56 In most of these cases the indigenous community would not in fact benefit from such
protection, since they usually do not make fixations and collections of their own TCE/EoF.

56
The WPPT, Article 2(A)

54
 The Tunis Model Law on Copyright was introduced in 1976. It provides sui generis
protection for TCE/EoF.57 Susanna Frederick Fischer observes that recognizing the doctrinal
difficulties with protecting folklore under copyright law, the drafters of the Model Provisions
preferred a sui generis type of protection. They chose to use the term "expressions of folklore"
in the Model Provisions rather than the more typical copyright law term “works of folklore” in
order to make clear that the protection was sui generis, not copyright (Fischer, 2005).
WIPO and UNESCO assembled an advisory committee in 1982 to establish a sui generis
protection for the Intellectual Property related to TCE/EoF. WIPO and UNESCO jointly
assembled a panel of experts on the international protection of TCE/EoF by intellectual
property in 1984. They had access to a draft treaty based on the Model Provisions of 1982.
Nonetheless, the majority of participants felt it was premature to create an international
convention at the time.58
WIPO Member States ratified the WIPO Performances and Phonograms Treaty in
December 1996. It protects a performer of a TCE/EoF, and hence the principle of related
privileges for the preservation of TCE/EoF performers was recognized. The WPPT creates an
international scheme of protection for TCE/EoF performances. It awards freedom in the
performance of literary and musical works, as well as folkloric expressions. The offered
protection contains moral rights as well as a variety of exclusive economic rights, including
economic rights in their unfixed performances.
The UNESCO-WIPO World Forum on the Protection of TCE/EoF was held in Phuket,
Thailand, in April 1997. WIPO undertook fact-finding missions in 28 countries in 1998 and
1999 to determine traditional expertise holders' IP-related needs and aspirations (FFMs). WIPO
released the findings of the missions in a paper titled "Intellectual Property Needs and
Expectations of Traditional Knowledge Holders, WIPO Report on Fact-finding Missions"
(WIPO, 2003, p. 4). The guidelines indicated clearly that potential activity in these fields
should require the establishment of an efficient international regime for the preservation of
TCE/EoF.59
WIPO founded the Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge, and Folklore in late 2000. Since then, the Committee has
made significant strides in resolving both policy and substantive interconnections between the

57
The Tunis Model Law on Copyright for Developing Countries, 1976, Section 6: Works of National Folklore.
The Object of This Provision Is to Prevent Any Improper Exploitation and To Permit Adequate Protection Of
The Cultural Heritage Known As Folklore.
58
Op.cit, WIPO, Intellectual Property and Traditional Cultural Expressions/Folklore - Booklet No. 1, P. 3.
59
Ibid, WIPO, WIPO/GRTKF/IC/5, P. 4.

55
Intellectual Property system and the interests of practitioners and custodians of TCE/EoF.
Under the Committee's leadership, the WIPO Secretariat released an extensive questionnaire
on national perspectives and performed a series of systematic comparative studies focused on
the questionnaire responses and other consultations and study (Torsen, 2008, p. 199). The
research has served as the foundation for current foreign policy debates and has aided in the
creation of realistic methods.60
The ambitious program of WIPO in this field has brought about the first positive tangible
results. The International Bureau of WIPO conducted a comprehensive analysis on
"Intellectual Property Needs and Expectations of Traditional Knowledge Holders" in July
2000, which included a briefing on a series of fact-finding missions around the world. It also
discusses in depth the various legal means used to protect TCE/EoF, which extend beyond
copyright or copyright-type sui generis security to those intellectual property means that are
especially important from the perspective of the production, manufacture, and delivery of
tangible TCE/EoF creations, such as collective trademark, geographical indication protection,
and the protection against unfair competition (Ficsor D. M., 2005).
WIPO's programs for 2002-2003 and 2004-2005 adopted the same goals and also expanded
on them. As a promising new phase, the WIPO Assemblies formed a permanent assembly, the
"International Committee on Intellectual Property and Genetic Capital, Traditional Culture and
Folklore," to discuss issues of intellectual property security of TCE/EoF, or, as it is often
referred to in the Standing Committee's documents and debates, "traditional cultural
expressions."
And since, the Committee has had extensive debates on these topics, including at its most
recent, seventh, session in November 2004, and it will almost definitely do so again at its next,
eighth, session in June 2005. An increasing number of countries today have national laws
regulating traditional expertise, TCE/EoF, and genetic capital (Basu, 2007).
The debate and recommendations on TCE/EoF between the Convention on Biological
Diversity (CBD) and the TRIPs Agreement are still underway. The debate revolves around the
various questions relating to the adoption of the United Nations Declaration on the Rights of
Indigenous Peoples, which was ratified by the UN General Assembly just two months before
the IP conference in Santa Clara (Phillips, 2008, p. 192).

60
Final Report on National Experiences with The Legal Protection of Expressions of Folklore,
Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore, Geneva, June 13 To 21, 2002.

56
 According to Article 10 of WIPO's Draft Provisions on TCE/EoF, "protection for
TCE/EoF in compliance with all of these provisions does not substitute and is equivalent to
the protection applicability of TCE/EoF and derivatives thereof under other intellectual
property regulations and laws on programs for the safeguarding the TCE/EoF and the
promotion of TCE/EoF, and other legal or non-legal measures for the protection and
preservation of TCE/EoF. (WIPO, 2010).
The Berne Convention may be interpreted as taking TCE/EoF protection into account.
According to art. 15 par. 4 of the Berne Convention, in the case of unfinished works where the
author's identity is uncertain but there is cause to think he is a citizen of a member of the Union
or signatory state, it shall be a matter for law in that country to appoint the competent body
which shall represent the author and shall be entitled to preserve and enforce his rights in nation
of the Union.
Correspondingly, according to Berne Convention art. 7 par. 3, the term of confidentiality
of an anonymous work begins only when the work is made available to the public. It is noted,
however, that signatory countries are not obligated to secure anonymous works whose author
has been assumed to be dead for fifty years.
The protections offered to databases by article 5 of the WIPO Copyright Treaty applies to
data compilations, so inventories and collections of TCE/EoF can be safeguarded. This is not
to be confused with the security of the data itself. The WIPO Performances and Phonograms
Treaty expressly expanded the concept of performer in article 2 to include individuals
conducting TCE/EoF. TCE/EoF are not works, but an artist who performs TCE/EoF, such as
poems, stories, literature, song, and dance, is protected under the principle of neighbouring
rights.
The WIPO General Assembly formed the Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge, and Folklore (IGC) in 2000 to
investigate intellectual property concerns that exist in the sense of access to genetic resources,
traditional knowledge security, and TCE/EoF(Mandate, 2017).
The Committee decided that the WIPO Secretariat should prepare drafts of "an overview
of policy objectives and core principles for TCE protection; and an outline of policy options
and legal mechanisms for the protection of TCE subject matter at its sixth session of
colloquium in March 2004, based on the full range of approaches already considered by the
Committee, along with a brief analysis of the underlying legal framework."
On March, 3 2017 the 33rd session of the IGC held from 27 February to 3 March in Geneva,
Switzerland has drafted a new article which is The Protection of Traditional Cultural

57
Expressions: Draft Article61, with introduction of language largely supported by a number of
countries, in particular on the scope of a potential treaty.
The new draft text, characterised by IGC Chair Ian Goss of Australia as a work in progress,
only to be noted, is going to be considered further at the next session of the committee, from
12-16 June, as reflected in “Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore: Draft Decision of the thirty-third session of
the committee” decision.62
The IGC also issued a list of pending issues63 to be tackled at the next session of the IGC
in June, including policy objectives, subject matter, scope of protection, beneficiaries, and
limitations and exceptions, the two facilitators appointed by the IGC to streamline and clarify
a draft treaty text on 1 March produced a first revision of a set of draft articles, last revisited in
2014.
The first new alternative was proposed in the IGC plenary meeting by the “group of Like-
Minded Countries” (LMCs). The group is composed of countries from the Asia and Pacific
Group, and the Group of Latin American and Caribbean countries (GRULAC), and the African
Group and the LMCs are coordinated by Indonesia.
Alternative 2 of Article 5, proposed by LMCs, seeks to propose a shortened version of the
article, leaves room both to national law and to indigenous customary laws, and includes
consultation with indigenous people. It also gives exclusive right to indigenous peoples to
authorise the use of their traditional cultural expressions (TCEs) by third parties. Furthermore,
it grants indigenous people the right, irrespective of economic rights, to object to distortion,
mutilation, or any modification of their TCEs that would endanger their TCE/EoFs' integrity.
In plenary session, a number of countries supported the language put forward by the
LMCs, such as Senegal on behalf of the African Group, Iran, Colombia, Thailand, Indonesia,
Egypt, Peru, Malaysia, Nigeria, and Paraguay.
Indonesia, speaking on its national capacity, said the instrument protecting TCEs should
set a minimum international standard and provide legal obligations, which would be
implemented at the national level.

61
Https://Www.Ip-Watch.Org/Weblog/Wp-Content/Uploads/2017/03/IGC-Facilitators-Text-3-March-Clean-
March-2017.Pdf, access on 25 November 2020.
62
Https://Www.Ip-Watch.Org/Weblog/Wp-Content/Uploads/2017/03/IGC-Draft-Decisions-Mar-
2017_000002.Pdf, access on 25 November 2020.
63
Https://Www.Ip-Watch.Org/Weblog/Wp-Content/Uploads/2017/03/IGC-List-Pending-Issues-March-
2017.Pdf, access on 25 November 2020.

58
 The Indigenous Caucus also supported the proposal as addressing their concerns, and
allowing details of the instrument to be developed at the national level, with the participation
of indigenous peoples.
Some countries, such as South Africa underlined the support of the indigenous peoples
representatives, and said countries supporting the proposal now hope for some support from
the North.
Also new in Article 5 is alternative 3, drafted by the facilitators as a textual proposal.
Alternative 3 includes some language from the LMCs alternative and seeks to keep a concept
that was introduced in 2014, known as a “tiered approach.” The tiered approach would give
different kinds of levels of rights or measures depending on the nature and characteristics of
the TCE, the level of control retained by beneficiaries, and its degree of diffusion, Georgia,
speaking on behalf of the Group of Central European and Baltic States (CEBS), usually in line
with the European Union position, said they would be interested to hear about more
experiences and have evidence-based discussions. Canada also underlined the need to have a
discussion based on precise examples drawn from reality, which could lead to a community of
views on what is pursued by the instrument.
The US said more discussion would be useful on the tiered approach, which it said is a
valuable concept.
Australia said the LMCs’ proposal had value in particular because it suggested that TCEs
be used in a respectful manner. The Australian delegate said the country looks forward to
exploring the proposal further.
Some developed countries, such as in the European Union are usually wary of exceptions
and limitations, and it is usually the case that developed countries are generally reluctant to
open the door too wide on exceptions and limitations to intellectual property rights, mainly
developing countries, are seeking to limit the scope of limitations and exceptions to the
conditions conferred by the treaty to protect TCE/EoF against misappropriation.
The European Union, are wary that if no exceptions and limitations are included in the
potential treaty, activities such as innovation by companies, and preservation of TCEs by
archives and museums would be impeded.
Article 7 on exceptions and limitations has three alternatives. The first one is very short,
and supported mainly by developing countries, such as Brazil, Senegal for the African Group,
Malaysia, Colombia, Iran, Egypt, Ghana, and indigenous peoples. It is inspired, according to
the proponents, by Article 9.2 of the Berne Convention, and Article 13 of the World Trade

59
Organization Agreement on TRIPS (Limitations and exceptions), which is referred to as the
“three step test.”
Article 9.2 of the Berne Convention reads: “(2) It shall be a matter for legislation in the
countries of the Union to permit the reproduction of such works in certain special cases,
provided that such reproduction does not conflict with a normal exploitation of the work and
does not unreasonably prejudice the legitimate interests of the author.”
Article 7 alternative 1 reads: “in complying with the obligations set forth in this instrument,
Member States may in special cases, adopt justifiable exceptions and limitations necessary to
protect the public interest, provided such exceptions and limitations shall not unreasonably
conflict with the interests of beneficiaries [and the customary law of indigenous peoples and
local communities], nor unduly prejudice the implementation of this instrument.”
The US said the proposed alternative introduced an “entirely novel element in international
law” by requesting that exceptions and limitations do not unduly prejudice the implementation
of the treaty.
The US, the EU, and the CEBS group are in favour of Alternative 3, which provides for
general exceptions and specific exceptions.
Also, in plenary, the US introduced a new alternative, which is now numbered alternative
2, which says member states may adopt exceptions and limitations as may be determined under
national legislation including incorporated customary law.
The alternative also provides that subject matter protected by intellectual property law,
such as trademarks, would not be prohibited by the protection of TCE/EoF, and in any case,
exception should be awarded for activities such as learning, teaching, research, preservation,
display, libraries, museums or other cultural institutions. Also permitted under this exception
would be the creation of artistic or creative works inspired by, based on, or borrowed from
TCE/EoF.
The WIPO Standing Committee on Copyright and Related Rights (SCCR) has been
discussing exceptions and limitations for museums, archives, education, research, and persons
with other disabilities than reading impairment for a number of years, without agreement,
notably because of resistance of some developed countries.
TCE/EoF protection has said that there is unlikely to be a single "one-size-fits-all" or
"universal" international template to defend TCE/EoF comprehensively in a way that meets
national interests, legal and cultural environments, and the needs of traditional cultures in all
nations. Traditional modes of artistic expression, as well as traditional ways of restricting their
use, dissemination, protection, and preservation, are complex.

60
3.1.1. The use of the Rome Convention, Phonograms and Satellites Conventions for an
indirect Protection of certain Expressions of Folklore
As discussed above, there are various categories of expressions of folklore that are possible
subjects of a copyright type of protection but sui generis protection. Some of them and
particularly the productions of "folk art" such as paintings, carvings, drawings, sculptures,
mosaic, pottery, terracotta, textiles, carpets, woodwork, metal ware, and jewellery obviously
cannot enjoy indirect protection by means of "neighbouring rights."
However, in the case of many other important categories of expressions of folklore,
"neighbouring rights" may be used as a fairly efficient means of indirect protection. Folk tales,
folk poetry, folk songs, instrumental folk music, folk dances, folk plays and similar expressions
actually live in the form of regular performances.
Thus, if the protection of performers is extended to the performers of such expressions of
folklore-which is the case in many countries-the performances of such expressions of folklore
also enjoy protection. The same can be set about the protection of the rights of producers of
phonograms and broadcasting organizations in respect of their phonograms and broadcasts,
respectively, embodying such performances.
Such a protection is indirect because what is protected is not the expressions of folklore
proper. "Neighbouring rights" do not protect expressions of folklore against unauthorized
performance, fixation in phonograms, reproduction, broadcasting or other communication to
the public. Therefore, the Rome, Phonograms and Satellites Conventions do not offer
protection against national folklore being performed, recorded, and broadcast by foreigners.
However, folklore expressions are normally performed by the performers of the community
of the country, where those expressions have been developed, if the performances of such
performers and the phonograms and broadcasts embodying their performances enjoy
appropriate protection, this provides a fairly efficient means for an indirect protection of
folklore, that is, protection in the form in which they are actually made available to the public.
The Rome, Phonograms and Satellite Conventions, in general, offer an appropriate basis
for such an indirect protection at the international level the notion of "phonograms" under the
Rome and Phonograms Conventions is sufficiently broad and clearly covers phonograms
embodying performances of expressions of folklore. The same can be said about the notions of
"broadcasting" and "broadcast" under the Rome Convention as they extent to the transmission
of arty kinds of sounds, or of images and sounds, including, of course, sounds, or of images
and sounds, of performances of expressions of folklore, also the notion of "program-carrying

61
signals" under the Satellites Convention is sufficiently neutral and general; it includes any
kinds of programs.
Interestingly enough-and unfortunately-there is, however, a slight problem just in respect
of key notion of "performers" and the notion of "performances" following indirectly from the
notion of "performers" as determined in the Rome Convention. According to Article 3(a) of
the Rome Convention, “performers” include actors, singers, musicians, dancers, and other
entities who act, compose, deliver, declaim, play in, or otherwise perform literary or artistic
works. As previously mentioned, folklore terms do not correspond to the idea of literature and
artistic works in and of themselves. As a result, the somewhat casuistic and rigid concept of
"performers" in the Rome Convention does not seem to apply to performers who perform
TCE/EoF
However, that "neighbouring rights" could not be used for the international protection of
performers of expressions of folklore. The definition only determines the minimum scope of
protection. If national laws define as many of them do performers in a more general and flexible
manner to also clearly include performers of expressions of folklore, then, on the basis of the
principles of national treatment, also foreign performers enjoy protection.
The fact that the scope of application of the Rome Convention and, thus, also the obligation
to grant national treatment, extends to the rights of all performers covered by such more general
and Article 9 of the Convention confirms the flexibility of definitions by stating that every
Contracting State can, by its domestic laws and regulations, apply the rights given by this
Convention to artists who do not perform literary or artistic works.
There is growing agreement at the international level that the protection of performers
should extend to the performers of expressions of folklore. This agreement was reflected in
paragraphs 17 and 28(a) of the memorandum prepared by the International Bureau of WIPO
for the Committee of Experts on a Possible Instrument for the Protection of the Rights of
Phonograms producers and performers.64
The memorandum proposed that the definition should explicitly include the performers of
expressions of folklore. When the Chairman of the Committee prepared the basic proposal
concerning the “New Instrument,” he accepted this idea and included the proposed extended
definition into the draft treaty. 65 Article 2(a) of the WIPO Performances and Phonograms
Treaty, which was adopted in Geneva on December 20, 1996, includes such a term.66

64
See WIPO document INR/CE/1/2.
65
See Article 2(a) in WIPO document CRNR/DC/5.
66
See WIPO document CRNR/DC/95.

62
3.1.2. WIPO-IGC Discussion on Protection of Expressions of Folklore

3.1.2.1.The IGC’s Objectives and Principles

The WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC) was established in 2000 as a forum for WIPO
member countries to discuss intellectual property issues that arise in the context of access to
genetic resources and benefit-sharing, as well as the protection of TK and TCE/EoF.
In the first years of its existence, the IGC was primarily concerned with analyzing and
sharing information on the interface between intellectual property and genetic resources (GRs),
traditional knowledge (TK), and traditional cultural expressions (TCEs). The IGC was granted
a new mandate by WIPO representatives in 2009 to pursue systematic text-based agreements
against legal instruments to secure GRs, TK, and TCE/EoF.
Delegates have made strides toward unified texts since then, including draft provisions
covering a variety of topics such as scope of security, duration of protection, recipients,
privileges given, and exceptions and limits. However, considerable controversy exists in some
of the main fields under consideration.
The IGC conducts substantive consultations with the aim of finding an agreement on one
or more international legal instruments to ensure the successful preservation of GR, TK, and
TCE/EoF. An instruments of this kind may range from a suggestion to WIPO members to a
structured treaty that would bind countries that wished to ratify it.
Making binding international agreements on GRs, TK, and TCE/EoF will be a watershed
moment in international law and intellectual property law, eventually leading to the avoidance
of misappropriation.
Have an international IP agreement in relation to TCE/EoF that will supplement the 2003
UNESCO convention for the safeguarding of Intangible Cultural Heritage, the role of the IGC
has had a wider objective on TCE/EoF, and indigenous communities have been willing to
participate in IGC consultations as observers. The IGC has seen some incremental narrowing
of the texts on GRs, TK, and TCE/EoF over the years.
In parallel, the WIPO secretariat conducted fact-finding missions, regional consultations,
workshops and roundtables on GRs, TCE/EoF and TK, to ascertain the needs and expectations
of indigenous and local communities as well as representatives of government, industry and
civil society around the world. These activities were undertaken by a new WIPO division, the

63
Global Issues Division — established in 1997 — which in 2009 became the Traditional
Knowledge Division.
In sum, the Objectives and Principles of the IGC and its rationales are varied. First, it was
established to address three new themes that shared certain distinct features: GRs, TK and
TCE/EoF were regarded as the “common heritage of humanity” and as intellectual valuables
requiring appropriate forms of IP protection.
Second, GRs, TK and TCE/EoF were seen as the intellectual assets of new key players in
IP policy-making, namely developing countries and indigenous and local communities.
Third, and more broadly, the IGC was conceived as part of a larger and structured
endeavour by WIPO to move to- wards a modern, responsive IP system that could embrace
non-Western forms of creativity and innovation, be comprehensive in terms of beneficiaries,
and be fully consistent with developmental and environmental goals. the IGC was described as
a "forum for discussion." Subsequently, and formalized in 2009, the IGC worked towards the
adoption of an international legal instrument or instruments
The IGC origins can be tracked back to a number of developments both outside WIPO and
within it. A number of parallel and inter-related dynamics at the national as well as international
level in different multilateral forums fashioned a global landscape that was propitious for the
establishment of the IGC.
When looking at the origins of the IGC, it is also important to bear in mind that it brought
together issues which had different international trajectories and backgrounds. TCE/EoF was
the oldest one to have been formally raised at the international level, as it emerged in the agenda
of WIPO and UNESCO in the 1960s.
The revision of the Berne Convention in 1967, where protection is based on originality and
identifiable authorship, fell short of ensuring adequate protection for TCE/EoF. The member
states of WIPO and UNESCO developed in 1982 a set of Model Provisions for national laws
to serve as a source of inspiration for interested countries. In 1996, the WIPO Performances
and Phonograms Treaty succeeded in providing for the protection of the rights of performers
of expressions of folklore.
Demands for the protection of TCE/EoF were first made at WIPO and UNESCO in the
1960s (Bannerman, 2015), at a meeting for African Countries convened by WIPO in
Brazzaville, 1963, countries present requested the protection of TCE/EoF to be examined by
the organization, particularly in the context of the revision of the Berne Convention on Literary
and Artistic Works. However, the revision of the Berne Convention in 1967 did not yield
significant results in this regard.

64
 The WIPO Governing Bodies held consultations on the preservation of folklore in 1978.
WIPO and UNESCO held numerous meetings of a committee of Governmental Experts at their
invitation, which culminated in the introduction of the Model Provisions for National
Legislation on the Defence of Folklore Expressions Against Illegal Exploitation and Other
Prejudicial Acts in 1982.
In 1984, the two organizations jointly convened another group of experts which examined
a draft treaty based on the Model Provisions. However, a majority of the participants
considered it was premature to establish an international treaty. Starting in the mid-1990s, there
was renewed interest in the international protection of TCE/EoF, and in further action at the
international level.
The WIPO Performances and Phonograms Treaty (WPPT), signed in 1996, made clear
mention of "folklore phrases." "Performers" are identified in Article 2 of the Treaty as "singers,
musicians actors/actress, dancers, and other individuals who act, sing, perform, declaim, play
in, interpret, or otherwise perform literary or artistic works or TCE/EoF."
A UNESCO-WIPO World Forum on the Preservation of Folklore held in Phuket in April
1997 adopted a Plan of Action in which participants shared their belief that there is currently
no universal standard protection for folklore and that the copyright regime is insufficient to
guarantee such protection. The Plan of Action recommended organizing regional consultative
fora and forming a Committee of Experts to conclude the drafting of a new international
agreement on the sui generis security of folklore in preparation for the eventual convening of
a Diplomatic Conference.67
In response to this recommendation, WIPO held four regional consultations on the
protection of TCE/EoF in 1999. The consultations urged WIPO and UNESCO to step up their
efforts in this region, with an emphasis on developing a unique model of legal security at the
international level. Three of the four regional consultations accepted the proposal to form a
WIPO Standing Committee to promote potential work in this area.68

67
The Phuket Plan of Action records that ‘[t]he participants from the Governments of the United States of
America and the United Kingdom expressly stated that they could not associate themselves with the plan of
action’. See, UNESCO-WIPO World Forum on the Protection of Folklore, Phuket, Thailand, April 8 to 10,
1997, https://www.wipo.int/meetings/en/details.jsp?meeting_id=3074, access 19 February 2021.
68
These consultations were held for African countries in South Africa (March 1999); for countries of Asia and
the Pacific region in Vietnam (April 1999); for Arab countries in Tunisia (May 1999); and for countries of Latin
America and the Caribbean in Ecuador (June 1999), recommendation of consultations for Arab region,
Asia/Pacific region and Latin America and Caribbean region.

65
 Under the auspices of the IGC, WIPO has carried out numerous studies and developed
other resources such as glossaries, surveys of national experiences, a laws database and training
programs, which have proved useful for member states and others. They are the result of a wide
exchange of data and views between member states based on questionnaires and surveys of
relevant national experiences and practices, from existing sui generis, national or regional
protection systems for TK and TCE/EoF to IP-related clauses in contracts framing the access
and use of GRs.
These resources illustrate the very rich and living cultural traditions that are the subject of
the IGC’s negotiations and help to better identify the different policy and legal options
available.
Since its first session in 2001, the IGC’s achievements also include certain "intangibles"
such as:
- Inclusion and consultation: the IGC has established new benchmarks for inclusion and
consultation;
- Clarity and understanding: age-old IP terms, such as "protection," "originality,"
"novelty" and the "public domain" are being re-thought;
- Content and context: the IGC is considering innovative and sui generis approaches.
Through coordinating closely with other relevant forums, its work has re-energized
WIPO’s engagement with the rest of the United Nations system and other
intergovernmental bodies.

Until then, an international convention on the security of audio-visual performances,

adopted in June 2012 in Beijing, has folklore performers among its beneficiaries, expanding
the privileges already given to them by the WIPO Performances and Phonograms Treaty of
1996.
The negotiating texts on TCE/EoF owe their origins to draft “objectives and principles”
first published by the WIPO secretariat in 2005. The draft texts reflect the many views and
comments of member states and observers who have participated in the IGC over several years.
A similar linkage is manifest in the relationship between the IP protection and the
conservation of intangible cultural heritage in line with international law in the area of cultural
policy, especially with the UNESCO Convention for the Safeguarding of the Intangible
Cultural Heritage which went into effect in April 2006..
That UNESCO Convention have a purpose to ensure respect for intangible cultural
heritage, raise awareness of the importance of the intangible cultural heritage, and ensure

66
mutual appreciation thereof, as well as providing for international cooperation and assistance
to achieve these goals.
This is an important legal development which also provides a framework for practical
initiatives to safeguard intangible cultural heritage. In parallel, the IP system – particularly sui
generis protection of TCE/EoF, as well as the law of copyright and performers’ rights – provide
mechanisms to ensure that expressions of cultural heritage, when safeguarded – documented,
archived, recorded are protected against misappropriation and misuse, such as unauthorized
commercialization.
Protection afforded by IP mechanisms may therefore complement the preservation of
intangible cultural heritage by ensuring that original custodians of traditional cultural works
maintain authority, rights of attribution and integrity, and by safeguarding their legitimate
economic interests.

3.1.2.2.The ongoing WIPO-IGC discussion on Protection of Expressions of Folklore

Since the beginning of the IGC, the WIPO Secretariat focused the question of expressions
of folklore within the context of the UNESCO-WIPO Model Provisions for National Laws on
the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial
Actions in 1982.
Two basic problems have been recognised by the IGC in the protection of TCE/EoF under
the conventional IPRs system: the need to improve protection for tangible expressions of
folklore, particularly handicrafts and the need to internationalise the system of protection.69
Although the language used is different, the situation is generally almost identical to that
of traditional knowledge: there are problems of the applicability of conventional IPRs to the
nature and situation of folklore; and, there are problems relating to misappropriation.
The Fifth Session of the Committee was supposed to address the future direction of WIPO’s
work concerning intellectual property and genetic resources, traditional knowledge and
folklore or traditional cultural expressions, and thus provided an opportunity for developing
countries to seek a more substantive approach and treatment of the relevant issues.
Significant differences between developed and developing countries, however and a lack
of harmony in the approaches of developing countries characterised discussions. The
Committee was unable to reach agreement on its future mandate for transmission as a
recommendation to the WIPO General Assembly.

69
Document WIPO/GRTKF/IC/1/3.

67
 In September – October 2003, at the Thirty Ninth Series of WIPO Assemblies, the work
undertaken to date by the IGC was considered and a decision to extend its mandate, in terms
of structure the Committee remains as an ad hoc intergovernmental committee with a two- year
mandate.
The substantive mandate of the Committee was significantly broadened from its original
discussion of the issues, the key points being directions that the Committee "accelerate its
work", "focus on the international dimension of intellectual property, genetic resources,
traditional knowledge and folklore" and "exclude no outcome, including the possible
development of an international instrument or instruments in this field".
Also as is the case with traditional knowledge generally, the problem of applicability is
primarily a technical one where the nature of folklore often precludes it from effective
protection under conventional copyright, patent and other IPRs mechanisms. This is usually
due to the inapplicability of the conditions for the grant of such rights, such as novelty. The
problems with misappropriation are similar as well, involving both economic and cultural
concerns.
The significance of the Model Provisions is that while they are believed to constitute a form
of intellectual property-type protection,70 they do have some elements that are quite distinct
from the conventional IPRs system relating to offences and sanctions, which, while vague,
clearly suggest, and in some cases require, offences and sanctions that are not tied to the normal
reward for innovation concept but, rather, relate strongly to cultural and moral rights. This is
significant not only in terms of the folklore issues before the IGC, but also more generally in
relation to traditional knowledge.
In paragraph 89, document WIPO/GRTKF/IC/1/3 highlights the relatively non-
controversial point, that folklore is a subset of traditional knowledge. Therefore, if the
protection of folklore can consider cultural and moral rights then so can the protection of
traditional knowledge. As previously discussed, it is crucial that WIPO take such a broad
approach and examines different options rather than focusing purely on adaptations of the
conventional system.
Paragraphs 101, 105 and 106 of document WIPO/GRTKF/IC/1/3 expanded upon proposed
activities relating to the perceived problems in the protection of folklore. The basic proposal
was for the updating of the WIPO-UNESCO Model Provisions, perhaps even through
developing them into an international sui generis legal regime. Specifically, the document

70
Ibid., para. 89.

68
proposed to improve the protection available for handicrafts through an examination of the
options for protecting their style, production methods and other characteristics against
unauthorised copying, use or commercial exploitation. In the same vein, the possibility of
adapting industrial design protection regimes, through a relaxation of novelty standards, was
proposed.
However, while developing countries have continue raising the matter of updating the
Model Provisions and developing an international sui generis regime, the IGC has not moved
forward on the issue. Document WIPO/GRTKF/IC/5/12, for instance, which provides some
details regarding the approaches taken by the IGC on the protection of TCE/EoF, highlights
primarily the development of a practical guide on the protection of TCE/EoF and other issues
relating to collections, databases and registers of TCE/EoF.
The nature of folklore as one of the most obviously culturally significant elements of
traditional knowledge and the character of the efforts by a number of countries and regions in
the field have determined that work of the IGC on this issue is more all-encompassing at times
than that regarding genetic resources and traditional knowledge generally.
However, despite the significant value of document WIPO/GRTKF/IC/5/3, which
describes the key outputs of the IGC regarding the protection of folklore and is meant to serve
as a basis for further work, it remains only a resource and does not address the question of an
international framework, whether based on the WIPO-UNESCO Model Provisions or
otherwise.
At its Thirty-Eighth (19th Ordinary) Session held in Geneva, Switzerland from September
22 to October 1,2009, the General Assembly of the World Intellectual Property Organization
(WIPO) agreed to renew the mandate of the IGC for the next budgetary biennium
(2010/2011).71
Following much debate during the Fourteenth Session of the IGC as to the pace at which
the work of the IGC was moving, the General Assembly specifically mandated the IGC to
continue its work and undertake text-based negotiations with the objective of reaching
agreement on a text of an international legal instrument or instruments which will ensure the
effective protection of TCE/EoF.72
A clearly defined work programme for the 2010/2011 biennium was set out which, in
addition to the 15th session of the Committee scheduled for December 2009, provided for four

71
WIPO/GRTKF/IC/15/REF-DECISION 28, https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=129913,
access on 20 February 2021.
72
Ibid.

69
more sessions of the IGC and three intersessional working groups (IWGs) to be held in the
2010–2011 biennium. The 16th IGC decided that the IWGs shall provide legal and technical
advice and analysis, including, where appropriate, options and scenarios for consideration of
the IGC.
The IWGs shall report to the IGC on the outcomes of their work and submit
recommendations and texts relating to the discussion in the IGC.”73
The First Intersessional Working Group (IWG1) commenced with much anticipation,
(Mara K. , 2010) as it was the first of the three Intersessional organized to support and facilitate
the negotiations of the IGC. WIPO working documents, specifically WIPO/GRTKF/IC/9/4,
WIPO/GRTKF/IC/9/5 and WIPO/GRTKF/IC/11/8A, are to form the basis of the Committee’s
work on text-based negotiations. The order of the three Intersessional was itself a much-
debated issue at the 16th Session of the IGC.
Generally, the European Union and Group B countries wanted Traditional Knowledge to
be debated and negotiated at the First Intersessional, presumably to precede the drafting of text
for an international protocol on the same subject matter traditional knowledge by the
Convention on Biological Diversity CBD, in the context of access and benefit sharing of
biological diversity, genetic resources and associated traditional knowledge.
However, led largely by the African Group, the majority of member states at the 16th
Session of the IGC decided that IWG1 would be on TCEs, with the subject matter of the other
two intersessional to be decided at the 17th session of the IGC.
Other issues surrounding the Intersessional which were debated at the Sixteenth IGC were
the composition of the IWGs. Some states felt that to be most effective, the IWGs should not
be open to all member states but only to a smaller group, perhaps regional representatives.
Others felt that was too exclusionary and would not be representative enough. In the final
analysis, it was decided that participation in the IWGs would be open to all member states and
accredited observers, who would each be represented in plenary by one technical expert in
his/her personal capacity. However additional representatives would still be able to attend and
observe the proceedings by television in another room, but not in the plenary.
Document WIPO/GRTKF/IC/17/4 Prov. was used as the working document for IWG1.
Early in IWG1, it was decided to allow group discussion of issues and articles for ease of
process. Hence the plenary began to discuss the draft document articles in the following order:

73
WIPO/GRTKF/IC/16/REF-DECISIONS, https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=133017,
access on 20 February 2021.

70
objectives and general guiding principles; subject matter of protection (Article 1);
beneficiaries/management of rights (Articles 2 and 4); acts of misappropriation/exceptions and
limitations/formalities (Articles 3, 5 and 7); term of protection/transitional measures (Articles
6 and 9); sanctions/remedies and exercise of rights (Article 8); relationship with IP protection
and other forms of protection, preservation and promotion (Article 10); and, international and
regional protection (Article 11).
- ARTICLE 1
The Article 1 Drafting Group decided to limit the lists of protectable TCE/EoF, as their
view was that delegations kept on adding to the list, making it very unnecessarily unwieldy.
Thus it was decided to outline the applicable criteria but to leave further detailed examples of
protectable TCE/EoF to national, sub-regional and regional levels. The agreed criteria, based
on previous WIPO IGC Secretariat formulations, are: "Traditional cultural expressions" and/or
"expressions of folklore" are any form, tangible or intangible, in which traditional culture and
knowledge are embodied and have been passed on from generation to generation, including,
but not limited to:
(a) phonetic or verbal expressions, such as stories, epics, legends, poetry, riddles and other
narratives; words, signs, names, and symbols;
(b) musical or sound expressions, such as songs, rhythms, and instrumental music;
(c) expressions by action, such as dances, plays, ceremonies, rituals, games, puppet
performances, and other performances;
(d) tangible expressions, such as material expressions of art, handicrafts, architecture and
spiritual forms.
- ARTICLES 2 and 4
In relation to Article 2, the main issue was how to classify the "beneficiaries", specifically
whether to specify "indigenous", " local", "cultural" communities, and/or the state. However,
it was generally agreed that at the international level, the text should be inclusive enough to
allow for all variations and classifications of beneficiaries at the national level.
The second issue with Article 2 was whether a criterion should be included that the
TCE/EoF be held in accordance with customary laws and/or practices, or national laws and/or
practices. The third issue in Article 2 was whether the TC/EoF must be "characteristic" or
"unique" to a particular community. This was also relevant to the issue of whether protected
TCE/EoF (in Article 1) should be only those that are unique as contemplated in Article 1 as
drafted at the IWG1) or should also include TCE/EoF that are shared or practised by more than
one community.

71
 Article 4 was more straightforward and there was generally more agreement on it. The
consensus was that any management of TCE/EoF rights must be authorized by and be done
with the prior informed consent of the relevant community.
- ARTICLES 3, 5 and 7
Article 3 was a much more complex article. This was so because it sought to establish two
levels of protection for two different categories of TCE/EoF – secret and other protected (non-
secret). The rationale is that secret TCE/EoF should have greater protection than non-secret
TCE/EoF.
Article 3 also sought to address economic as well as moral rights, in the end, a drafting
approach more consistent with conventional intellectual property legal construction was
adopted. This included outlining the rights of fixation, reproduction, public performance,
translation or adaptation, and making available or communicating to the public.
However, the expert from Sweden did not agree with that formulation of rights, opting to
draft alternative text requiring merely that the economic and moral interests of beneficiaries be
safeguarded by national authorities in a reasonable and balanced manner.
As to strike some balance in the preferred absence of any registration formalities (Article
7), an exception to the exclusive rights of TCE/EoF holders is proposed where the unauthorized
user of a protected TCE/EoF made a genuine good faith effort to locate the beneficiary and did
not. In those circumstances it is proposed that the beneficiary be entitled only to equitable
remuneration or benefit sharing.
Article 5 on Exceptions and Limitations also produced very interesting and thought-
provoking exchanges by experts in the informal drafting group. Again, the issue was how to
balance the rights of beneficiaries with the rights of other users of TCE/EoF.
Generally, it was agreed that, rather than listing all the possible exceptions and limitations
in the article, which may not be acceptable to all member states, the three-step test approach
could be used to set a common standard, consistent with existing international and national
intellectual property laws. This was not easy to agree, as many indigenous and local
communities are sceptical about further subordinating their knowledge to the constructs and
interpretations of intellectual property law.
The three-step test is itself the subject of varying interpretations. It is not yet clear which
of the three-step tests would be applicable – the one in the Berne Convention or its elaborations
in the WIPO Copyright treaties and the TRIPS Agreement. Perhaps it is that ambiguity and
therefore subjectivity that prompted the inclusion of the three-step test formulation in the draft

72
text. It may also be an agreeable way for some states to feel comfortable with the codification
of these new IP- like rights.
The Swedish expert wanted to ensure that archiving of TCE/EoF, as well as derivative
works and works inspired by TCE/EoF, should not be subject to the TCE/EoF rights of
beneficiaries. He therefore opted to formulate an alternative clause which expressly preserved
that exception. It was generally agreed that TCE/EoF protection would not be applicable when
the TCE/EoF are used in traditional or customary contexts.
In relation to Formalities, the previous version of the WIPO Working Document on
TCE/EoF had proposed that secret TCE/EoF should be registered in order to get protection.
However, it was agreed that to require formalities may be inconsistent with the rights of
TCE/EoF holders and may be onerous and costly on many communities.
Hence it was decided to remove the requirement for any formalities to receive protection.
However, it was decided to retain language in the article that would encourage national
authorities to consider maintaining voluntary registers or records of TCE/EoF to aid prior art
searches and the administration of rights.
- ARTICLES 6 and 9
Regarding Articles 6 and 9 (term of protection and transitional measures), there was
surprisingly more consensus than one may have expected on the question of the indefinite term
of protection for TCE/EoF. The Director General of WIPO, Francis Gurry, is reported to have
said that indefinite protection is not on the table (Mara A. , 2009). The Drafting Group prepared
eight questions for discussion at the next IGC concerning whether the term of protection
(Article 6) should be considered in relation to economic or moral rights, the public domain,
individually or collectively held.
Article 9 addressing Transitional Measures also had alternative options and questions
prepared by the drafting group. The first option was to state that continuing breaches of
TCE/EoF rights should be brought into conformity with the new provisions within a reasonable
period of time after they enter into force. It was argued that the rights of third parties, however,
should be respected and maintained, save and except for those which have "special
significance" for the relevant communities. This issue of transitional measures and existing
third party rights is understandably a very contentious one on which it will not be easy to
achieve consensus.
- ARTICLE 8
In relation to Sanctions/remedies and exercise of rights, the issue debated was whether and
to what extent criminal, as opposed to just civil sanctions and remedies, ought to be available

73
to TCE/EoF rights holders. Several organizations representing indigenous and local
communities wanted both civil and criminal remedies, as are available in respect of
infringement of intellectual property rights.
Some states wanted this to be left to national authorities to choose appropriate remedies,
while others expressly wanted limits on the availability of criminal remedies, to cases of wilful
misappropriation on a commercial scale.
- ARTICLES 10 and 11
Article 10 (relationship to IP protection and other forms of protection, preservation and
promotion) overlaps with third party rights under Article 9. The drafting group seemed to
favour the complementarity of TCE/EoF rights to intellectual property rights and the continuity
of existing intellectual property rights. Article 11 (international and regional protection) was
perhaps the least contentious article. It is generally agreed that national treatment would be
fundamental to enforcing the rights and protection of TCE/EoF internationally.
Experts at IWG1 also recommended that a set of definitions or glossary of key terms be
prepared for consideration by the IGC, which could form the basis of a “definitions” article
within the text. The work of each of the informal drafting groups was consolidated and
presented to all the experts in the IWG plenary subsequently. Both the Draft Text74 from the
informal drafting groups as well as the comments from the plenary75 were presented to the 17th
IGC Session on 6–10 December 2010.
WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and Folklore (IGC) concluded a week long session on June 16, 2017
in which a next draft of an international legal instrument on intellectual property and traditional
cultural expressions was developed. The Thirty-Fourth Session of the IGC also took stock of
the progress made over the 2016-2017 biennium and made a recommendation to the General
Assembly.
A seminar on Intellectual Property and Traditional Cultural Expressions was held on June
8 and 9, 2017, just prior to the IGC session. In the margins of the session, two new WIPO
publications were launched and the WIPO Secretariat announced a new Indigenous
Scholarship aimed especially at Indigenous women and youth. Several side-events were held,

74
Draft Articles On The Protection Of Traditional Cultural Expressions/Expressions Of Folklore Prepared At
IWG 1, https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_iwg_1/wipo_grtkf_iwg_1_3.pdf, access on 20
February 2021.
75
Record Of Deliberations At The First Intersessional Working Group (IWG 1),
https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_iwg_1/wipo_grtkf_iwg_1_4.pdf, access on 20 February
2021

74
including one on capacity-building support provided by the WIPO Secretariat in partnership
with the ABS Capacity Development Initiative.
At its Twelfth Session, held in Geneva from February 25 to 29, 2008, the IGC decided that
the Secretariat would, taking into account the previous work of the IGC, prepare, as a working
document for the Thirteenth Session of the IGC, a document that would:
- describe what obligations, provisions and possibilities already exist at the international
level to provide protection for traditional cultural expressions (TCE/EoF;
- describe what gaps exist at the international level, illustrating those gaps, to the extent
possible, with specific examples;
- set out considerations relevant to determining whether those gaps need to be addressed;
- describe what options exist or might be developed to address any identified gaps,
including legal and other options, whether at the international, regional or national
level;
- contain an annex with a matrix corresponding to the items mentioned in subparagraphs
above.

A first draft of the gap analysis on the protection of TCE/EoF was prepared by the
Secretariat at that time and circulated amongst IGC participants for comments. Taking into
account comments received, a further draft of the gap analysis was prepared and made available
as document WIPO/GRTKF/IC/13/4(b) Rev. for the Thirteenth Session of the IGC, which took
place from October 13 to 17, 2008.
As had been requested by the Committee, this earlier foundational work was summarized
in document WIPO/GRTKF/IC/13/4(a), which accompanied the draft gap analysis in
document WIPO/GRTKF/IC/13/4(b) Rev.
In 2017, the WIPO General Assembly requested the Secretariat to "update the 2008 gap
analyses on the existing protection regimes related to TCE/EoF."
The decision of the IGC at its Twelfth Session requires an analysis of "gaps" in relation to
"obligations, provisions and possibilities which already exist at the international level to
provide protection for TCEs/EoF."
The use of the notion "gap" in the IGC’s decision implies an unmet economic, cultural or
social need. Identifying such economic, cultural or social needs and assessing whether or not
they are “unmet” is an uncertain exercise as there is not yet agreement within the IGC on these
issues. Identifying an unmet need as a "gap" and, above all, determining whether or not it
should be filled, is a matter for decision by Member States.

75
 Proceeding pragmatically, however, in order to respond to the IGC’s decision, identifying
gaps could be undertaken with reference to:
- the forms of protection desired by States and communities (referred to above); and/or
- specific technical perceived shortcomings of the existing IP system in relation to
TCE/EoF. Previous completed questionnaires and in other documents and materials
prepared for the IGC have cited and discussed these at length.76

To provide this analysis with an appropriately specific focus, and in line with previous
discussions and the IGC’s decision of February 2008, it is proposed that the immediate focus
of this analysis be on those objectives that are specifically related to the IP protection of
TCE/EoF.
It is recalled that, taking into account that there are also non-IP options, IGC participants
have cited various IP-related economic and non-economic objectives in relation to TCE/EoF,
such as:
- IP protection to support economic development: some communities wish to claim and
exercise IP in their TCE/EoF to enable them to exploit them commercially as a
contribution to their economic development;
- IP protection to prevent unwanted use by others: some communities may wish to
exercise IP rights in TCE/EoF in order to prevent the use and commercialization of
their TCE/EoF by others, including culturally offensive or demeaning use, and use that
inaccurately represents their cultures; and,
- protection against IP: communities are also concerned to prevent others from gaining
or maintaining IP over TCE/EoF and derivations and adaptations of them. This entails
the use of defensive mechanisms to block or pre-empt third parties’ IP rights that are
considered prejudicial to the community’s interests, or IP rights that have been obtained
without the consent of the community ("defensive protection").

The ways in which different forms of TCE/EoF are used around the world are varied.
Previous Committee documents set out examples of the kinds of appropriations of cultural
expressions that indigenous communities draw attention to.77

76
WIPO/GRTKF/IC/1/5; WIPO/GRTKF/IC/3/11; WIPO/GRTKF/IC/5/3; WIPO/GRTKF/IC/6/3.
77
WIPO/GRTKF/IC/5/3 and WIPO/GRTKF/IC/6/3.

76
 These actual examples suggest that such communities and other stakeholders call for:
- protection of TCE/EoF against unauthorized use, such as reproduction, adaptation,
distribution, performance and other such acts, especially commercial use;
- prevention of insulting, derogatory and/or culturally and spiritually offensive uses of
TCE/EoF;
- prevention of the appropriation of the reputation or distinctive character of TCE/EoF in
ways that evoke an authentic traditional product, by use of misleading or false
indications as to authenticity or origin, or adoption of their "style;"
- prevention of the failure to acknowledge source when TCE/EoF are used;
- defensive protection of TCE/EoF (meaning, the protection of TCEs against the
obtaining of IP rights over the TCE/EoF or adaptations thereof); and
- unauthorized disclosure of confidential or secret TCE/EoF.

To clarify options and to give this analysis a practical and applied focus, it is proposed to
base this analysis on these six main forms of protection as identified and discussed in previous
documents.
In respect of defensive protection of TCE/EoF, it is proposed to focus specifically on calls
for the protection against the unauthorized
(i) exercise of copyright and design rights in works derived from TCE/EoF, including
handicrafts, and
(ii) acquisition of trademark protection in respect of indigenous and traditional names,
words and symbols.

During the next budgetary biennium 2020/2021, continue to expedite its work, with the
objective of finalizing an agreement on an international legal instruments, without prejudging
the nature of outcome(s), relating to intellectual property which will ensure the balanced and
effective protection of genetic resources (GRs), traditional knowledge (TK) and traditional
cultural expressions (TCEs).
The Committee’s work in the 2020/2021 biennium will build on the existing work carried
out by the Committee, including text-based negotiations, with a primary focus on narrowing
existing gaps and reaching a common understanding on core issues, Core issues include, as
applicable, inter alia, definitions, beneficiaries, subject matter, objectives, scope of protection,
and what TCE/EoF are entitled to protection at an international level, including consideration
of exceptions and limitations and the relationship with the public domain.

77
 The Committee will use all WIPO working documents, including WIPO/GRTKF/IC/40/6,
WIPO/GRTKF/IC/40/18 and WIPO/GRTKF/IC/40/19, and the Chair’s Text on the Draft
International Legal Instrument Relating to Intellectual Property, Genetic Resources and
Traditional Knowledge Associated with Genetic Resources, as well as any other contributions
of Member States, such as conducting/updating studies covering, inter alia, examples of
national experiences, including domestic legislation, impact assessments, databases, and
examples of protectable subject matter and subject matter that is not intended to be protected;
and outputs of any expert groups established by the Committee and related activities conducted
under Program 4.
The Secretariat is requested to continue to update studies and other materials relating to
tools and activities on databases and on existing disclosure regimes relating to GRs and
associated TK, with a view to identify any gaps, and continue to collect, compile and make
available online information on national and regional sui generis regimes for the intellectual
property protection of TCE/EoF. Studies or additional activities are not to delay progress or
establish any preconditions for the negotiations.
In 2020, the Committee is requested to provide to the General Assembly a factual report
along with the most recent texts available of its work up to that time with recommendations,
and in 2021, submit to the General Assembly the results of its work in accordance with the
objective of finalizing an agreement on an international legal instruments.
The General Assembly in 2021 will take stock of progress made, and based on the maturity
of the texts, including levels of agreement on objectives, scope and nature of the instruments,
decide on whether to convene a diplomatic conference and/or continue negotiations.
3.2.The Global Protection of Expressions of Folklore
The need for intellectual property protection of TCE/EoF is more strongly perceived in
developing countries, developing countries considered TCE/EoF as an important component
of their cultural heritage and perceived the threats posed by its improper exploitation as a matter
of grave concern.
TCE/EoF is an important element of the cultural heritage of every nation. It is, however, of
particular importance for developing countries, which recognize folklore as a means of self-
expression and social identity. All the more so since, in many of those countries, TCE/EoF is
truly a living and still developing tradition, rather than just a memory of the past.

78
 The strong sentiments of the developing countries on the need for a legal mechanism for
the protection of TCE/EoF, when many countries in the African continent made appropriate
provisions within their copyright laws.
As mentioned above Tunisia was the first country to provide protection for TCE/EoF in its
copyright law in 1966. In Tunisia, "folklore" forms part of the national heritage of Tunisia and
belongs to what is called "le domaine public de l’Etat" – the public domain of the
State.78 Which should not be mistaken for "le domaine public" – the public domain. Whereas
works that are in the public domain can be appropriated by anyone, works that are in the public
domain of the State belong to the collective memory of the people of Tunisia, which means
that they cannot be appropriated by individuals and are protected for an unlimited period of
time.
The 1990 Copyright Law of China indicates that it is the intention to protect expressions
of folklore by copyright but Article 6 of the Law only provides that regulations for the
protection of copyright in expressions of folklore shall be established by the State Council. The
1994 Copyright Ordinance of Vietnam contains a similar provision: "Protection of copyright
granted to folklore works shall be prescribed by the Government."
The majority of the some countries national laws provide for the protection of what they
call "works of folklore"; some other laws (the laws of Benin, Indonesia, Kenya, Mali, Morocco,
Senegal, Tunisia and Zaire) refer simply to "folklore," and two of them (the laws of Chile and
China) use the term that the International Bureau of WIPO considers the most appropriate one:
"expressions of folklore."
Some national laws those of Chile, Ghana, Indonesia, Madagascar, Mali and Tunisia do
not provide a substantive definition; at most, they mention that what is involved is common
national heritage.
The other laws provide more or less detailed definitions. The Copyright Law of China
contains no definition, but this seems only to follow from the fact that the regulation of the
protection of expressions of folklore is left to another piece of legislation.
Only two national laws (the laws of Algeria and Morocco) provide definitions that, in
substance, correspond to Article 15(4)(a) of the Berne Convention, quoted below, in the sense

78
This Is Also Expressed In Article 1 Of The Code Du Pairirnoine Of 1994, Which States That The Cultural
Heritagc Belongs To The Public Domain Of The State. During The Wipo fact-Finding Missions On Intellectual
Property And Traditional Knowledge Which Took Place From 27 February To 13 March 1999, The
Understanding That The Property Rights In Cultural Heritage And Folklore Should Be Vested In The State Was
Identified As Being Common To The Arab Countries Which The Nlission Visited During That Period, Namely
The Sultanate Of Oman, The State Of Qatar, The Arab Republic Of Egypt And The State Of Tunisia.

79
that they use the general notion of literary and artistic works, and only add one element to
differentiate folklore creations from other works, namely that the authors are unknown, but
there is reasonable ground to presume that they are citizens of the country concerned.
All the other national laws include into the definitions those more essential elements which
differentiate "folklore" or "work of folklore" from literary and artistic works proper; namely,
that it is traditional cultural heritage passed on from generation to generation; which means
that-in contrast with the individual, personal nature of the creativity represented by literary and
artistic works. The definitions in some of those laws (the laws of Burundi, Cote d'lvoire,
Guinea, Kenya, Rwanda and Senegal) refer to unknown authors as creators, some others (the
laws of Barbados, Cameroon, Central African Republic and Sri Lanka) to communities, or
groups of communities, while the Law of Congo to both unknown authors and to communities.
The definitions, in general, only cover traditional literary and artistic creations; however,
the definitions in the laws of Benin and Rwanda are much broader and also extend to other
aspects of folklore; for example, to scientific and technological “folklore” (such as, acquired
theoretical and practical knowledge in the fields of natural science, physics, mathematics and
astronomy; the "know-how" of producing medicines, textiles, metallurgical and other products;
agriculture techniques). The protection of such elements of TCE/EoF is obviously alien to the
purposes and structure of copyright.
However, all the national laws providing for "copyright" protection of TCE/EoF, in certain
countries, those bodies are the competent ministries or similar national authorities, while in
some other countries such as in Algeria, Benin, Cameroon, Central African Republic, Congo,
Cote d’lvoire, Guinea, Morocco, Rwanda and Senegal, the national state bureaus for the
protection of author's rights.
Some national laws go so far in the assimilation of TCE/EoF creations to literary and artistic
works that they do not contain any specific provisions concerning the rights protected in respect
of TCE/EoF creations; thus, the general provisions on the protection of works seem to be
applicable this seems to be the case in Barbados, Burundi, Cameroon, Chile, Ghana, Indonesia,
Kenya, Madagascar, Rwanda, Sri Lanka and Zaire.
The other national laws provide for special regime, different from the regime of the
protection of literary and artistic works, the certain laws make certain specific acts, if carried
out for profit-making purposes, dependent on the authorization to be given by a competent
authority, either only the fixation and reproduction of TCE/EoF creations in for example in
Algeria, Mali and Morocco, or, in addition to those acts, also the public performance of such

80
creations for example in Benin, Central African Republic, Congo, Cote d’lvoire, Guinea and
Senegal.
The national laws of some countries such as Barbados, Burundi, Congo and Ghana also
provide for a kind of "right of importation." Under those laws, it is forbidden to import and
distribute in the countries concerned any works of national folklore, or translations, adaptations
and arrangements thereof, without the authorization of the competent authorities.
Certain national laws those of Benin, Cameroon, Central African Republic, Chile, Congo,
Ghana, Guinea, Morocco and Senegal prescribe that, in cases where folklore creations are used
for profit making purposes, fees determined by law or by the competent authority, must be
paid, while other laws those of Algeria, Mali, Rwanda and Tunisia only provide that payment
of fees may be required.
A few national laws also determined the purposes for which the fees collected are to be
used; those laws, in general, provide that the fees must be used for cultural and welfare
purposes of national authors. Under the laws of Central African Republic, Guinea and Senegal,
a part of the fees is to be paid to those who have collected the "works of the folklore" concerned,
and only the rest of the fees is to be used for the said purposes of national authors.
It follows from the very nature of TCE/EoF from the fact that it is the result of creative
contributions of usually unknown members of a number of subsequent generations - that its
protection could not be reasonably limited in time. In the case of the majority of laws providing
for the protection of folklore creations, it can be deduced from the context of the various
provisions that such protection is perpetual, but the laws of some countries such as Congo,
Ghana and Sri Lanka also state this explicitly.
The sanctions of infringements of the rights in "works of folklore," in many countries, are
the same as in the case of infringements of authors' rights. The laws of some countries,
however, provide for special sanctions; they include fines and seizures, and, in certain cases,
also imprisonment.
A number of developing countries national law about protection of TCE/EoF also having
influenced by the Model Provision, had incorporated these provisions in their national
legislations thereby attempted to protect their TCE/EoF. Most of these legislative attempts to
protect TCE/EoF creations, however, were done within the framework of copyright laws, and
also lacked uniformity in the nature and scope of protection.

81
 3.2.1. Protection of Expressions of Folklore in:
3.2.1.1.China
China is an old, historical and large country with many ethnicities that have their own
folklore, in such a diverse set of regional culture throughout China it is no surprise that the
amount of Chinese TCE/EoF for example folk songs and myths are vast and diverse. Over the
years the Chinese government and Universities have been collecting folklore stories and songs
from all over China since 1949. This Collection now boasts over 1.8 million stories and over
3 million folksongs.79 And also for the record Chinese TCE/EoF have developed their native
ethics, philosophy, background, and ritual, into which local fundamentals are integrated,
moreover, Chinese TCE/EoF reflects distinguished Chinese traditional culture and has
significant historical, literary, artistic, or scientific value.
China has actively promoted their TCE/EoF protection both at the international level and
the national level. China has joined a series of important international treaties and at the same
time adopted feasible approaches through domestic legislation and enforcement.
On February 25, 2011, the Intangible Cultural Heritage Law of the People’s Republic of
China was adopted at the 19th Session of the Standing Committee of the 11th National People’s
Congress, which provides a solid guarantee for the long-term implementation and effective
operation of the intangible cultural heritage safeguarding policies. China enacted a new special
law after entering into the Convention for the Safeguarding of the Intangible Cultural Heritage,
China enacted the Law on Intangible Cultural Heritage (Cultural Heritage Law).80 It presented
China’s ambition of promoting a distinguished traditional culture and strengthening the
protection and preservation of intangible cultural heritage which is an important step towards
protecting folklore.
It establishes a channel through which intangible cultural heritage, which reflects
traditional culture and has significant historical, literary, artistic, or scientific value, can be
recommended to be items of protection under this law. The referees may be citizens, legal
persons, or other organizations. Apart from the government that has an obligation to carry out
investigations into items of intangible cultural heritage, citizens, legal persons, or other
organizations may conduct and participate in the investigations.81

79
Https://Sites.Psu.Edu/Chinaportfolio/Proverbs/Myths-And-Folklore/, Penn State Edu, Exploring China,
Access On 30 November 2020
80
The National People’s Congress Standing Committee Of China. “Law Of The P. R. China On Intangible
Cultural Heritage.” Http://Www.Gov.Cn/Flfg/2011-02/25/Content_1857449.Htm, Access On 30 November
2020
81
Law Of The P. R. China On Intangible Cultural Heritage, Article 14, And 20.

82
 Under this law, the government above the country level should adopt suitable measures to
support the activities of inheriting and spreading of TCE/EoF.
The representative inheritors of TCE/EoF who are determined by the Chinese government
have the obligations of carrying out inheritance activities, keeping the relevant physical objects
and information properly, and participating in activities that benefit the public interest.82 In
addition, the law stipulates the legal liabilities in the case of violation. Subject to this law,
violating the provisions may cause administrative liability, or criminal liability. These
administrative regulations more or less refer to certain folklore or ICH 83 but their effects are
weak (Lian, 2008).
Although Chinese copyright law included a rule relating to TCE/EoF early in 1990, the
Copyright Law of China directs that copyright protection measures for TCE/EoF 84 works will
be separately provided by the State Council85, but such measures has not been promulgated so
far. In this situation, a folklore work that meets the copyrightable subject matter requirements
can be protected under the Copyright Law. This rule is unclear because the State Council has
been avoiding its duty and don’t finish the task for establish the specific measures (Zhang, p.
2).
This article remains in the 2001 version of China’s copyright law with no change and in
the 2010 version with minor changes in its English translations. In the English version ruled
that "measures for the protection of copyright in works of folk literature and art shall be
formulated separately by the State Council." 86 The term "EoF" was replaced by the term
"WFLA." But it is very unfortunate that the State Council still did not establish any separate
rules about the protection of TCEs after the revision of China’s copyright law in 2010.
Therefore, Article 6 provides protection to TCEs only in principle, rather than providing
practical, detailed protection mechanism (Li, 2016, p. 29).
And now on the definition of ICH is more in line with that of the ICH Convention
developed by UNESCO87, This law describes ICH as numerous TCE/EoF that are handed down

82
Law Of The P. R. China On Intangible Cultural Heritage, Article 30, And 31.
83
Most Terms Related To Folklore Adapted In Chinese Laws And Regulations Are Eof, Works Of Folk
Literature And Art (WFLA), ICH, Ethnic And Folk Culture (EFC), Traditional Ethnic And Folk Culture
(TEFC)
84
The Term “Eof” Was Maintained In Art. 6 Of The Copyright Law Of The People’s Republic Of China In
2001 (Copyright Law Of 2001) In The English Version.
85
Article 6 Of The Copyright Law Of P.R.C (1990)
86
Copyright Law Of The People’s Republic Of China 2010, Art. 6. WIPO. Http://Www.Wipo.Int/
Wipolex/En/Text.Jsp?File_Id1⁄4186569.
87
Law Of The P. R. China On Intangible Cultural Heritage, Art 2.1, Ichs are the practices, representations,
expressions, knowledge, and skills – as well as the instruments, items, artifacts, and cultural spaces associated
with them – that communities, groups, and, in some cases, individuals recognize as part of their cultural

83
from generation to generation and are accepted as part of cultural heritage, as well as artifacts
and cultural spaces identified with TCE/EoF, such as: relevant languages or traditional oral
literature for example traditional calligraphy, arts, needlework, poetry, dances, theater,
acrobatics, Quyi, medicines, calendars, festivals, traditional sports, and other intangible
cultural heritages.88
Article 2 also rules that "any object and place consisting of ICH shall apply the relevant
regulations from the Law on Protection of Cultural Relics if it is a cultural relic."
Nevertheless, ICH defined in this law embraces traditional medicines and calendars, which
belong to the knowledge and skills created by communities through historically long years of
production and living. The features of the above categories are different from those in the
TCE/EoF defined by the Model Provisions. The definition of ICH in this law essentially
includes most parts of TCE/EoF and parts of TK.89
Early in 2000, some regions in China announced regional regulations related to folklore
before the ICH Law. These regions are normally placing with abundant folklore resources and
many minority residents. In 2000, the province of Yunnan enacted Regulations on the
Protection of Traditional Ethnic and Folk Culture of the Province of Yunnan (Regulations of
Yunnan). In 2002, the province of Guizhou (Guizhou) enacted Regulations on the Protection
of Ethnic and Folk Culture of the Province of Guizhou (Regulations of Guizhou). The term
"EFC" and the term "TEFC," are used in the above regional regulations.
The departments of cultural affairs (a general concept) in China normally use these terms
in many official documents, so they are recognized by most Chinese; indeed, it can be said that
it has been a custom to use the above terms. The definition of both terms is nearly the same,
and includes several categories:
(1) words and languages of all ethnic minorities;
(2) ethnic and folk literature, drama and poetry, folk music, dance, painting, sculpture and
so on;
(3) festivals and ceremonies with ethnic and folk characteristics, culture and arts of
traditional and ethnic, ethnic sports, folk entertainment and other folk custom activities;
(4) dwellings, clothing, utensils reflecting customs in ethnic living and ethnic production;

heritage. This Intangible Cultural Heritage, passed down through generations, is constantly recreated by groups
and communities in response to their environment, interaction with nature, and history, and provides them with
a sense of identity and continuity, promoting respect for cultural diversity and human creativity', Convention for
the Protection of Intangible Cultural Heritage.
88
Law of The P. R. China on Intangible Cultural Heritage, Art. 2.
89
Ibid., Luo Li (2014), P. 39

84
 (5) building, facilities, signs and specially natural places with the features of traditional
culture of ethnic and folk;
(6) manuscripts, ancient books and records, documents, tablets and oral culture;
(7) traditional craft arts and skills;
(8) other manifestation forms of traditional culture of ethnic and folk.90

From 2011 to 2016, nineteen more provinces including autonomous regions and
municipalities have successively introduced their own intangible cultural heritage safeguarding
regulations, thus bringing the total of provinces including autonomous regions and
municipalities that have local intangible cultural heritage safeguarding regulations to twenty-
four. (UNESCO I. C., 2017)
In 2014, protection of TCE/EoF through IP legislations became involved in the Chinese
State Council’s legislative work plan.91 On 2 September 2014, "minjian wenxue yishu zuopin
zhuzuoquan baohu tiaoli" (Regulations on Copyright Protection of Folk Literary and Artistic
Works),92 drafted by the National Copyright Administration of the People’s Republic of China,
were opened to the public for comments.93 This marks the beginning of the countdown for the
adoption of IP legislation for TCEs in China.
The Outline for Cultural Reform and Development during the Twelfth Five-Year Plan
(2011-2015) issued by the Chinese Government mapped out the overall plan for the
safeguarding of the intangible cultural heritage. The document clarified that the main goals of
cultural reform and development during the Twelfth Five-Year Plan were to comprehensively
strengthen the work related to the intangible cultural heritage with effective safeguarding as
the premise and to strive to promote the creative transformation and innovative development
of traditional Chinese culture, among which the revitalization of traditional crafts had already
been written into the Chinese Government’s working papers.94
In 2012, the Ministry of Finance and the Ministry of Culture jointly issued the Measures
on the Management of the Special Funds for the Safeguarding of Intangible Cultural Heritage,
and established the said special funds. The funds are to support the national representative

90
Ibid., Luo Li (2014), P. 60
91
Op.Cit., Luo Li (2016), P. 40
92
Ibid., Luo Li (2016), P. 40
93
National Copyright Administration Of The People’s Republic Of China, ‘Circular Of The National Copyright
Administration On Seeking Comments On The Regulations On The Copyright Protection Of Folk Literary And
Artistic Works (Draft For Comments)’ National Copyright Administration Of The People’s Republic Of China,
Http://Www.Ncac.Gov.Cn/Chinacopyright/, Access On 2 December 2020
94
Ibid., ICH UNESCO, China, P.2.

85
elements, the national representative bearers and the national Pilot Areas for Cultural
Ecological Reserve for their surveys, documentation, preservation, research, transmission and
dissemination.95
The National Development and Reform Commission has made relevant plans and programs
to support the construction of facilities for safeguarding and utilization, and to promote
dynamic safeguarding and transmission.
In recent years, bearing in mind such concepts of safeguarding while improving, bringing
intangible cultural heritage back to modern life, and ecological safeguarding that integrates
intangible cultural heritage with daily life of the people, the Chinese Government has taken a
series of safeguarding actions96:
First, the Chinese Government has strengthened support and funding to heritage bearers
and related practitioners. The efforts include the urgent documentation with 571 national
representative bearers, continuous increase of financial support to national representative
bearers for their practice and transmission activities (In 2016 the subsidy for said activities
reached 20,000 RMB per person), funding for the establishment of 107 facilities for the
safeguarding and utilization of intangible cultural heritage, and the initiative of Study and
Training Program for Chinese Intangible Cultural Heritage Bearers, in which formal and non-
formal education were integrated through intergenerational transmission with entrusted
institutions of higher education, heritage bearers, and practitioners participating in the training
and exchange activities, so as to realize enhanced viability.
Second, the Chinese Government has promoted the revitalization of traditional crafts. For
traditional crafts and their traditional commercial activities, the Chinese Government has
focused on the sustainability potential of the elements through production, circulation and
trade.
Through China Traditional Crafts Revitalization Plan, numerous policies and measures
related to inventorying, talents training, industry support, market expansion, technology
development, intellectual property rights protection, and the cooperation between traditional
handicraftsmen and enterprises and universities have been proposed. As a result, the
transmission, development and recreation of traditional crafts have improved and the cultural
welfare enjoyed by the community and the public has been greatly enhanced.

95
Ibid., ICH UNESCO, China, P.2.
96
Ibid., ICH UNESCO, China, P.2.

86
 Third, efforts have been made to safeguard the intangible cultural heritage as a whole. Eight
national cultural and ecological safeguarding experimental zones have been newly established
to support local governments efforts to safeguard the elements and the natural ecological and
cultural environment that ensures the viability as a whole.
In addition, 4,153 villages have been identified as traditional Chinese Villages and carefully
safeguarded with due respect for the villagers, as well as their lifestyle and cultural context, so
that the viability and intergenerational transmission of intangible cultural heritage are to be
ensured.97
Fourth, the Chinese Government has made efforts to actively launch bilateral, sub-regional,
regional and international intangible cultural heritage cooperation programs. From 2011 to
2016, international cooperation and exchanges were made with regards to the safeguarding and
utilization of intangible cultural heritage between China and dozens of countries. Efforts on
joint study, training, information sharing and mutual learning activities have enhanced mutual
understanding and recognition.
China actively participated in relevant international meetings and organized activities like
the International Festival of Intangible Cultural Heritage in Chengdu, thus establishing regular
platforms for the safeguarding and exchanges of intangible cultural heritage.
China has drafted this report in accordance with the requirements of the Intergovernmental
Committee for the Safeguarding of Intangible Cultural Heritage of UNESCO concerning
periodic reporting by states parties. This report includes three parts. The first part, drafted by
the Chinese Central Government, primarily covers the Chinese Government’s efforts to
implement the Convention for the Safeguarding of the Intangible Cultural Heritage (hereinafter
referred to as “the Convention”) since the last report, including the current status of all elements
included on the Representative List of the Intangible Cultural Heritage of Humanity. The
second part, drafted by the Government of the Hong Kong Special Administrative Region of
the People’s Republic of China, addresses the implementation of the Convention by Hong
Kong SAR. The third part, drafted by the Government of the Macao Special Administrative
Region of the People’s Republic of China, addresses the implementation of the Convention by
Macao SAR98.
Hong Kong Special Administrative Region the Hong Kong Special Administrative Region
Government (HKSARG) attaches great importance to the safeguarding of intangible cultural

97
Ibid., ICH UNESCO, China, p. 3.
98
Ibid., ICH UNESCO, China, p. 3.

87
heritage (ICH) and has been implementing various administrative measures to protect ICH
covering the scope of identification, documentation, research, preservation, promotion and
transmission of the heritage; as well as the compilation of a territory-wide ICH inventory and
the representative list of ICH for Hong Kong.99
The Macao Special Administrative Region (SAR) of the People’s Republic of China has
developed and applied measures to safeguard its TCE/EoF by complying with several national
guidelines: "to focus on protection; salvaging as a priority step; to ensure respectful practices
and to transmit and sustainably develop intangible cultural heritage".
Safeguarding measures were developed by the Macao SAR government immediately after
the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage came into
effect in Macao under the Chief Executive’s Dispatch No. 32/2006.
Since 2006, the Cultural Affairs Bureau, being the competent body for implementing the
Convention, has worked towards the establishment of a legal framework for the local intangible
cultural heritage, conducting relevant surveys and studies, preparing submission files,
supporting practitioners, and strengthening heritage promotion and education. Following much
effort, Macao currently has ten elements identified as intangible cultural heritage, of which
eight have been included in the Representative List of China’s National Intangible Cultural
Heritage and one is in the Representative List of the Intangible Cultural Heritage of
Humanity.100
The government has also pushed for safeguarding efforts to take place on a broader scale
regarding the sustainable development and continuous transmission of intangible heritage.
This has been done through various means, such as policy making, research projects,
offering subsidies for heritage related activities and encouraging heritage transmission, in
addition to holding annual festivities. As the result of a joint effort made by Guangdong, Hong
Kong and Macao, the "Yueju Opera (Cantonese Opera)" was included in the Representative
List of China’s National Intangible Cultural Heritage in 2006 and was inscribed by UNESCO
on the Representative List of the Intangible Cultural Heritage of Humanity in 2009. The
success of the inscription has raised social attention to the Yueju Opera (Cantonese Opera), and
encouraged its safeguarding and transmission.
In recent years, different government departments have progressively increased their
investment in opera development, organised large-scale performances and heritage

99
Ibid., ICH UNESCO, China, p. 4.
100
Ibid., ICH UNESCO, China, p. 4.

88
safeguarding was enhanced through a co-operation mechanism between Guangdong, Hong
Kong and Macao. Meanwhile, the community has been sparing no efforts in promoting and
preserving Yueju Opera (Cantonese Opera), with local opera groups holding performances,
together with training and promotional activities for the ongoing transmission of the heritage.
These initiatives are helping to cultivate the young generations’ interest in Yueju Opera
(Cantonese Opera) and such safeguarding activities have laid a solid groundwork for passing
down and promoting this performing art.
Positive achievements in different social sectors have encouraged the transmission and
sustainable development of different intangible elements through, for example, exhibitions,
performances, cultural exchange and training programmes, promotion within education
institutions, among others. In 1979 the Chinese government for the first time managed to
collect, and examine all the TCE/EoF owned by the country, the systematic collection and
examination were codified into 10 collections and records of events regarding works of art and
literature in the form of: a collection of folk songs of China, Collection of Popular Ballads of
China, Collection of Folk Opera Music of China, Collection of Folk Art Music of China
Collection of Folk Dances of China, Collection of Folk Instrumental Music of China, Annals
of Operas of China, Annals of Folk Art Music of China.
In 1996, the Chinese government in collaboration with the Norwegian government built a
museum of cultural biology at Suojia Village located in Liuzhi in Guizhou Province. The
Chinese government has also initiated a program whereby certain villages and cities are
designated as "land of folklore" and "land of art with distinctive features".
This program is expected to stimulate the efforts of regions to conduct research, collection,
protection, and development of TCE/EoF. Since 1988, it has been determined which villages
and cities have strong artistic characteristics as the land of folklore or land of art with distinctive
features.
These villages and cities get names based on their typical folklore forms, such as the land
of paper cutting, the land of Yanggae dances, the land of bamboo weaving, the land of wood
carving, and others. In these villages and cities, various traditional activities and festivals are
held by the people with their own characteristics.
These activities are carried out to develop cultural industries to improve economic
welfare and cultural development in the region concerned. One example of this activity is the
international kite festival of the Wifang City in Shandong province. Another example of giving
the name "land of folklore" includes Linqu Country which is also in Shandong province. In

89
this area, the folklore industry which is based on gemstones or decorative stones, painting, and
calligraphy has become the main industry of the region concerned.
And since 2004, China has announced a series of regulations related to folklore, many of
which are the foundations of the later Intangible Cultural Heritage Law. In 2004, China
announced the Opinions on Strengthening the Work for the Administration on the Protection
of World Cultural Heritage of China (Gruber, 2008).101
Opinions on the Protection of WCH, insisting on the principle of giving priority to
protection, salvaging first, making good use, and strengthening administration to ensure the
authenticity and integrity of world cultural heritage (WCH) (Council, 2004). This principle is
a foundation for China to design legal regulations and a management system. It is also a
significant principle and guideline for later official notices, measures and regional regulations
relating to ICH. The Ministry of Culture and the Ministry of Finance jointly issued guanyu
shishi zhongguo minzu minjian wenhua baohu gongcheng de tongzhi (Notice on the
Implementation of the Protection of the Project of Chinese National Folk Culture) (Maags,
2018).
In 2005, the State Council announced two official documents referring to ICH protection:
The Notice of the State Council on Strengthening the Protection of Cultural Heritage (China,
Notice of the State Council on Strengthening Protection of Cultural Heritages, 2005) (Notice
on the Protection of CH) and the Opinions of the General Office of the State Council on
Strengthening the Protection of Intangible Cultural Heritage of Our Country (China, 2005)
(Opinions on the Protection of ICH).
Both provisions provide a clear definition of ICH in Chinese official documents for the first
time and suggest conducting a census on ICH, to establish a system for an ICH catalogue,
salvage rare and precious ICH through a collection and storage system, and to establish an
effective system of inheritors. Then the Ministry of Culture announced the Administrative
Measures for the Protection of World Cultural Heritage (China, 2006)(Interim Measures for
ICH) in 2006.

101
Opinions on Strengthening the Work for the Administration on the Protection of World Cultural Heritage of
China 2004. The Opinions were formulated by the Ministry of Culture, the Ministry of Construction, the State
Administration of Cultural Heritage, the National Development and Reform Commission, the Ministry of
Finance, the Ministry of Land and Resources, the State Forestry Administration, the China National Tourism
Administration, and the State Religious Affairs Bureau. Law Info China.

90
 The Administrative Measures for WCH establishes an expert consultation system for the
protection of WCH102 and requires the People’s Governments at provincial level to establish
archives that protect WCH. 103 The Interim Measures for ICH have more details about
regulations on the accreditation of protective institutions and their duties, the accreditation of
representative inheritors, and protection and management measures relating to ICH, which
becomes a good reference in designing the ICH Law.
In the following 3 years, China announced guojia feiwuzhi wenhua yichan baohu
zhuanxiang zijin guanli zhanxing banfa (Provisional Measures on the Management of Special
Funds for National Intangible Cultural Heritage), guanyu jiaqiang laozihao feiwuzhi wenhua
yichan baohu gongzuo de tongzhi (Notice on Improving the Protection of Intangible Cultural
Heritage of Time-honored Brands, zhongguo feiwuzhi wenhua yichan biaoshi guanli banfa
(Management Measures on Chinese Intangible Cultural Heritage Indication) and guojiaji
feiwuzhi wenhua yichan xiangmu daibiaoxing chuanchengren rending yu guanli zhanxing
banfa (Provisional Measures on the Accreditation and the Management of Representative
Inheritors of National Intangible Cultural Heritage Items) (Li, 2016).
As a whole, this series of administrative regulations and departments’ regulations provides
powerful support for the protection and development of China Intangible Cultural Heritage,
nevertheless, the above regulations all provide the protection for ICH as a whole rather than
folklore alone.

3.2.1.2.Morocco
Morocco, is the juncture point of two continents and two seas and borders on the Sub-
Sahara Africa, Europe and the Middle East. Along its north coast, Morocco was open to
successive Mediterranean civilizations, going back beyond the dawn of history and including
the Phoenicians, the Carthaginians, the Greeks and the Romans. Because of that Morocco is a
place where civilizations meet and cultures converge. Its unique geographical location and
historical heritage have influenced and shaped the country’s distinctive personality, enabling
the development of an amazing wealth of folklore.
Moroccan folklore expresses and enhances everyday life of which it is an integral part.
Although loyal to its forms of expression for generations, it is being continually enriched by

102
Administrative Measures for WCH, Art. 6: The State shall adopt the expert consulting system for important
matters relating to the protection of world cultural heritages. The State Administration of Cultural Relics shall
establish an expert consulting mechanism to carry out relevant work.
103
Ibid., Article 12.

91
popular imagination, under the influence of new events on the national, tribal or individual
levels.
Moroccan folklore is extremely diverse. It varies not only from one area to another and
each tribe has their own TCE/EoF, and even from one language to another. The TCE/EoF
traditions are as plentiful as the people themselves.
To protect their diverse TCE/EoF the Morocco government had already involved in both
at the international level and the national level to safeguard their expressions of folklore by
become a member of the Intergovernmental Committee for the Safeguarding of Intangible
Cultural Heritage and also Morocco is a member of the Berne Convention, the WIPO
Copyright Treaty, the WIPO Performances and Phonograms Treaty, and the WTO/TRIPS104,
to strengthen legal protection of expressions of folklore and works inspired by folklore of the
Moroccan.
Following the example of Tunisia, many developing countries including Morocco
expressed the need for a legal mechanism for the protection of folklore enacting provisions in
their copyright laws.
In 1970 Morocco promulgated such a law (Dahir No. 1-69-135 du 25 joumada I 1390, 29
juillet 1970 relatif à la protection des œuvres littéraires et artistiques (on the protection of
literary and artistic property), and published in the official gazette No. 3023), where folklore is
considered part of the national heritage (art. 10.1.), that includes unpublished works whose
identity is unknown but for which it is reasonable to assume that the author is or was a
Moroccan resident (10.4.).
The direct or indirect fixation of folklore with a view to its lucrative exploitation is subject
to the prior authorization of a Committee provided for by the same law, against payment of a
tax the proceeds of which will be spent for purposes of general or professional interest, under
the conditions that will be specified by decree (art.10.2.).
The total or partial surrender of the right to use a work inspired by folklore, or the exclusive
license for such work, is valid only if it has been approved by the Committee established by
the law.
The Law of 1970 was finally replaced by a new Law in 2000 (Dahir No. 1-00-20 du 9
kaada 1420, 15 février 2000, portant promulgation de la loi No. 2-00 relative aux droits
d’auteur et droits voisins, and published in the official gazette No. 4810 on July 6, 2000. It
entered into force on November 18, 2000, where art. 7 further amplifies the protection of

104
Morocco IP Guide, https://www.adams.africa/works/morocco/, access on 2 December 2020.

92
folklore, stating, for example, that in all printed publications, and in connection with any
communication to the public of an expression of identifiable folklore, the source of that
TCE/EoF shall be appropriately indicated by the mention of the community or geographic
place whose expression of the folklore is used (art. 7.3).
And last, Law No. 34-05 of February 14, 2006 (Dahir No. 1-05- 192 of 15 Moharrem 1427
- February 14, 2006), which was published in the official gazette No. 5400 on March 3, 2006
and in force six months after its publication in the official gazette, It was not retroactive, and
does not apply to works that had already entered the public domain.
According to Law No. 34-05 of February 14, 2006 "Expressions of folklore" means
productions of elements characteristic of the traditional artistic heritage developed and
preserved on the territory of the Kingdom of Morocco by a community or by individuals
recognized as meeting the traditional artistic expectations of this community and comprising:
popular tales, popular poetry and mysteries; songs and popular instrumental music; popular
dances and shows; productions of the popular arts such as drawings, paintings, sculptures,
terracotta’s, potteries, mosaics, works on wood, metallic objects, jewels, textiles, costumes (1-
05-192/2006 Art.1(10)).
TCE/EoF shall be protected for the following uses, where those uses have a commercial
aim or lie outside the conventional or customary framework: reproduction; communication to
the public through representation, performance, broadcasting or cable transmission, or any
other means; adaptation, translation or any other modification; fixation of expressions of
folklore (1-05-192/2006 Art.7(1)).
The right to authorize the acts referred to in paragraph (1) of this Article shall belong to the
Moroccan Copyright Office (1-05-192/2006 Art.7(4)).
The sums received in relation to this Article shall be allocated for professional purposes
and to cultural development (1-05-192/2006 Art.7(5)).
According to Law No. 34-05 of February 14, 2006 Works protected by copyright applies
to any original (created) literary or artistic work, regardless of its type, mode of expression,
value or purpose. This includes works expressed in writing; computer programs; lectures,
addresses, sermons and other oral works; musical works with or without text; dramatic and
dramatico-musical works; choreographic works and dumb shows; audio-visual works
including cinematographic works and video grams; works of fine art, including drawings,
paintings, engravings, lithographs, printing on leather and all other works of fine art; works of
architecture; photographic works; works of applied art; illustrations, maps, plans, sketches and
three-dimensional works relating to geography, topography, architecture or science;

93
expressions of folklore and works inspired by folklore; drawings of garment industry designs
and titles of works provided they are original (Articles 3 and 4) (UNESCO).
Copyright also applies to the following derivative works provided they do not prejudice to
the rights in the original work (Article 5):105
- Translations, adaptations, arrangements of music and other transformations of works,
and expressions of folklore.
- Collection of literary or artistic works; expressions of folklore or simple features or data
such as encyclopaedias, anthologies and databases, whether in machine-readable or
other form, provided that the selection and arrangement of their contents constitute
intellectual creations.

TCE/EoF are protected by copyright if used, for commercial purposes or outside the
traditional or customary context, for reproduction; communication to the public through
representation, performance, broadcasting or cable transmission, or any other means;
adaptation, translation or any other modification; and fixation of TCE/EoF.
TCE/EoF are excluded from copyright protection if the use is for personal reasons; for
teaching or scientific research purposes; for news reporting to the extent justified by the object
of the report, and in cases where a work can be used without the authorization of the author or
the right holder (Article 7)106
It is considered as copyright infringement if someone violating intentionally, using
unlawfully and without the authorization of the Moroccan Copyright Office expressions of
folklore in a manner not permitted under the copyright law for profit-making purposes that can
infringe the exclusive rights (moral and economic) of copyright holders and holders of
neighbouring rights including violations committed by service providers.107
Also, in recent years Morocco Government has draft a Law on the Management of Cultural
Heritage contains nine articles on intangible cultural heritage; it is primarily concerned with
the terms of the conception of intangible elements and their safeguarding. The year 2012 saw
the adoption of a national heritage strategy entitled "Heritage 2020", which is dedicated
especially to the promotion of heritage festivals, and the encouragement of mechanisms for
disseminating information and knowledge.108

105
UNESCO, World Anti-Piracy Observatory, Morocco
106
UNESCO, World Anti-Piracy Observatory, Morocco
107
(Articles 63, 64, 65 And 65.4) Which Identify Acts That Constitute Copyright Infringements
108
Op.cit., ICH UNESCO, Morocco, p. 1.

94
 The main institution for training in the safeguarding of intangible cultural heritage is
the Institute National des Sciences de l’Archéologie et du Patrimoine (INSAP, National
Institute of Sciences of Archaeology and Heritage), which teaches both cultural resource and
heritage safeguarding as well as the disciplines of anthropology and archaeology.109
Several universities also offer Master’s degrees in cultural heritage safeguarding that
include intangible cultural heritage, and institutes for training in tourism professions also
include modules on intangible cultural heritage. National non-governmental organizations also
contribute to strengthening the capacities of a number of actors through their annual action
plans, especially the Alumni Association of INSAP.110
INSAP has gathered a large amount of intangible cultural heritage
related documentation over the years, which is held at its Library. In addition, the Division de
l’inventaire et de la documentation du patrimoine (DIDP, Division for Inventorying and
Documentation of Heritage) manages a Documentation Centre and a photo archive which
contains nearly a century’s worth of documentation on cultural heritage, much of which is
intangible.
The DIDP is currently digitizing this archive both to safeguard it and to make it available
online to researchers and the public. This has been undertaken through a joint cooperative
program entitled "Cultural heritage and creative industries as a vehicle for development in
Morocco". This program is jointly implemented by the Ministry of Culture and the UNESCO
Office in Rabat, with financing from Spain.
IRCAM (Institut royal de la culture amazighe) The Royal Institute of Amazigh Culture
was established in 2001 to conduct research on Amazigh culture and has gathered
documentation over a ten-year period. Other public institutions with important documentation
on intangible cultural heritage are national TV channels and the Moroccan Cinematic Institute;
several national and local non-governmental organizations also hold important intangible
cultural heritage documentation.111
Inventorying in Morocco is carried out in an integrated system that covers all heritage, both
tangible and intangible; one of its four inventory lists is dedicated to intangible cultural
heritage, entitled the List of Intangible Heritage. This is in the process of being developed, with
64 inventory files having been created thus far.

109
Ibid., ICH UNESCO, Morocco, p. 1.
110
Loc.cit., ICH UNESCO.
111
Loc.cit., ICH UNESCO.

95
 The DIDP is the body that administers the inventorying process and, in 2010, a computer
system was set up to allow for the easy management of the inventory data and for open public
consultation. In addition, information is gathered in the field by other bodies, both
governmental (IRCAM) and non-governmental, such as the Association de Développement de
la Vallée de Draâ (ADEDRA, the Association for Development of the Draa Valley).112
The main criteria for inscription are that the element presents an undeniable interest for the
continuity and the transmission of the culture, identity, memory and historical personality of
Moroccans. On the ground, the main criterion is that it is initially proposed by the community
that regards it as forming part of its cultural heritage and identity.113
In cases where the DIDP is responsible for inventorying (on the basis of a topographic or
thematic programme), the main criterion is the vulnerability of the intangible cultural heritage
within a specific region, for example due to profound changes that could affect the viability of
intangible cultural heritage elements. Hence, viability is taken into account and field missions
by the DIDP are often undertaken in rural areas where heritage remains vital and yet faces great
challenges.114
In addition to pre-existing data (from research projects, fieldwork etc.), current information
is collected through an inventory form that requires a particular set of information and
completed by photographic and audio-visual recording. The methodology for this operation
was set out in 2008 in an inventory manual developed by the DIDP (for heritage in general)
and, later, by a manual developed in 2010 (for intangible cultural heritage in particular).115
The final step is entering the information on the forms in a digital inventory; there is no
specific approach for updating the inventory but this computerized system allows for easy
revision and additions and updating may occur as a result of new information discovered during
the course of fieldwork. During inventorying and research activities, the customary practices
of cultural communities are respected in a systematic manner; equally, communities may also
observe their customary rules in relation to festivals, exhibitions and other promotional
activities.116

112
Loc.cit., ICH UNESCO.
113
Loc.cit., ICH UNESCO.
114
Loc.cit., ICH UNESCO.
115
Loc.cit., ICH UNESCO.
116
Loc.cit., ICH UNESCO.

96
 3.2.1.3.Australia
The history of Australian consideration of the protection of TK and TCE/EoF has been long
discussed, in 1974, the Commonwealth Government set up a Working Party on the Protection
of Aboriginal TCE/EoF. Its 1981 report recommended the enactment of an Aboriginal
TCE/EoF Act to prohibit uses of Aboriginal arts and cultural material that were offensive to
117
Aboriginal people and their tradition. the report's recommendations were neither
implemented nor followed up.
And in 1981 a report was produced as a result of the working party’s investigations.118 The
working party’s major recommendation was the enactment of an Aboriginal Folklore Act,
which would protect Indigenous artistic and cultural material against improper use. However,
the recommendations of the report were not acted upon, and subsequently no such Act was
drafted.
In 1986 the Australian Law Reform Commission in a report on Aboriginal customary laws
recommended legislative protection for secret/sacred material and the prohibition of the
mutilation, debasement or export of items of folklore and the use of items of folklore for
commercial gain without payment to traditional owners.119
Also, in the same year an extensive study was carried out by the Australian Law Reform
Commission (ALRC) on the recognition of Aboriginal customary laws.120
The ALRC Report was based on wide-ranging consultations with Aboriginal and non-
Aboriginal people, and applied a flexible (or "functional") approach towards the recognition of
Aboriginal customary law in five areas: marriage, children and family property; the criminal
law and sentencing; problems of evidence and procedure; local justice mechanisms for
Aboriginal communities; and hunting, fishing and gathering rights.121
The ALRC Report also supported special legislative measures for the use of sacred secret
material other than in accordance with custom, secondly, the mutilation, destruction
debasement or export of items of folklore, and thirdly, the use of items of folklore for
commercial gain without payment of remuneration to traditional owners.122

117
Australia, Department of Home Affairs and Environment, Report of the Working Party on the Protection of
Aboriginal Folklore, Canberra, December 1981.
118
Ibid.
119
Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws, Report No 31,
Canberra, AGPS, 1986, vol 1, (470).
120
Australian Law Reform Commission, Recognition of Aboriginal Customary Laws, Report No 31 (1986)
(‘ALRC Report’).
121
Ibid.
122
Ibid.

97
 The Commonwealth government in 1994 released an Issues Paper which focused on the
copyright regime and the protection of Indigenous arts and cultural expression.123 An Inter-
Departmental Committee on Indigenous Arts and Cultural Expression was established to
evaluate submissions, consider legislative and policy reforms and make recommendations.
However, the change of government in 1996 shifted the focus of reform in this area, and
no report was produced by the new government in response to the numerous submissions
received.
In 1997, the Aboriginal and Torres Strait Islander Commission (ATSIC) established an
Indigenous Reference Group on Indigenous Cultural and Intellectual Property (IRG), and also
funded the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS) to
develop reforms for the protection and recognition of Indigenous cultural and intellectual
property.
Terri Janke’s influential Our Culture Our Future report recommended various reforms,
including sui generis legislation to protect Indigenous cultural and intellectual property.124
However, again, the report did not actually result in any legislative reform of Australia’s
intellectual property laws.
Protection of Indigenous TCE/EoF was generally sought under the Copyright Act 1968,
and the Aboriginal and Torres Strait Islander Heritage Protection Act 1984. However, both
statutes were unsuitable for granting protection to folklore art because they were thought to
protect only Aboriginal places, objects and remains which have been stolen. By limiting the
object of protection, a valid protection for folkloric works could not be established (Blakeney,
Protecting The Knowledge And Cultural Expressions Of Aboriginal Peoples).
The Australian delegation participated in the Working Group of Legal Experts Workshop
(held in Noumea in June 2002 to discuss and develop a model law designed to protect the
traditional knowledge and cultural expressions of Pacific Island countries) and decided that a
new global society, technological breakthroughs and emerging new rights 125 needed a new
system of intellectual property rights for Indigenous peoples.
While there have been several Australian cases which have considered the legal issues
relating to the protection of Indigenous knowledge and culture, three copyright cases in the
1990s very clearly exposed the extent of the difficulties of using Western intellectual property

123
Attorney-General’s Department, Stopping the Rip-Offs: Intellectual Property Protection for Aboriginal and
Torres Strait Islander Peoples (Issues Paper, Commonwealth of Australia, October 1994).
124
Op.cit., Terry Janke, 2003.
125
Alessandra Narciso, Thesis Submitted to University of Leeds, The Legal Protection of Folklore: Can
Copyright Assist or is a Sui generis Right Necessary?, p. 110.

98
laws to protect Indigenous art: Yumbulul v Reserve Bank of Australia; (Terry Yumbulul v
Reserve Bank of Australia; Aboriginal Artists Agency Limited and Anthony Wallis [1991]
FCA 332; 21 IPR 481 , 1991) Milpurrurru v Indofurn Pty Ltd; (Comcare v Vanessa Mccallum
[1994] FCA 975; (1994) 19 Aar 142 (1994) 49 FCR 199, 1994) and Bulun Bulun v R & T
Textiles Pty Ltd. (John Bulun Bulun & Anor v R & T Textiles Pty Ltd (includes corrigendum)
[1998] FCA 1082, 1998) What these cases revealed was that while Western copyright law
could be used to protect the individual rights of Indigenous artists, it could not be adequately
used to protect the communal interests (and rights) of Indigenous communities (Roy, 2015).
Copyright law does not provide for a communal right over images or stories — although
other legal remedies may be available (such as the recognition of a fiduciary relationship
between the artist and his/her community).126 While the Copyright Amendment (Indigenous
Communal Moral Rights) Bill 2003 attempted to introduce a communal right, it received little
exposure and did not proceed (even after a second attempt was made three years later)
(Anderson J. , 2004).
Australian law does not specifically address the registration of TCE/EoF or TK nor require
inquiry into whether a word or design is used with the consent of the relevant community.127
However, the certification marks regime in the country has allowed the National Indigenous
Arts Advocacy Association to register two certification marks: the "label of authenticity" and
the "collaboration mark."128 The certification marks are used to certify that a work is authentic
and made by indigenous people who, “in compliance with the certification mark rules, have a
claim to the type of style, knowledge, or information embodied in that product.129
Without a registered trademark, indigenous entities may still be able to act against
nonindigenous entities who adopt their TCEs as trademarks.130
Australian trade practices law protects consumers from conduct that is "misleading or
deceptive"131 and from false representation as to "sponsorship, approval or affiliation."132

126
Bulun Bulun v R & T Textiles Pty Ltd [1998] FCA 1082; (1998) 86 FCR 244. See also Kirby J’s comments
in Western Australia v Ward (2002) 213 CLR 1, 247–8, where his Honour stated that intellectual property rights
could be recognised as an incident of native title. Notably, Kirby J commented later in the judgment that ‘it must
also be accepted that the established laws of intellectual property are ill-equipped to provide full protection’ of
Indigenous knowledge and culture
127
Op.Cit, Michael Blakeney, 2015, p. 32–33.
128
Ibid., p.36
129
Ibid, p. 36.
130
Ibid, p. 36.
131
Australia Trade Practices Act 1974 (Cth) s 52(1).
132
Australia Trade Practices Act 1974 (Cth) s 53(d).

99
 Indigenous entities may have gained a reputation as producers from specific regional areas
and may be able to show that consumers are purchasing indigenous goods based on this
reputation.133
Representatives of communities in Australia can challenge the unauthorized use of their
TCEs in court.134 The Federal Court of Australia previously ruled in favor of Aboriginal artists
against a nonindigenous entity which produced carpets incorporating “dreaming” images that
belonged to an Aboriginal community.135 "Dreaming the mythological time when the natural
world was created" has played an important role in the development of Aboriginal culture in
Australia.136
Among the different clans of Aboriginal communities of Australia, dreaming stories "have
been used to pass on important knowledge, cultural values and belief systems to later
generations."137 Through TCEs in the form of "song, dance, painting, and storytelling which
express the Dreaming stories, the Aboriginal communities of Australia have maintained a link
with the Dreaming from ancient times to today, creating a rich cultural heritage."138
Dreaming stories have been reproduced in paintings and artworks.139 The Federal Court of
Australia’s ruling solidified the affirmative rights of communities to control the use of their
TCEs and prevent others from using them.140
In 2003 Australian Government Indigenous Communal Moral Rights (ICMR) Bill to
protect the cultural interests of indigenous communities. ICMR was considered to be a possible
tool for indigenous peoples to prevent derogatory treatment of works drawing on their
traditions, customs and beliefs.
The goal was to entitle indigenous peoples to "take legal action to protect against
inappropriate, derogatory or culturally insensitive use of copyright material," and to give the
peoples "legal standing to safeguard the integrity of creative works embodying traditional
community knowledge and wisdom." Aspects of the proposed draft Bill were criticized by
indigenous people and other interest groups. While the idea of the Bill remains active, it has
not yet been passed (Anderson M. T., 2010, p. 40).

133
Op.Cit., Terry Janke, 2003, p. 38.
134
Milpurrurru v Indofurn Party Ltd., 30 IPR 209, 210, 1994.
135
Ibid., Milpurrurru.
136
World Intellectual Prop. Org., Protect And Promote Your Culture: A Practical Guide To Intellectual Property
For Indigenous Peoples And Local Communities, 2017, p. 28.
137
Ibid., A Practical Guide, p. 28.
138
Ibid., A Practical Guide, p. 28.
139
Ibid., A Practical Guide, p. 28.
140
Op.cit., Milpurrurru.

100
 The Moral Rights Act 2000 amended the Australian Copyright Act 1968 to include the
protection of the moral rights of attribution and the right to not have a work treated in a
derogatory manner.
In 2001, the Coalition Federal Government, in its arts policy for the general election of that
year, promised that amendments to this moral rights regime would "give Indigenous
communities a means to prevent unauthorised and derogatory treatment of works that embody
community images or knowledge."141
On July 23, 2001, the Government announced an independent Inquiry into the
contemporary visual arts and craft sector to recommend actions for governments and the sector
to enhance their future (Australia, 2002, p. 21).
The inquiry found that the communal rights of Aboriginal Peoples were ignored in the
current moral rights law and that "the right to integrity and prohibition of derogatory treatment
of an artistic work embodying traditional ritual knowledge should be extended to include a
treatment that causes cultural harm to the clan" and that there should be amending
legislation.142
In December 2003, a draft Copyright Amendment (Indigenous Communal Moral Rights)
was distributed for comment to a number of organisations (Anderson J. , 2004). The Bill was
criticised for its complexity and the ambiguity of its language (Sexton, 2017, pp. 8-10) and, in
February 2006, it was announced that a revised version of the Bill would be made available
later that year but, this Bill languished, and in 2006, the 215-page Copyright Amendment Act
2006 was enacted to give effect to the copyright provisions of the Australia–United States Free
Trade Agreement of 2004 (Weatherall K. G., 2007, p. 31).

3.2.1.4.New Zealand
Māori is the indigenous people of New Zealand, they came to New Zealand more than 1000
years ago from Polynesian homeland of Hawaiki143 in New Zealand Maori cultural expressions
hold a special place in New Zealand’s identity.

141
Liberal Party of Australia, The Howard Government: Putting Australia’s Interests First: Election 2001 - Arts
for All (2001) 21, quoted in Aboriginal Education Board of Studies, NSW, ‘Indigenous Communal Moral
Rights (ICMR), https://ab-ed.nesa.nsw.edu.au/go/aboriginal-art/protecting-australian-indigenous-
art/background-information/proposals-for-change/indigenous-communal-moral-rights-icmr, see also https://ab-
ed.nesa.nsw.edu.au/go/aboriginal-art/visual-arts-7-10/aboriginal-%20art/protecting-australian-indigenous-
art/background-information/proposals-for-change/indigenous-%20communal-moral-rights-icmr//aboriginal-
%20art/protecting-australian-indigenous-art/background-information/proposals-for-change, access on 2
December 2020.
142
Ibid, Report of the Commonwealth, 2002, p. 152
143
Maori Culture, https://www.newzealand.com/int/maori-culture/, access on 5 December 2020

101
 Even though New Zealand’s intellectual property laws were originally based on the laws
of the United Kingdom, more recent amendments reflect an increased recognition of Maori
concerns (Sumpter, 2013, p. 13).
Any discussion of Maori rights in the context of New Zealand law should begin with the
Treaty of Waitangi. Signed in 1840 between representatives of the British Crown and 540
Maori chiefs, the Treaty is "the founding document of government in New Zealand." (Keith,
2020) The Treaty’s preamble and three articles set out the principles upon which the British
Crown was given the right to govern and develop British settlement in New Zealand, with
Maori guaranteed full protection of their property rights as well as the rights and privileges of
citizenship.144
Article 2 of the Treaty is of particular relevance in the context of intellectual property rights.
There are some important differences in the wording of the English and Maori versions of this
Article, both of which are considered to be official. The English version guaranteed Maori "full
exclusive and undisturbed possession of their lands and estates, forests, fisheries and other
properties which they may collectively or individually possess so long as it is their wish and
desire to retain the same in their possession."145
In comparison, the Maori version guarantees “tino rangatiratanga” (full authority or
chieftainship) over all "taonga"146 (treasures, which to Maori includes both the tangible and
intangible, material and non-material) (Tribunal, 2011).147
These and other differences in the two texts have been the source of much debate. 148 As a
consequence, it is now common to refer to the intention, spirit, or "principles" of the Treaty.
The principles of the Treaty can be seen as having emerged from the reports of the Waitangi
Tribunal149 and other sources and include "the principle of active protection, the tribal right to
self-regulation, the right of redress for past breaches, and the duty to consult."150

144
The Treaty of Waitangi 1840, arts. 2 & 4 (English), https://nzhistory.govt.nz/politics/treaty/read-the-
treaty/english-text, access on 5 December 2020
145
Ibid., Article 2
146
The Treaty of Waitangi 1840, art. 2, https://teara.govt.nz/en/treaty-of-waitangi/page-2, access on 5 December
2020
147
In some reports, the Tribunal has noted that taonga means “all things highly prized by Maori,” which
includes tangibles such as fishing grounds, and intangibles such as the Maori language and life force of a river.
148
See Differences Between the Texts, New Zealand History Online
https://nzhistory.govt.nz/politics/treaty/read-the-Treaty/differences-between-the-texts, access on 5 December
2020
149
The Waitangi Tribunal was established in 1975 to investigate alleged breaches of the Treaty by the Crown.
See Treaty of Waitangi Act 1975, s 5 (setting out the functions of the Waitangi Tribunal),
http://www.legislation.govt.nz/act/public/1975/0114/latest/ DLM435368.html.
150
Particular “principles” of the Treaty were set out in the judgment of Lord Cooke of Thorndon (then President
of the New Zealand Court of Appeal) in New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641.
The judgment listed the principles as being: the acquisition of sovereignty in exchange for the protection of

102
 Such "principles of the Treaty of Waitangi," and the need to take these into account in
government decision- making processes and other activities, are referred to in several Acts of
Parliament. Apart from these references, the Treaty itself has not been incorporated into New
Zealand’s domestic law.
The Maori people of New Zealand have been "vocal and active within the international
indigenous struggle for intellectual property rights and protections." (deBeer, 2006) The First
International Conference on the Cultural and Intellectual Property Rights of Indigenous
Peoples was held in New Zealand and resulted in the Mataatua Declaration.151 In fact, in the
early 1990s, the First International Conference on the Cultural and Intellectual Property Rights
of Indigenous Peoples was held in New Zealand and resulted in the Mataatua Declaration.152
The Declaration stated that "Indigenous Peoples of the world have the right to self-
determination and in exercising that right must be recognized as the exclusive owners of their
cultural and intellectual property."153
The Declaration recommended that intellectual property rights regimes incorporate
"collective ownership and origin;" "coverage of historical as well as contemporary works;
"protection against debasement of culturally significant items;" and "multi-generational
coverage span."154
The use of Maori TCE/EoF, not only by non-Maori New Zealanders but also by non-New
Zealanders, has become increasingly popular (Lai, 2010).
Issues include "the use of Maori symbols or language in trademarks" and the
misappropriation of other TCE/EoF in products and advertising. (Cong, 2010, p. 5) In general,
Maori people believe that they are "unable to exercise control of the trade of their culture in

rangatiratanga, the establishment of a partnership, which imposes on the partners the duty to act reasonable and
in good faith, the freedom of the Crown to govern, the Crown’s duty of active protection, the duty of the Crown
to remedy past breaches, the maintenance of rangatiratanga by Maori over their resources and taonga, Maori to
have the privileges of citizenship, and the duty to consult. Following this decision, in 1989, the Labour
Government released a document entitled “Principles for Crown Action on the Treaty of Waitangi,” which listed
and explained the principles of government, self-management, equality, reasonable cooperation, and redress.
These principles, and those contained in Waitangi Tribunal reports and court decisions, are set out in Dr. Janine
Hayward, Appendix – The Principles of the Treaty of Waitangi, in 2 ALAN WARD, NATIONAL OVERVIEW
493-94 (Waitangi Tribunal Rangahaua Whanui Series, 1997), http://www.waitangi-
tribunal.govt.nz/doclibrary/public/Appendix%2899%29.pdf, access on 5 December 2020
151
The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, First
International Conference on the Cultural & Intellectual Property Rights of Indigenous Peoples (1993),
http://www.wipo.int/export/sites/www/tk/en/folklore/creative_heritage/docs/mataatua.pdf, access on 5
December 2020
152
Ibid, The Mataatua Declaration, p. 2.
153
Ibid, The Mataatua Declaration, p.3.
154
Ibid, The Mataatua Declaration, p. 4

103
any real way under the traditional intellectual property framework," and that they do not reap
the benefits from the exploitation of their TCE/EoF, whether nationally or internationally.155
That certain TCE/EoF may be seen from a non-Maori perspective as having entered the
“public domain” is important in considering protection for these TCE/EoF.156 The concept of
“public domain” is not necessarily recognized by Maori, similar to other indigenous peoples
and local communities for whom the TCE/EoF are integral to “their history and identity as both
individuals and as a group.”157 The misappropriation of Maori culture that does not recognize
the relevance of those TCEs may therefore cause offense.158
Even if positive protection of their TCE/EoF may not be possible under current intellectual
property law, “Maori argue that their ‘guardianship’ of such TCE/EoF should be
acknowledged.”159
A rejected attempt to trademark the lyrics of the “Ka Mate” haka inspired a sui generis
approach in the defensive protection of Maori TCE/EoF.160 The Ka Mate haka is the war-dance
used by the New Zealand national rugby team, the All Blacks, since 1905.161 The Ka Mate
haka has become a symbol, not only of the All Blacks, but of New Zealand and all its people
(Scott, 2013).
Its misappropriation in commercial settings outside New Zealand has caused offense to
Maori people,162 especially the Ngati Toa tribe of the warrior chief who authored the haka in
the early nineteenth century.163
In 2009, the government of New Zealand began negotiating legislation that would
recognize the significance of the haka to the tribe.164

155
Op.cit, Law Library of Cong, p 5
156
Loc.cit.
157
Loc.cit.
158
Loc.cit.
159
Loc.cit.
160
History of the Haka—Explaining New Zealand’s Rugby Ritual, IRISH EXAMINER,
https://www.irishexaminer.com/breakingnews/sport/rugby/history-of-the-haka—explaining-new- zealands-
rugby-ritual-792543.html, access on 5 December 2020.
161
Ibid., History of the Haka
162
Brendan Kennedy, The Misappropriation of “Ka Mate”, Cultural Survival Q. Mag., June 2015 (“It is
irresponsible for the University of Arizona to sanction a performance and production of “Ka Mate” that is
offensive and inaccurate, and which violates the intellectual property rights of Māori when it is performed
without permission.”); Ellen Connolly, Maori Win Battle To Control All Blacks’ Haka Ritual, GUARDIAN
(Feb. 11, 2009), https://www.theguardian.com/world/2009/feb/12/new-zealand-haka-maoris (describing “a 2006
television advertisement by the car maker Fiat in which Italian women performed a slapdash rendition of the
haka, which is traditionally performed only by men.”).
163
Ibid., Brendan Kennedy, p. 200
164
Loc.cit.

104
 The legislation, which became law in 2014,165 did not give the tribe rights to fully control
uses of the haka, but it gave the tribe a right of attribution which applies to any publication of
the haka for commercial purposes, any communication of the haka to the public, and any film
that features the haka and is shown in public or issued to the public.166
While the community may not be able to commercially exploit the TCE, the legislation
helps to prevent outsiders from acquiring intellectual property rights in the haka.167
This is an example of sui generis laws at the national level being used to provide defensive
protection of a community’s TCE/EoF, while also providing pseudo-positive protection
through the right of attribution.168
This approach acknowledges that there is often no current mechanism for protecting certain
TCEs absent new legislation like the one passed by the government of New Zealand. Such
legislation is not easily transferrable across borders, however. In the United States, for
example, such legislation would raise serious First Amendment concerns (McKeown, 2016).

3.2.2. International debates on Protecting Expressions of Folklore

The form of protection of folklore expressions is quite debatable due to their natural
intricacies and difficulties. Protection of folklore expressions under the intellectual property
system can be seen as an accommodative choice. The growing concern over indigenous peoples
‘right to protection of indigenous knowledge has led to an intense debate on the nature of the
international intellectual property regime and its ability to protect indigenous knowledge
(Carpenter, 2004). There has been a search for possible measures to protect TCEs under
different legal fields within international intellectual property law and other international legal
systems. They can be broadly classified as:
- Protection as a Copyright;
- Protection as a Neighbouring/Related right;
- Protection under a sui-generis system.

The first is security by the Copyright process. The Stockholm Diplomatic Conference for
Revision of the Berne Convention and the Paris Act of the Berne Convention in 1971 are the
major conventions and treaties that promote the preservation of TCE/Eof.

165
Haka Ka Mate Attribution Act 2014 (N.Z.).
166
Op.cit, Brendan Kennedy, p. 201
167
Ibid, Brendan Kennedy, p. 201
168
Ibid, Brendan Kennedy, p. 201

105
 In the Stockholm conference the Indian delegates have mooted the need for protecting
folklore expressions under the head of literary and artistic works‖ as given in Article 2(1) of
the Berne Convention. However, lack of precise definition for folklore expressions‖ and
authorship requirements has caused difficulty in their protection. In 1971, the Paris Act of
Berne Convention inserted a new clause Article 15(4), which aims at international protection
of folklore expressions.169
Thus, the TCEs could be protected as an anonymous work provided the competent authority
has to declare the work to be designated as a protectable work in all the countries ((WIPO),
2003).
Since it turned out that the copyright model offered by the Berne Convention is not suitable
for the international protection of folklore, attention turned towards some possible sui generis
options. A series of meetings were held under the aegis of WIPO and UNESCO between 1978
and 1982, and finally in June 1982 a big UNESCO/WIPO Committee of Governmental Expert
meeting of which the author of this paper happened to be the Chairman adopted “Model
Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit
Exploitation and Other Prejudicial Acts.”
The Model Provisions, inter alia, foresaw a sui generis system with a certain authorization
procedure for any utilization made both with gainful intent and outside the traditional or
customary context of folklore. Among the acts against which adequate protection is required,
the Model Law indicated:
(i) use without authorization,
(ii) violation of the obligation to indicate the source of folklore expressions,
(iii) misleading the public by distributing counterfeit objects as folklore creations (a kind of
“passing off”), and the public use of distorted or mutilated folklore creations in a
manner “prejudicial to the cultural interests of the community concerned” (violation of
a kind of collective “moral right”).
In December 1984 a WIPO/UNESCO Group of Experts considered a draft treaty for the
international protection of TCE/EoF based on the provisions of the Model Provisions. This
idea, however, was rejected by industrialized countries which raised two realistic problems;

169
Paris Act of the Berne Convention,
Article 15 (4) (a) - In the case of unfinished works where the author's name is unclear but there is every reason
to believe he is a national of a Union country, it shall be a matter for legislation in that country to appoint the
responsible authority which shall serve the author and be entitled to defend and implement his rights in Union
countries. Countries of the Union who make such a designation under the provisions of this clause must notify
the Director General in writing, including full detail about the authority so named. The Director General shall
directly convey this declaration to all other Union countries.

106
namely the absence of any reliable source of identification of TCE/EoF creations in many
countries; and the thorny question of “regional folklore”, that is, folklore shared by more than
one or sometimes many countries.
The second means of protection of TCE/EoF could be by way of related or neighbouring
right protection. The Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations (World Intellectual Property Organization 1961)
under Article 7(1)(a) deals with protection of Performers’ right to perform and prevention of
unauthorized broadcasting and communication to the public without the prior consent of the
performer or unauthorized broadcasting or communicating the performance not originally
consented by the performer. There is a scope for TCE/EoF as a performer right and the
permission must be taken from the original performer to fix it in a tangible medium to broadcast
and communicate. This prevents misuse and unauthorized usage of folklore works.170
Another breakthrough treaty which directly recognized the protection of TCEs as a related
right is the WIPO Performances and Phonograms Treaty, 1996 (World Intellectual Property
Organization 1996). Article 2(a) of the treaty defines Performer and accordingly they are
actors, singers, musicians, dancers, and other person who act, sing, deliver, declaim, play in,
interpret, or otherwise perform literary or artistic works or expressions of folklore (World
Intellectual Property Organization 1996).
The third means of protecting TCE/EoF could be by enacting a specific legislation to deal
with them. Uniformity is not achieved although could address certain peculiar and distinctive
character of TCE/EoF. Countries have to adopt laws suitable to their social and cultural climate
to extend worthy protection and not a mere formality protection.
Sui generis systems have been developed under few legal systems and attempts have been
made jointly by WIPO and the UNESCO in drafting a model law for protecting folklore
expressions. The Tunisian Model Law on Copyright for developing countries, 1976 is a perfect
example for protecting folklore expressions under a separate legal system (Tunis Model Law
on Copyright 1976).
The model law seeks to protect the TCE/EoF from misuse, wrongful gain and unjust
enrichment outside the community customary and traditional group and also prohibits them to
be misrepresented by non-members as expressions of folklore (Tunis Model Law 1976: s
1(5bis), s 6(2), s 4, s 5(1)).

170
A similar right is being recognized under Article 14(1) of the Trade Related Aspects of Intellectual Property
Rights (TRIPS) Agreement, 1994 (hereinafter TRIPS Agreement) (World Trade Organisation 1994).

107
 The model law also establishes a competent authority to govern the protection of folklore
expressions and their fixation requirements, identified authorship requirements are don with
(Tunis Model Law 1976: s 10(2)).
The model law is not having a binding character at the international level however countries
which wish to protect their traditional and cultural expressions may adopt this model law to be
enacted as a national legislation. One such example is the Nigerian Copyright Act, 1988 which
deals with the protection of folklore expressions as provided under the model law.
WIPO and UNESCO jointly convened an expert group to formulate a draft treaty for the
protection of TCE/EoF by Intellectual property held in Paris in 1984. The expert group frame
worked the Draft Treaty for the Protection of Expressions of Folklore against Illicit
Exploitation and Other Prejudicial Actions.171
The commendable efforts taken at the international regime for the protection of TCE/EoF
were however considered to be unsuccessful because of the great majority of the participants
considered it premature to establish an international treaty since there was insufficient
experience available as regards to the protection of expressions of folklore at the national level
and in particular concerning the implementation of the Model Provisions. (International Bureau
of WIPO 1998).
WIPO-UNESCO World Forum on the Protection of Folklore, 1997 which drafted a plan of
action recommending the need to protect folklore expressions through a sui- generis system.
Following which, the WIPO-UNESCO Regional Consultations on the Protection of
Expressions of Folklore, 1999 recommended for the adoption of folklore issues to be addressed
through the intellectual property system. WIPO Fact Finding Missions during 1998-1999
looked into the needs of traditional knowledge holders including the traditional and cultural
expressions in 28 countries (International Bureau of WIPO 1998).
WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources,
Traditional Knowledge and TCE/EoF, in late 2000 is also working towards developing policies
and recommendations for the protection of TCE/EoF as a separate branch apart from protecting
traditional knowledge and genetic resources.
The preservation of TCE/EoF is also important in light of the proposition of Article 27 of
the 1948 Universal Declaration of Human Rights, which acknowledges the freedom to freely

171
Article I of the Draft Treaty for the Protection of Expressions of Folklore Against Illicit Exploitation and
Other Prejudicial Activities.

108
engage in the community's cultural life as well as the protection of interests arising from
science, literary, or artistic production.
The continuous efforts taken at the international regime to protect the expressions of
TCE/EoF is an on-going debate and there is a need to bring a sui-generis system of protection
of TCEs including folklore expressions.

3.3.Protecting Expressions of Folklore Under Copyright

TCE/EoF was usually addressed in copyright or copyright-plus terms, and copyright
protection would seem to be possible because TCE/EoF take the same form as copyrighted
works. However, some elements of copyright are incompatible with the TCE/EoF, notably the
time constraint and the identity of the author originating the work.
Copyright system is best suited to protect TCE/EoF as compared to the other forms of
intellectual property system such as the trademarks, geographical indications (GI) protection.
The reasons being, trademark and GI system requires compliance to various procedures such
as registration and renewal, by paying prescribed fees. The indigenous communities lack
awareness in these aspects. For the sake of registration and protection under other IP systems,
for instance, extending design protection, they face huge challenge from counterfeit products.
Many TCE/EoF for which protection is desired constitute the subject matter of copyright
protection. Examples include music and songs, dances, plays, stories, ceremonies and rituals,
drawings, paintings, carvings, pottery, mosaic, woodwork, metal ware, jewellery, architecture,
sculptures, handicrafts, poetry, and designs.
The protection provided by copyright is mainly the “right to prevent or authorize, the
reproduction, adaptation, communication to the public and others, and the moral rights of
attribution and integrity.” This seems well suited to meeting many of the needs and objectives
of indigenous people and traditional communities.
The elements and principles of the copyright system are particularly relevant to the
Protection of TCE/EoF because many are literary and artistic productions and therefore already
or potentially the subject matter of copyright protection. This is why many countries already
protect TCE/EoF within copyright law. Rights related to copyright.172 Also, under Article 15(4)
of the Berne Convention, anonymous and unpolished work (like much folklore) can be
protected.173

172
WIPO Publication No. 913(E), Intellectual Property and Traditional Cultural Expressions/Folklore, ISBN 92-
805-1366-4, p. 10.
173
Ibid, p. 16.

109
 Article 7 of the Copyright Act of Tunisia in 1994 provided that the means of protection and
preservation of the folklore from commercial exploitation. And also, TCE/EoF is deemed to
be State owned, not granted for free use and it must bring the cultivation of Ministry of Culture
if there is going to exploit for commercial use of a work of TCE/EoF. Tunisia has actually
applied and implemented the provisions relating to the protection and preservation of folklore.
Originality is one of the key principles of copyright law. This means that there has to be
some “authorial personality” (Suthersanen, 2004, p. 391) to whom the work may be traced in
order for it to be protected. However, the problem lies in the definition of this personality, since
there is no accepted standard as to what constitutes personality.174
Most civil law copyright legislation perceives creativity within an ideology of “high art”
(the French empreinte de la personalite d'auteur), while Anglo-American tradition protects
works of low threshold (Ginsburg, 2004, p. 57), the protection focuses more on “investment
and commercial value of the work'175 than on the “mark of author personality”.
The Anglo-American approach justifies the necessity for a low threshold to protect
cumulative innovation. 176 As the anthropologist Marilyn Strathem stressed: “A long-
established form of Euro-American anticipation comes from expectations that persons should
enjoy the products of their labour, not just now but also as investment in the future'. (Strathem,
1999, p. 162).
There are threats in both systems: the reading of originality in civil law countries while
focusing on the authorial moral imprint might hinder future innovation. 177 Originality cannot
be something new and completely artistic. On the contrary, this could prejudice future
innovation due to the fact that new works are created cumulating cultures, creating new original
works through the inspiration - not through copying - of pre-existing works.178
Therefore, the present patent and copyright systems need to be reformed in ways that
recognise the cumulative nature of most innovations but without hindering further
innovations.179
Thus, the strength of written literature as 'being at the artistic pinnacIe'44 is opposed to the
less exalted orality of many Indigenous peoples' folklore. This concept of creativity,

174
Ibid., Suthersanen.
175
Ibid., Ginsburg, p. 392.
176
Ibid., Ginsburg, p. 380.
177
The choice between overprotecting works and hindering follow on innovation and under protecting them and
thereby discouraging present innovation has been defined as the 'innovation dilemma'. G. Dutfield and U.
Suthersanen 'The Innovation Dilemma: the Intellectual Property and the Historical Legacy of Cumulative
Creativity' (2004) 4 IPQ p.380.
178
Ibid., Suthersanen, p. 390-395
179
Ibid., Suthersanen, p. 381

110
intertwined with the individualistic approach, contrasts with another concept of creativity
encompassed by Indigenous peoples' cultures which is considered to be inferior (Finnegan,
1994, p. 5).
As already mentioned, copyright is characterised by two main requirements: 'originality'
and “fixation”. Even the originality requirement derives from a constitutional formula which
establishes that “a work is not the product of an author unless it is original”.180

• Requirements under the Copyright Laws

1. Originality
In U.S the doctrine of the originality requirement is the “sine qua none of copyright”, the
essence of copyright.181
Moreover, it is the originality requirement which qualifies the work and subsequently
authorises the producer of this work to be named as “author”.182
To be original a work must not be copied, but it must instead be the product of original
thought, skill, or labour of the artist but it does not require absolute novelty.183
Originality requires simply that the work is “independently created” and not copied from
an existing work.184 This is a delicate passage in the copyright theory which defines the borders
between a copy, a mere derivative work and the original work itself.
Article 2.1 of the Berne Convention provides that protected works must be intellectual
creations. It is for this reason; many national laws provide that works must be “original”, it
seems that it does not mean the same as “novelty” as understood in patent law and a work is
considered to be “original” if there is some degree of intellectual effort involved and it has not
been copied from someone else's work (Ricketson, 1987, p. 228).

180
U.S. Constitution Art.1, § 8, c1.8.
181
U.S. Supreme Court in Feist Publications. Inc. v. Rural Teephone. Services, Co., (1991) 499 U.S. 340, IllS.
Ct. 1282, 113 L.Ed.2d 358, 18 U.S.P.Q.2d 1275. See Goldstein Copyright, Patent. Trademark and Related State
Doctrines cases and Materials on the law of Intellectual Property, Foundation Press, (1999) pp.601-2.
182
See M,B. Nimmer links the originality requirement to the concept ofauthorship, defining it as the 'essence of
authorship'. M.B. Nimmer, Nimmer on Copyright: A Treatise on the Law of Literary. Musical and Artistic
Property. and the Protection ofIdeas, ch. 1 (1967). (Hereinafter Nimmer on Copyright).
183
As affirmed in Alfred Bell & Co. v. Catalda Fine Arts, 191 F .2d 99, 102 (2d Cir. 1951). See also P.
Goldstein at Copyright, Patent. Trademark and Related State Doctrines cases and Materials on the law
o/Intellectual Property, Foundation Press, (1999) p.581.
184
immer on Copyright. 1997 at § 1.06. See also D.S.Chisum and M.A. Jacobs, United States. World
InteIlectual Property Guidebook, 1992 p.4-86. For a critical analysis of the concept of originality see M.
Sherwood Edwards 'The Redundancy of Originality' [1995] Entertainment L Rev 94. See also S.S Boyd
'Deriving Originality in Derivative Works: Considering the Quantum of Originality Needed to Attain Copyright
Protection in a Derivative Work' [2000] 40 Santa Clara L Rev 325.

111
 It is for this reason that new productions made by current generations of society and
inspired by or based upon pre-existing indigenous designs have received protection. For
example, in Payunka, Marika and Others v Indofurn Pty Ltd185, the Australian Court had no
difficulty in holding that the artworks before it was original and held that: “Although the
artworks follow traditional Aboriginal form and are based on similar dreaming themes, each
artwork is one of intricate detail and complexity reflecting great skill and originality”186.
Therefore, it may be concluded that, contemporary, tradition-based TCE/EoF are
sufficiently original to be protected as copyright works provided that some new expression,
beyond merely reproducing the traditional form, is added.
The only flip side to this kind of liberal interpretation given by courts is that, the originality
requirement could be met even by an author who is not a member of the relevant cultural
community in which the tradition originated. This may trouble indigenous communities, who
may wish to deny persons not from the relevant cultural community from enjoyment of
copyright in creations derived from that cultural community.
To resolve this valid issue, it is proposed that states establish ways of imposing such
obligations on such an individual before awarding him copyright, such as acknowledging the
society or sharing profits from exploitation of the copyright and respecting some kind of moral
rights in the underlying traditions used.
This will be consistent with one of the intergovernmental committee's key policy priorities,
which is to limit the exercise and enforcement of intellectual property rights gained by
infringing parties over TCE and derivatives thereof.187.
It is emphasized once again that whether or not states intend to have a kind of security for
this public domain content is primarily a policy matter. The Model Provisions of 1982, for
example, make no mention of an originality requirement; accordingly, neither do many of the
national copyright laws that have enforced them.
The Panama Law, just like the Regional Framework for the Protection of Traditional
Knowledge and TCE/EoF established by Pacific Island countries, makes no mention of an
originality requirement.
2. The Fixation Requirement

185
Op.cit., Terry Janke, p. 35.
186
Op.cit., Terry Janke, p. 35.
187
Summary of draft policy objectives and core principles, Annex I, WIPO/GRTKF/IC/7/3, para I (XII).

112
 Copyright rights is applicable for both oral and literary works, according to general
international standards. According to Article 2.1 of the Berne Convention, among the types
protected as copyright are "lectures, addresses, sermons, and other works of the same kind."
While the term “of the same nature” which limit the spectrum of oral works that may be
covered to those similar to lectures, speeches, and sermons, Article 2.2 of the Convention
specifically states that fixation is not a general precondition for protection.
Withstanding this, many national laws need fixation because it proves the reality of the job
and gives a simpler and more definitive ground for rights.
However, as previously noted, this is not a treaty obligation, and states can take advantage
of it by preserving so-called unfixed expressions as well. TCE/EoF are "alive," continually
adapting and reinventing themselves.
Requiring from the previous paperwork or registration runs contrary to the oral, intangible,
and “living” existence of many TCE/EoF. The Intergovernmental Committee's draft policy
contends that inventories and databases of cultural objects can, of course, be useful for
recognizing, safeguarding, and encouraging their usage as part of cultural heritage programs.
Documenting or recording TCE/EoF, on the other hand, should not be seen as a stand-alone
approach to security.188

3. Traditional Cultural Expressions as a Derivative Work

TCE/EoF has been defined as the common heritage of Indigenous peoples, 189 and this
heritage is passed on from generation to generation within the Indigenous community, the art
crafts, the tales, the music’s are often a patrimony which belongs to the community for
centuries and this implies that often many works of folklore are “derived” from the common
culture of the community itself and which the community keeps alive.
Because of the “derived” nature of many works of TCE/EoF, the copyright doctrine has
tried to contain TCE/EoF within the existing category of derivative works, thus depriving it of
an acknowledged content of originality and indeed removing any possibility of protection.190

188
Draft policy objectives and core principles, Annex II, WIPO/GRTKF/IC/7/3, para 35
189
The Study on the Protection of the cultural and inteIlectual property of Indigenous peoples,
E/CN.4/Sub.2/1993/28 (1993) edited by Erica-Irene Daes.
190
Originality is a Westem concept and it does not have much value for the Indigenous communities. See A.R.
Riley 'Recovering Collectivity: Group Rights to InteIlectual Property in Indigenous Communities' [2000] 18
Cardozo Arts & Ent. L.J. p.190 where she affirms: 'The Indigenous model rejects European types of discovery,
invention, naming and originality, concepts which animate modem inteIlectual property law'.

113
 Under the U.S. Copyright Act, a derivative work is defined as a work based upon one or
more pre-existing works191 and the author of the original has the exclusive right to prepare
derivative works.192 A work to be defined as “original” can also be based on a pre-existing
work but it must demonstrate substantial, and not merely trivial, variation, in a way as a
transformative work (Farley C. , '1997, p. 20).
TCE/EoF, then, must meet the originality requirement although at a minimum level, to be
in line with the “sine qua non” of authorship,193 it is easy to understand how this requirement
causes many problems to TCE/EoF. The main problem arises in the fact that it is very difficult
to ascertain if a minimum standard of originality is met in many works of TCE/EoF.
In fact, it is easy to understand how the sacred nature, the symbolism of many works of
TCE/EoF represents a limitation to the process of creation, many works of TCE/EoF have an
ancient and mystic nature and often they have to be recognizably reproduced to be passed on
to future generations.
Therefore, TCE/EoF can be described as the result of a slow process of creation,194 and it
must be as close as possible to the original work. Most of the time, the same “creative input”
is limited by strict rules imposed by the community which the author has to follow strictly.
To understand the reason behind this limitation, it must be understood that the same process
of creation works within the community, mainly for the religious meaning underlying many
works of TCE/EoF (Posey D. , 1994, p. 234) It has, in fact, been stated that “The work has to
stay roughly as it is and individual interpretations and adaptations are not welcomed or sought
after.”195
Furthermore, it cannot be said that all folkloric works are mere derivative works or simply
copies of an original work, for example when an indigenous tale although represented as
faithfully as possible does not use the TCE/EoF of the past, due to the evolution of language
and expression. In the case of a folkloric song, the change in the use of language or language
structure, constitute a sort of “creative input”, which makes the “reproduction” different from
a previous tale, even if the music and the meaning are still the same (Voegtli, 1997).

191
17 U.S.C. § 101 (1994). See 587-8 (US Law)
192
17 U.S.C. § 106 (2) (1994).
193
U.S. Supreme Court in Feist Publications, Inc. v. Rural Teephone. Services. Co., (1991) 499 U.S. 340, IllS.
Ct. 1282, 113 L.Ed.2d 358, 18 U.S.P.Q.2d 1275. See P. Goldstein Copyright, Patent, Trademark and Related
State Doctrines cases and Materials on the law of intellectual Property, Foundation Press (1999) pp.601-2.
194
Op.cit, C.H. Farley, p. 23.
195
“Derivation” and not “deviation” from pre-existing works is allowed. Because of indigenous art's function as
a historical and sacred text, innovation is restricted, C.H. Farley, Protecting Folklore of indigenous Peoples: Is
Intellectual Property the Answer? (1997) 30 Conn. L. Rev. p.21.

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 Therefore, a distinction must be drawn between simple derivative works or mere copies of
the original and transformative works that add to the original work a “relative input.”196

4. The Identifiable Author Requirement

Copyright requires the identification of a known individual creator or creators and the
creators of traditional cultural expressions are often unknown.
The European Community in their response to the WIPO questionnaire on expressions of
folklore voiced this limitation in the following words: “copyright is based on the identification
of the person originating the work, whereas folklore is distinguished by the anonymity of the
originator of the tradition or by the fact that the tradition is the attribute of a whole
community”.197
Unfortunately, the provisions of the Berne Convention provide no relief in overcoming this
requirement as Article 7.3 of the Berne Convention provides that “The countries of the Union
shall not be required to protect anonymous or pseudonymous works in respect of which it is
reasonable to presume that their author has been dead for fifty years”. Needless to say, most
cultural expressions would therefore be left unprotected.
However, innovative & purposive national laws may still be legislated to protect symbols
of our heritage as whether or not States wish to provide for general groups to be able to acquire
copyright is a matter of its policy and choice. Doing so in a general IP law may be possible and
the following legal provisions are an illustration of local laws that have deviated from this
requirement to protect their ethnic creativities.
(a) The Tunis Model Law on Copyright, states that the rights granted by it in folklores shall
be exercised by a Government appointed authority;
(b) The Panama Law provides for the protection of the “collective rights of the indigenous
communities,” and applications for registration of these rights shall be made by “the
respective general congresses or indigenous traditional authorities”;

196
M.A. Einhorn Media, Technology, and Copyright: Integrating Law and Economics (Edward Elgar Publishers
2004) at Chapter 2 where he analyses the distinction between derivative and transformative as follows:
derivative works that recast copyrighted material to a new medium “that creators of original works would in
general develop or license others to develop in traditional, reasonable, or likely to be developed markets” and
transformative works that “add something new, with a further purpose or different character, altering the first
with new expression, meaning, or message.”
197
Document WIPO/GRTKF/IC/3/11, 3

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 (c) The South Pacific Model Law vests “traditional cultural rights” in “traditional owners”,
who may be a group or an individual in whom the custody of the expressions of culture
are entrusted in accordance with the customary law and practices of that group198;
(d) The guiding principles adopted by the intergovernmental committee also provides that
measures for the protection of TCE/EoF should be for the benefit of the indigenous
peoples in whom the custody and protection of the TCE/EoF are entrusted in
accordance with the customary law and practices of that community.

Therefore, it can be said that rights may be vested in a community or group as a whole in
absence of an identifiable author.
The intergovernmental committee has also recognized this and resolved that to ensure the
effectiveness of protection of TCE/EoF, a responsible authority, which may be an existing
office or agency, should be tasked with awareness-raising, education, advice and guidance,
monitoring, dispute resolution and other functions.

5. Ownership Requirement
The conception of “absolute ownership” in copyright law is incompatible with certain
customary laws and systems. While copyright confers exclusive, private property rights in
individuals, at times indigenous authors are subject to complex rules, regulations and
responsibilities, more akin to usage or management rights, which are communal in nature.
The complex of rights regulating the production of indigenous cultural materials has been
beautifully described in the already discussed Australian case, Payunka, Marika and Others v
Indofurn Pty Ltd as follows:
“As an artist, while I may own the copyright in a particular artwork under western law,
under Aboriginal law I must not use an image or story in such a way as to undermine the rights
of all the other Yolngu (her clan) who have an interest whether direct or indirect in it. In this
way I hold the image in trust for all the other Yolngu with an interest in the story.”

198
Another example would be that of the 1982 Model Provisions, which recognize the possibility of collective,
or community rights. Being a sui generis system and not a copyright system, they do not refer to ‘authors’ of
expressions of folklore. They do not even refer directly to the ‘owners’ of expressions of folklore. Rather, they
state that authorizations for using expressions of folklore should be obtained either from an entity (a ‘competent
authority’) established by the State (this option creates a fiction that the State is the ‘author’ and/or the ‘owner’
of the rights in the expressions) or from the ‘community concerned’ (Section 10). In short, the Model Provisions
do not require there to be an identifiable ‘author’ or ‘authors’

116
 This divergence between “ownership” in the copyright sense and communal “usage” rights
and responsibilities, has practical meaning in licensing cases, for example, an indigenous
copyright owner would be entitled under copyright law to license or assign his or her rights to
a third party, but under customary rules and regulations this may not be permissible.
It is submitted that customary rules should not be treated differently from the rules of other
non-IP laws with which IP rules may appear to conflict. For example, morality laws may
prohibit the publication of pornographic photographs, yet copyright law grants the author rights
over the reproduction and publication of the photographs.
However, there is no conflict copyright law does not grant a right holder the positive
entitlement to exercise rights; rather, it enables the right holder to prevent others from
exercising the rights or to authorize them to do so. Whether or not a right holder is entitled to
exercise his or rights may depend upon other laws, as Article 17 of the Berne Convention
makes clear:
“The provisions of this Convention cannot in any way affect the right of the Government
of each country of the Union to permit, to control, or to prohibit, by legislation or regulation,
the circulation, presentation, or exhibition of any work or production in regard to which the
competent authority may find it necessary to exercise that right.”

Therefore, it could be argued by analogy that, there is no “conflict” between copyright and
customary laws, because, in the event that customary laws were to be recognized for this
purpose by a country's laws, copyright does not entitle or oblige a traditional artist to act
contrary to his or her customary responsibilities.

6. Limited Duration of Protection

Copyright protection is granted only for a limited term, as the system is based on the notion
that works should ultimately enter the public domain. However, many indigenous people and
traditional communities desire indefinite protection for expressions of their traditional cultures,
and want their expressions to be protected in perpetuity.
The international IP laws regime possess no barrier to implementing the concept of
indefinite protection. The Berne Convention itself does not provide for any maximum period
of protection though it stipulates 50 years as a minimum period for protection, therefore,
countries are free to provide copyright for longer periods.

117
 It is to be noted that this is not a new concept in IP law199, the Model Provisions, 1982
themselves do not provide for any time limit nor do the laws of Panama or the model law of
the Pacific Island countries. Moreover, the intergovernmental committee has also resolved that
protection of any traditional cultural expression should endure for as long as it continues to be
maintained and used by, and is characteristic of, the cultural identity and traditional heritage of
the relevant indigenous people.200
Thus, with some inputs of creativity and liberal construction of existing laws traditional
cultural expressions may meet all the requirements to the grant of copyright protection.
There are however, some limits as to what can be protected by copyright. Article 9.2 of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)
makes clear: “Copyright protection shall extend to expressions and not to ideas, procedures,
methods of operation or mathematical concepts as such.”
Therefore, a copyright permits the imitation of the non-original elements or underlying
ideas and concepts of works, which is a widespread practice as creativity is nourished and
inspired by other works. Therefore, even if copyright were to vest in a new tradition-based
cultural expression, copyright protection would not per se prevent the traditional ‘style’ of the
protected work from being appropriated.
Copyright protection does not extend to “style” or method of manufacture, yet the method
of manufacture and “style” of traditional products is vulnerable to imitation.201 In so far as
“style” and method of manufacture go, copyright protection does not extend to utilitarian
aspects, concepts, formulaic or other non-original elements, colours, subject matter and
techniques used to create a work.

7. The “Creative Input” in the Reproduction: Folklore as a Transformative Work

As asserted above, TCE/EoF works cannot be defined as merely derivative in nature or
copies of the. original work. Although often derived from pre-existing works, the “creative
input” in the reproduction can make them as valuable as original works. But this does not make
the protection of folklore easier under copyright law.
In fact, at first this “creative input” is not always easily identifiable because there must be
an individualistic “input” under the statutory requirement. Moreover, it is difficult to determine

199
Trademark and geographical protection can continue indefinitely (subject to certain conditions). The early
House of Lords decision of Millar v Taylor (4 Burr. (4th ed.) 2303, 98 Eng. Rep 201 (K.B. 1769)) provided for
perpetual copyright, but this principle was superseded by later judgements.
200
Summary of draft policy objectives and core principles, Annex I, WIPO/GRTKF/IC/7/3, Para B 7
201
Annex II, WIPO/GRTKF/IC/1/5, 7-8

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if a work is still “original” although based on pre-existing work, since only the original
variation from the pre-existing work is protected and not the work as a whole.202
Therefore, even if a folkloric work manages to meet the originality requirement in the
variation, it loses the originality requirement of the pre-existing work.203
Indeed, the originality requirement as disciplined by the statutory provision is found to be
an incomplete means of protection for works of folklore, mainly because the criteria of
originality are too uncertain and the result of an individualistic approach.204
Moreover, the protection is left to the “creative input” given by a single author, the statutory
provision forgets that folklore belongs to the community and not to the single Indigenous artist.
Also, the category of transformative work, in which a creative input is observable in the
variation, cannot make up for the deficiencies of the scheme.
If only the new added variation is protected, all the remaining pre-existing folkloric work
risks being categorized as public domain.205
In conclusion one is bound to agree with the observation that in order to protect folklore,
copyright should be extended “beyond the borders of originality”206 in order to become a more
flexible instrument, in this way, protection could be extended to the pre-existing work for the
benefit of the whole work of folklore.

8. Protection for the “Fixer”

It should be emphasized that the fixer may be someone extraneous to the work and to the
community from which the work originated. For example, a performer who assisted a live

202
Op.cit, C.H. Farley, p. 21.
203
Ibid, C.H. Farley, p. 22.
204
M.T. Sundara Rajan and her criticisms regarding the concept of originality in 'Moral Rights and Human
Rights: A new international model' presented at the SERCI conference 2003. Paper available at
http://www.serci.org. The author questions what would the strict application of Western criteria of originality
mean in a culture where reusing or adapting pre-existing works may be an important part of the creative process.
205
Ibid, M.T. Sundara Rajan, p. 22. As it will be examined further on in this chapter the works in public domain
are free to be copied without incurring in any infringement of copyright law and this with the effect that the pre-
existing, underlying work from which the original work can derive can be 'reproduced either exactly or in
modified form' C.H.Farley 'Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?'
(1997) 30 Conn. L. Rev. p.23. Moreover, the 'original' work which derives from a work in public domain can
obtain copyright protection, while the underlying work is left without protection. But what is even worse is that
even if the underlying work is copyrighted, the new work which derives from it if shows that is substantially
different can be granted also copyright protection.
206
Op.cit, C.H. Farley, p. 23.

119
performance of an Aboriginal group and decide to record their performance without asking any
authorization from the community could claim copyright (Riley, 2000, p. 175).207
For example, the U.S. Copyright Act will grant copyright protection to the fixer only for
its contribution to the fixation for example the fact that he/her recorded the music and will not
grant to the fixer the copyright for the music itself.
The permission of the real author for the use of its copyright work in the previous case the
community for its music will therefore still be necessary and this might seem to soften the
negative impact of the provision.208
However, the real author of the work should have already fixed his/her work,209 otherwise
the work can be a copy without asking any authorization,210 this is the reason why many works
of folklore cannot find protection under this particular scheme.
Going back to the example proposed above, any music band assisting at a live performance
of an Indigenous group can record their music without requiring authorization and without
incurring an infringement of the copyright law if the music performed by the Indigenous group
is not copyrighted.211
There are authors who maintain that 'the lack of fixation may actually provide more
protection to folkloric works' 212 because the fixation marks the beginning of the term of
protection of the work and in the absence of fixation the rights cannot expire.
However, it is difficult to see how in the first place the Indigenous communities could
benefit from the lack of fixation if their works were to be misappropriated by the so called
“fixer” the music recorder or the film maker simply because the folkloric works are not usually
fixed. No-fixation leads to the fact that there is no established time limit. Nevertheless, the lack
of time limit could be beneficial only if a form of protection already exists for the folkloric
work to prevent such misappropriation as in the case of illegal recording of Indigenous songs,
therefore, fixation remains the real obstacle to the protection of folklore which is mainly made
of oral traditions.213

207
she illustrates what happened to an Ami aboriginal song 'Song of Joy', recorded without authorisation during
a life performance of an aboriginal author. The band Enigma made out of it a world-wide success titled 'Return
to Innocence'.
208
17 U.S.C. § 102 (a) (1994).
209
17 U.S.C. § 101 (a)(1994).
210
Op.cit., Riley, pp. 195
211
Ibid, Riley, pp. 196
212
Op.cit, C.H. Farley, p. 29
213
A.R. Riley states: the requirement, by definition, excludes all oral literature of Indigenous peoples from the
paradigm of Western law, p. 195

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 3.3.1. Copyright and Public Domain
Before setting out the connection between folklore and the 'public domain', 214 it is
important first to explore the origins and necessity of the public domain. This term was
introduced by the French tradition, domaine public. Boyle points out the paradox that this
wording was put in by the natural law theory, droit d'aufeu (Boyle, 2003, p. 61).
However, although this seems to represent a contradiction, the public domain was actually
responding to the necessity of a collective benefit. This was an ideal mechanism born in a
democratic environment where rights were recognized for the benefit of the whole community.
That structural public domain is also what is traditionally considered to be the public domain
stricto sensu in copyright and patent laws.
The collective rights of access and use that define it are premised on the absence of an
exclusive right thereto. On the face of it, it is the reverse analysis of what is protected by IP, it
is what is left over once the existence of an IP right is established.
A resource can be said to participate to the function or objective of the public domain
because the use thereof is free in some circumstances, the openness is not then linked to the
resource itself but is circumstantial which is functional public domain, functional public
domain serves the same purpose as the structural public domain to the extent that the access
thereto and use thereof is available and open to anyone or for some people.
Rights of access and use are caused by the limitations of the exclusive rights vested in such
resources, it has gained a similar status than the public domain stricto sensu in the recent
copyright literature.
The functional public domain is opposed to the exercise of copyright or patent power, not
to its existence: it is what remains out of the scope of the exercise of such rights. In economic
terms, both types of public domains have the same result, meaning that no transaction could
take place based on a legally-conferred exclusivity.
The absence of a positive legal meaning or regime is vital in every study of the public
domain; the copyright laws' fundamental understanding of the public domain is one of the first
challenges to its protection and maintenance.

214
RJ.Coombe, “Fear, Optimism, and Nostalgia for the Future of Authorship and a Revitalized Public Domain
in Global Intellectual Property Regimes,” 52 DePaul L. Rev. 1171 (2003), see also J. Litman, 'The Public
Domain,' quoted in Bragdon, Susan, 'Rights and Responsibility for Plant Genetic Resources: Recognizing the
Role of the Public Domain and Private Rights in the Development of Public Products,' draft paper presented at
the First Meeting of the Advisory Committee or IPGRI project on the Public Domain, Portland, Oregon,
November 14-15, 2002.

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 Copyright law requires that the public domain be defined as what is not covered, but all
efforts to determine the importance of the public domain should go further to reflect on what
might positively describe the public domain, such as the unrestricted usage of the elements
found therein and the lack of any exclusivity of such elements.
Copyright becomes a system designed to feed the public domain, created for the future
promotion of free access. 215 Alternative views are expressed by those who recognize the
importance of both copyright and the public domain as both having a public function copyright
and the public domain were born together (Rose, 2003, p. 75).
This is the correct approach, although the subject of public domain is quite complex and
may require a case by case analysis according to the type of works to be accessed. What is
really needed is a regulation for access to the works in the public domain.
The public domain has often been given a negative meaning: information whose use is
freely accessible and permissible to anyone (Litman, 1990). The public domain has been
defined as a sort of 'public property', a concept introduced by Roman law with the intent of
meaning res nullius, res communes, res publicae, res universitatis and res divini iuris.216
It is also acknowledged that the social dimension of public domain is undoubtedly real.
Circulation of works raises options for new creativity and, ultimately, further works, however,
this public utility should not necessarily be seen under the umbrella of “property”, even though
it is for public use.
If this is the case, how can access to works in the public domain be regulated? Is any limit
imposed on the exercise of this right to access? Boyle answers that if property is a complex
right that includes notions such as human rights and individual liberty and there are many
“properties”, then so are there many “public domains”.217
Therefore, to provide a uniform and absolute definition of the public domain. It all depends
on the way access to works in the public domain is regulated, a regulation is proven to be
necessary by the fact that many folkloric works already in the public domain are manipulated.
Hence, public domain can also respond to a proprietary logic if access to free works is
regulated, not for the benefit of the society but for the benefit of private companies who are in
charge of regulating access to them. The selection of works and how they should ultimately
fall into the public domain is not enough. If this theory is translated to TCEs, the necessity for

215
Loc.cit, J. Boyle, p. 61.
216
Op.cit, J. Boyle, p. 7.
217
Ibid, J. Boyle, p. 68-69

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regulating access to these works becomes more urgent. Answers should then be provided as to
whom requires access and their reasons for it.
An ideal model should consider what information Indigenous peoples are allowed to share
and under which conditions (Long, 2006, p. 326).
The main problem arises in works of folklore already in the public domain and all those
Indigenous peoples' works that cannot be covered by copyright protection.218 During one of
the WIPO (World Intellectual property Organization) IGC Sessions on Traditional Knowledge
and TCE/EoF, the necessity of clarifying the ambit and the role both of the public domain and
folklore was addressed. However, the group of experts failed to find any solution. The approach
adopted was to combine the two matters (TCE/EoF and the public domain) and to allow
folklore to benefit from the certainty of public domain intellectual property rules.219
The problem arises particularly when works of Indigenous peoples are already in the public
domain, mostly as a result of expropriation of Indigenous people’s cultures. A possible solution
could be that TCE/EoF already in the public domain be recovered from the public domain, but
further questions remain unanswered.
It would, of course, be difficult to set criteria that establish protection for works already in
the public domain, but it might be possible to regulate access to those works by imposing
certain access fees and collecting shared revenues.
This is particularly required when the user has access to TCE/EoF in the public domain for
economic purposes. These fees could then contribute to the benefit of the community to whom
the TCE/EoF originally belonged. However, it still questionable whether a preventive measure
could avoid works of TCE/EoF falling into the public domain.
Many holders of TCE/EoF and Indigenous communities find the existence of their works
in the public domain a threat because it allows the expropriation of a culture that has been
handed down by generations that have preserved and protected it. In fact, the existence of
Indigenous works in the public domain is threatened centrally for two main reasons.
First, there are works of TCE/EoF to which copyright protection was once granted but after
the passage of several years are no longer eligible for copyright protection according to the
copyright laws. Second, all other works of TCE/EoF that are judged to be lacking in originality

218
The term 'public domain' is used here in the sense in which the term is employed incopyright contexts and
refers to elements of IP that are ineligible for private ownership and the contents of which are available for use
by any member of the public. This conventional notion of the public domain contains: (i) IP for which the term
ofprotection has run out; (ii) IP that has been forfeited or unclaimed'. See WIPO documents
WIPO/GRTKFIIC/S/3, paras. 22-33 and 39 WIPO/GRTKFIIC/6/3 p.27.
219
Annex to WIPO/GRTKFIIC/6/3 at point 18.

123
and fixation are not covered by copyright protection at all. 220 In both cases, works are
vulnerable to misappropriation for commercial ends.
The WIPO IGC still seems to question whether or not works of folklore in the public
domain should receive retrospective protection and whether copyright and other intellectual
property instruments could be used to protect works of folklore.221 There are some policy-
makers who maintain that retaining the existence of works in the public domain ensures the
greatest opportunities for creation and development.222
However. even on this point the WIPO document WIPO/GRTKF/IC/S/3 lacks sufficient
analysis. It is true that the public domain represents a source for revitalizing cultures and
knowledge. It is also clear that the public domain prevents the disappearance of many works
of Aboriginal art and traditions.
Even though the Indigenous communities are often not recognized as having generated
those works. According to this same document, the choice between the rights of the public the
underlying object of creation and innovation of the market is prevailing against the “private
property rights” of the Indigenous community.
- The Public domain and TCE/EoF
The public domain has always been repository of traditional knowledge and TCE/EoF in
the classical views of intellectual property, traditional knowledge and TCE/EoF except where
TCE/EoF is subject to customary laws granting other forms of ownership and rights have some
difficulty enjoying intellectual property rights, since it is generally not new or original but
rather ancient material and based on a body of existing collecting rather than individual
traditions.
Not easily protected by copyright, TCE/EoF usually belongs to the public domain, which
facilitates its exploitation and appropriation223.

220
Ibid, at point 19-20.
221
Ibid., at point 21 where the Annex reports some ideal systems to be followed: moral rights, the preventive
authorisation asked by the users to the holders of the right (Le. the community) or a system of sui generis rights.
None of these systems is explained in detail.
222
Ibid, at point 15.
223
T. COTTIER & M. PANIZZON, “Legal perspectives on traditional knowledge : The case for intellectual
property protection”, in in K. MASKUS & J. REICHMAN (eds.), International public goods and the transfer of
technology under a globalized intellectual property regime, Cambridge University Press, 2005, p. 570; R.
COOMBE, “Protecting cultural industries to promote cultural diversity: Dilemmas for international policymaking
posed by the recognition of traditional knowledge”, in K. MASKUS & J. REICHMAN (eds.), International public
goods…, op. cit., p. 602-604; A. CHANDER & M. SUNDER, op. cit.; CARLOS M. CORREA, Traditional knowledge
and intellectual property – Issues and options surrounding the protection of traditional knowledge, 2001; G.
DUTFIELD & U. SUTHERSANEN, Global Intellectual Property Law, Edward Elgar, 2008, p. 335.

124
 Developing countries have for many years been reluctant to acknowledge a vision of the
public domain that would leave unprotected their TCE/EoF. A definition of the public domain,
particularly if framed by development considerations, should take the specific status of
traditional knowledge into account, as well as the current work undertaken at WIPO level to
grant some rights in TCE/EoF.
The global regime of intellectual property should not continue to deny exclusivity or other
types of legal entitlements to the many forms of intellectual production, knowledge or
TCE/EoF.
The consequence for the public domain is that it should be careful not to overlook the
common property regimes of other cultures224.
It should be mentioned that many developing countries include in their copyright regime a
specific protection of TCE/EoF that generally aligns, where it exists, with the protection of
public domain works.

• The Public Domain Lacks a Uniform Definition

Despite the significant overlap, TCE/EoF proponents remain largely inhospitable to the
idea that the IP regime is an acceptable response to the entitlement claims of Indigenous groups.
A significant part of this resistance is related to the justifiable concern that, as deployed
within the IP system, the public domain construct will deny TCE/EoF holders the ability to
maintain the distinctiveness of their productive processes, to keep vibrant their cultural
institutions and to otherwise flourish within their systems of knowledge governance.
In jurisdictions where, TCE/EoF is already protected by national law, unlawful access and
use is sanctionable.225
Such enforcement can, and probably should, include an option to deny enforcement of any
IP rights subsequently obtained for creative goods that unlawfully incorporate the traditional
knowledge (Fisher, Two Thoughts About Traditional Knowledge, 2007, p. 131).

224
In that direction, see the Bellagio Declaration on the public domain, adopted by many scholars in 1993: “in
general, we favor recognition and protection of the public domain. We call on the international community
through expansive application of concepts of fair use, compulsory licensing, and narrower initial coverage of
property rights in the first place. But since existing author-focused regimes are blind to the interests of
nonauthorial producers as well as to the importance of the commons, the main exception to this expansion of the
public domain should be in favor of those of have been excluded by the authorial biases of current law.” (cited
by R. COOMBE, “Fear, Hope, and Longing for the Future of Authorship”, op. cit., p. 1184).
225
See Carol M Rose, “Expanding the Choices for the Global Commons: Comparing Newfangled Tradable
Allowance Schemes to Old-Fashioned Common Property Regimes” (1999) 10:1 Duke Envtl L & Pol’y F 45, 51
“Expanding the Choices“.

125
 Such an outcome would not be proscribed under prevailing international law,226 and could
prove to be a highly effective deterrent to unauthorized access and use of traditional knowledge.
For Indigenous groups, direct engagement with the idea of the public domain by the
international community is both necessary and inevitable.
The allocation of property rights, including rights in IP or rights in traditional knowledge,
are a classic exercise of sovereign prerogative. Accordingly, what constitutes the public domain
also flows from such sovereign recognition.
Negotiations about the public domain should begin from recognition of two fundamental
points:
1. The Public Domain is Territorial
Both the Paris and Berne Conventions reflect the axiomatic principle that IP rights are
territorial. Extraterritorial application of the public domain is most certainly subject to
the same rules as extraterritorial application of IP (and other) laws; namely, subject to
a limited set of exceptions, one state’s laws will not be applied to conduct occurring in
another state (Henkin, 1979).
Moreover, at least in some cases, a state may exercise jurisdiction over conduct that
takes place in its territory or conduct that has direct and significant effects in its territory
(Bradley, 1997).
Against this backdrop of governing rules, the public domain rhetoric merely reinforces
a legal basis for defending national rights in traditional knowledge, namely,
territoriality. As legal recognition of traditional knowledge increases worldwide, the
principle of comity among nations may persuade a country to recognize when the laws
of another sovereign have been violated. 227 The Nagoya Protocol, for example,
mandates transnational cooperation to address violations of access and benefit-sharing
legislation in a country that is party to the agreement.228
2. Multiple Public Domains Already Exist
There is no single public domain, even within a particular country. Rather, every type
of IP has a differently constituted public domain. In copyright law, for example, the

226
Copyright law in the United States contains an analogous principle: successful plaintiffs cannot claim
defendants’ profits that are attributable to expressions the plaintiffs do not own. See Frank Music Corp v Metro-
Goldwyn-Mayer Inc, 886 F (2d) 1545 at 1549 (9th Cir 1989).
227
As defined by the United States Supreme Court, “comity of nations”
is “the recognition which one nation allows within its territory to the legislative, executive or judicial acts of
another nation, having due regard both to international duty and convenience, and to the rights of its own
citizens, or of other persons who are under the protection of its laws.” See Hilton v Guyot, 159 US 113 (1895).
228
Nagoya Protocol, supra note 4, art 15

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 public domain includes unprotectable subject matter (such as ideas or facts) and works
whose copyrights have expired.229 In some countries, copyright’s public domain may
also include works of the federal government. 230 The public domain in patent law
similarly comprises ineligible subject matter, expired patents, invalidated patents and,
in some jurisdictions, prematurely expired patents for which maintenance fees were not
paid.231
Of all the IP categories, trademark law arguably has the narrowest public domain.
There, the public domain consists mainly of subject matter that has lost its source-
identifying function. While all other forms of IP have statutorily imposed term limits,
trademarks in most countries do not. As long as the mark continues to serve as an
indication of source, it remains entitled to all the exclusive rights associated with this
form of property.

3.4.The need for Sui-Generis Law

The term “sui generis” means “of its own kind” (Oxford English Dictionary), thus laws are
sui generis to the extent that they treat a particular entity, activity or relationship as subject to
a narrowly crafted legal regime.
Sometimes a law, initially sui generis, will come to be seen as falling within an as yet
undiscovered broader category, for example, copyright law originally consisted of narrowly
tailored legislation such as An Act for Encouraging the Art of Making New Models and Casts
of Busts, and other Things therein Mentioned, 38 Geo. III c. 71 (1798) (UK). At the time the
Act was passed, there was no broadly applicable category of copyright and thus sculpture was
protected through a sui generis statute. Later, the more broadly crafted copyright legislation
subsumed the sui generis protection that had been offered to particular modes of creative
expression.
It has been shown that approaches within the regular IPR-system, such as copyright, do not
meet the requirements postulated by traditional owners (Lewinski S. , 2007). In response, the

229
17 USC § 102(b).
230
See e.g. 17 USC § 105 (2012) (“Copyright protection under this title
is not available for any work of the United States Government”); but
see Ruth L Okediji, “Government as Owner of Intellectual Property? Considerations for Public Welfare in the
Era of Big Data” (2016) 18 Vand J Ent Tech L 331 (“The public domain status of federal government works is a
deliberate policy choice justified in reference to the public interest although...there are important exceptions to
the rule” at 335).
231
See e.g. 35 USC § 41(b) (providing for the expiration of a patent in the event that maintenance fees are
unpaid).

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international community has developed model laws for the protection of TCE/EoF in the last
decades, which may be used as a basis for the development of national legislation.
These are referred to as “sui generis”, which signifies a status of its own kind. While they
count as intellectual property, they systematically depart from classic copyright. This paper
evaluates the regulatory alternatives in the sui generis model laws and the system of private
ordering and develops policy guidelines for their implementation.
Some believe that TCE/EoF are adequately protected by existing IP systems, and that no
additional measures or systems of protection are necessary or appropriate. Others believe that
the establishment of new, specific measures and/or statutory systems is necessary either to
complement existing IP rights or act as a substitute for them because they are regarded as
inadequate or inappropriate. The latter are referred to in this Chapter as “sui generis” measures
and systems.
The possibility of specific sui generis protection for TCE/EoF was subject to early
consideration at the Berne Convention for the Protection of Literary and Artistic Works. The
Convention provided for the protection of unpublished works, and possibly encompassed
unfixed expressions of TCE/EoF. Such protection was revised in the Tunis Model Law on
Copyright for Developing Countries in 1976 to specifically recognize that indigenous people
deserve to reap the benefits from commercialization of TCE/EoF and preserve their cultural
legacy.
The Tunis Model Law provided some specific protection for TCE/EoF in that it did not
require such works to be fixed in material form, and gave perpetual protection to TCE/EoF that
was already in the public domain.
Further attempts at sui generis protection were made in 1982 with the introduction of the
Model Provisions adopted by WIPO. However, for various reasons, the Model Provisions have
not had an extensive impact on the legislation of Member States to date.
Since 1971, various national and international government investigations and reports have
been produced in an attempt to identify the relevant issues and consolidate the real needs of
indigenous groups regarding protection of TCE/EoF.232 Creative interpretation by the judiciary
has also been vital to the progress of recognition and protection of TCE/EoF at a national

232
In Australia, studies produced over the last two decades include the Commonwealth Department of Home
Affairs and Environment's Report of the Working Group on the Preservation of Aboriginal Folklore (1981); the
Australian Copyright Council's Defending Indigenous Intellectual Property: A Copyright Perspective (1997);
the Aboriginal and Torres Strait Islander Commission's Our Cu1ture: Our Future (1997); and the Aboriginal and
Torres Strait Islander Commission's Our Cu1ture: Our Future (1997).

128
level 233 In addition, various countries have either adopted their own forms of TCE/EoF
protection 234 or implemented the Tunis Model Laws or part thereof into their respective
copyright laws in an attempt to create sui generis protection.
Recent developments in the international forum saw the Third and Fourth Sessions of the
WIPO IGC, occurring in June 2002 and December 2002 respectably.235
During the Third Session invitations were issued to member countries to submit
presentations of their national experiences regarding problems encountered in the protection of
indigenous intellectual property and TCE/EoF.
Sui generis rights must be classified as group rights for traditional communities aiming to
protect their TCE by extending the conventional forms of intellectual property rights. The
alternative model laws are:
(1) Model Provisions of the UNESCO/WIPO which were created in 1982;
(2) Bangui Agreement of OAPI (as amended in 1999) Annex VII, Title I (copyright and
related rights);
(3) The South Pacific Model Law for National Laws of 2002;
(4) Panama Law No. 20 (June 26, 2000) and Executive Decree No. 12 (March 20, 2001);
(5) The Tunis Model Law on Copyright for Developing Countries of 1972, (4) the WIPO
Draft Provisions of 2004 and;
(6) The ARIPO Provisions of 2010.

The question of a sui generis protection system was tackled by the WIPO 2002 document
discussing the elements of a sui generis system for the protection of traditional knowledge. The
document notes that several countries had requested for an examination of sui generis models
for the protection of traditional knowledge and TCE/EoF. These countries regarded the
development of such models as both important and necessary, due to the inadequacy of
conventional Intellectual Property Rights to cover the diversity of TCE/EoF.

233
See, Foster v Mounford (1976) 29 FLR 233; Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; Yumbulul v
Reserve Bank of Australia (1991) 21 IPR 481; Mabo v State of Queensland (NO 2) (1992) 175 CLR 1;
Milpurrurru v Indolfurn Pty Ltd (1995) 30 IPR 209.
234
To date the Philippines, Panama, Croatia and Viet Nam each boast their own sui generis protection for
indigenous ECTK. See World Intellectual Property Organisation, above no. 3, para 121. See also World
Intellectual Property Organisation, 'Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore. Comparative Summary of Sui Generis Legislation for the
Protection of Traditional Cultural Expressions' (Fifth Session, Geneva, 28 April 2003).
235
The Fifth Session of the World Intellectual Property Organisation's Intergovernmental Committee on
Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, was held in Geneva from 7
July to 15 July 2003.

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 The document acknowledges the difficulties of creating an effective international system
without reference to operational national systems, while at the same time it concedes that a sui
generis system might hinder the development of a traditional knowledge protection with an
international treaty.236
The document therefore only recommends that several elements might be considered in the
developments of a sui generis system.
A sui generis intellectual property system is, according to WIPO: 237 “a modification of
some of IP system features so as to properly accommodate the special characteristics of its
subject matter, and the specific policy needs which led to the establishment of a distinct
system”.
The system might be able to cover the separate elements of traditional knowledge
previously uncovered by conventional IP system, including the parts that are unique to a certain
country.
WIPO therefore recommends several questions to identify the elements of a sui generis
system. Several model provisions for the sui generis protection for traditional knowledge have
been provided, such as the Model Provisions 1982, the Tunis Model Law 1976, the Panama
Law 2000, the South Pacific Model Law 2002, the Bangui Agreement of OAPI (amended in
1999), and the U.S.A. Indian Arts and Craft Act of 1990. All of which have to some extent
reflect the elements of protection identified by the questions.
In the case of Indonesia, the characteristics of Indonesian TCE render it problematic for a
copyright system coverage, the protection of Indonesian TCE might be better provided by a sui
generis IPR-system. Subsequently, development of an Indonesian sui generis system will also
have to consider the following questions:
1. What is the policy objective?
According to the WIPO text, the way a sui generis framework is shaped and defined is
strongly affected by the policy purposes it is meant to support. The characteristics of
Indonesian TCE/EoF can necessitate misappropriation security, a means to promote
TCE/EoF ingenuity, growth, and innovation, and a promise of secure and equal
economic cooperation with other parties.
2. What is the subject matter?

236
WIPO, Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore, 2002, p. 3, http://www.wipo.int/meetings/en/details.jsp?meeting_id=4720, acces on 9
December 2020
237
Ibid, pp. 13-14.

130
 The Indonesian TCE/EoF that should be protected will include both tangible and
intangible forms of Indonesia’s cultural heritage, such as science and technology,
various artistic expressions, biodiversity, buildings and monuments, and perhaps
prominent individuals in the development of science or art.
3. What criteria should be met?
The criteria for protection may refer to the existing guidelines for the registration and
formation of intangible cultural heritage in Indonesia and Law No. 11 of 2010 on
Cultural Property. The TCE/EoF qualified for protection might be the “traditional”
expressions of a given community which represent the community’s cultural identity
and have been transferred from generation to generation; and all man-made or natural
structures or geographical spaces in a given region. An element based on the Law No.
20 of Panama might also be added, in which the criteria includes a susceptibility to
commercial exploitation.
4. Who owns the rights?
In the Copyright Law, the government or the State is the holder of the rights to
TCE/EoF. The sui generis system should grant the holding of the rights to the
communities themselves, taking into account the communities’ customary laws, as well
as the communal and often anonymous characteristics of TCE/EoF, in order to give the
communities more control of and responsibilities on their own cultural identity.
5. What are the rights?
The rights to be acquired must be relevant to the legitimate interests of the TCE/EoF
holders, in this case the communities from which the TCE/EoF have sprung. These
might include the right to exploit economically, to develop, to promote, to sustain, to
produce innovations from the TCE/EoF, and to protect said TCE/EoF from illicit
exploitations by unauthorized parties. Nevertheless, the rights granted must not limit
the rights of the whole Indonesian society, and the world society, to appreciate and use
the TCE/EoF, provided that there are no violations/misappropriations involved.
Exceptions might be given to educational and other non-profitable purposes.
The rights might be acquired through registration and recording in a national database.
The application for registration must be in the name of the relevant community and
recognized by the community itself.
6. How to administer and enforce the rights?
The administration and enforcement of the rights might be conducted through a law on
the protection of National Cultural Heritage which covers both tangible and intangible

131
 cultural properties. Punishment for offences might be based on existing laws and the
model laws provided by WIPO.
7. What if the rights attached to the objects evanish or how do they expire?
Both Tunis Model Law of 1976 and Model Provisions of 1982 declare that the rights
held by indigenous communities are unlimited in time. Nevertheless, Indonesian sui
generis system might include the provision that the rights might expire if the relevant
community no longer exists.

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 CHAPTER 4

CURRENT SITUATION ON LEGAL PROTECTION OF EXPRESSION OF

FOLKLORE UNDER INDONESIAN COPYRIGHT LAW

4.1.Indonesia’s Regulations on Protection of Expressions of Folklore

Indonesia regulates the protection of TCE/EoF by copyright law. This measure was taken
since the Indonesian Copyright Law 2002 and amended by Copyright Law 2014. Meanwhile,
an international forum in World Intellectual Property Organization is still having discussions
on the protection of Intellectual Property and Genetic Resources, Traditional Knowledge, and
Folklore/Traditional Cultural Expressions (GRTKF), Indonesia decided to construct a
unilateral act to regulate TCE/EoF as an urgent issue to protect Indonesian culture.
Recently, an effort to create a sui generis TCE/EoF law has been made by the Indonesian
government and legislative. Since the lack of consensus on discussions in creating a sui generis
system for years, the Indonesian government prefers to amend Copyright law 2002 into
Copyright Law 2014 for some crucial point regarding the protection of TCE/EoF.
Legal protection of TCE/EoF in Indonesia begins to be seen implicitly in Law No. 6 Year
1982 about copyright stated in article 10 as stated below:
(1) The state holds the copyright of historical, pre-historical, paleoanthropological heritage
works and other national cultural heritage
a. The products of people’s cultural that become communal property, such as story,
saga, folktale, legend and chronicle, song, handicraft, choreography, dance,
calligraphy and other art works are maintained and protected by the state;
b. The state holds the copyright of that creation in section (2) over foreign parties
c. The copyright of a creation, for the sake of national interest, with the knowledge of
the holder, can become the state’s ownership through Presidential Decree based on
the consideration of copyright council;
d. To the holders of copyrights, as stated in section (3), are given award stated by the
President;
e. Further provision about copyright held by the state, as meant in this article, is further
regulated with Government Regulation.238

238
Indonesia, Law No. 6 Year 1982 concerning Copyright

133
 Furthermore, the provision was revised by Law No. 7 Year 1987 by omitting the
provisions of article 10 section (3) and section (4) and a change was made for section (1) by
omitting the paleoanthropological elements, the reason for the omission of
paleoanthropological element is because paleoanthropological is not a human creation, thus it
is reasonable to omit it from the scope of copyright objects. paleo anthropology in its sense is
the relic in the form of fossils that are the result of natural process of a living creature died a
thousand years ago or even millions of years ago as the creation of God.239
Before Law no. 28 of 2014 concerning Copyright is promulgated in Indonesia,
Indonesia refers to Law no. 19 of 2002 concerning Copyright which regulates the issue of
traditional cultural expressions as stated in Article 10 of Law No. 19 of 2002 concerning
Copyright, which reads:
a. The State shall hold the Copyright for works from prehistoric remains, historical and
other national cultural objects;
b. The State shall hold the Copyright for folklores and works of popular culture that are
commonly owned, such as stories, legends, folk tales, epics, songs, handicrafts,
choreography, dances, calligraphies and other artistic works;
c. To publish or reproduce the works as referred to in paragraph (2), any person who is
not the citizen of Indonesia shall, firstly, seek permission from the institution related to
the matter;
d. Further provisions regarding Copyright that are held by the State, as referred to in this
Article, shall be regulated by Government Regulation.

In the elucidation of Article 10 paragraph (2) of the Copyright Law of 2002, the definition
of folklore is as follows:
Folklore is a collection of traditional works, whether made by groups or individuals in
society, which shows their social and cultural identity based on the standards and values that
are spelled, or passed from generation to generation, including:
- Folklore, folk poetry;
- Folk songs and traditional instrument music;
- Folk dances, traditional games;
- results among others in the form of art: paintings, drawings, engravings, sculptures,
mosaics, jewelry, crafts, clothing, musical instruments and traditional weaving.

239
Explanation of Law No. 7 year 1982 about the amendment of Law No. 6 Year 1982

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 However, with the issuance of Law no. 28 of 2014, the provisions in Law no. 19 of 2002
is no longer valid.
Article 38 (1) Copyright Law 2014 provides the State holds TCEs Copyright on traditional
cultural expressions, it is clearly stated that in Article 38 that:
(1) Copyright on traditional cultural expressions are held by the State;
(2) The State shall inventory, maintain, and preserve traditional cultural expressions as
referred to in paragraph (1);
(3) The use of traditional cultural expressions as referred to in paragraph (1) must consider
the values that live in the community;
(4) Further provisions on the rights held by the State on traditional cultural expressions as
referred to in paragraph (1) is regulated by the Government.

Article 38 (4) stated that The Government regulates further provisions on the rights held
by the State on traditional cultural expressions as referred to in paragraph (1). Directorate
General of Intellectual Property is a leading sector to generate the implementing legislation on
the rights held by the State on TCEs. This plan is still in progress considering the robustness
to coordinate between several ministries among others ministry of law and human rights,
ministry of education, and culture, coordinating ministry for human development and culture.
The elucidation of Article 38 paragraph (1) has also been given a limitation regarding what
is meant by "traditional cultural expressions", namely everything that includes one or a
combination of the following forms of expression:
a. Textual verbal, both oral and written, in the form of prose or poetry, in various themes
and contents of the message, which can be in the form of literary works or informative
narrative;
b. Music, including, inter alia, vocal, instrumental, or a combination thereof;
c. Movement, including among others, dance;
d. Theater, including among others, puppet shows and folk plays;
e. Fine arts, whether in two-dimensional or three-dimensional forms made of various
materials such as leather, wood, bamboo, metal, stone, ceramics, paper, textiles, etc. or
a combination thereof; and
f. Traditional ceremonies.

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 Works classified as Traditional Cultural Expressions can be seen from Article 60 paragraph
(1) of Law Number 28 of 2014 which contains: Copyright for Traditional Cultural Expressions
held by the state as referred to in Article 38 paragraph (1) shall be valid indefinitely. This article
is clearly aimed at protecting traditional works.
Protection of folklore in Indonesia in Article 38 to Article 42 of the Copyright Law Number
28 of 2014 is to prevent monopolistic practices or commercialization as well as actions to
damage or commercial use without the permission of the Republic of Indonesia as the
Copyright Holder.
This is to prevent actions of foreign parties that can destroy the value of Indonesia's
traditional culture. In the previous UUHC, it was also regulated to protect Indonesian
traditional culture from commercial use by foreign parties without the permission of the
government as the copyright holder.
In Article 38 to Article 42, the protection of folklore is prohibiting foreign parties or non-
Indonesian citizens from announcing or reproducing folklore creations. and Indonesian cultural
products without permission from the Indonesian side, namely from the relevant agencies.
In the Draft bill on Protection and Utilization of Traditional Knowledge Intellectual
Property and Traditional Cultural Expressions (RUU PTEBT) formulating Traditional
Knowledge explains general definitions.
Traditional Knowledge is intellectual work in the field of knowledge and technology that
contains elements of the characteristics of the traditional heritage produced, developed and
maintained by a particular community or society. TCE/EoF are intellectual works in the field
of art, including literary expressions that contain elements of traditional heritage characteristics
that are produced, developed and maintained by a particular community or society.
Furthermore, it can be explained that traditional knowledge and TCE/EoF have different
characteristics from intellectual property. others that have received protection such as
copyright, trademark, patent, industrial design, integrated circuit layout design, trade secrets,
and protection of plant varieties. Providing protection for traditional knowledge is important
when it comes to its characteristics and uniqueness.
It stipulates that TCE/EoF is part of the culture, the regulation also governs under the Law
for the Advancement of Culture 2017. The objective of this law is to develop, utilizing,
promoting, and preserving Indonesian culture (Sardjono A. , 20017).
Copyright Law 2014 and the Law for the Advancement of Culture 2017 laws were based
on Article 32 of the Indonesian constitution. The Spirit of constitution initiator was to

136
strengthen Indonesian national identity in a diverse culture in which it consists of 300 tribes.
The sense of moral rights is stronger than the concept of having economic rights.
Until now, Indonesia has three regulations dealing with TCE: Law Number 28 of 2014 on
Copyright law (Undang-Undang Hak Cipta/UUHC), Law Number 10 of 2011 on Tangible
Cultural Heritage (Undang-Undang Cagar Budaya/UUCB), and Law Number 5 of 2017 on
Culture Advancement (Undang-Undang Pemajuan Kebudayaan/UUPK). The three laws deal
with the products of human’s mind in science, art, and literature.
UUCB protects tangible cultural heritage such as temples, monuments, landscapes, etc.
This kind of properties is also regulated in UUCB on articles regulating TCE. These different
regulations for one object cause overlapping in regulation, which in turn causes a legal
indeterminacy: which law covers tangible traditional cultural expression? Indonesia’s UUHC
protects TCE (article 38) whose copyright is held by the State.
The same object of TCE is also regulated in UUCB. Article I of the UUCB defines a
cultural property as of "important value for history, science, and culture", being either a man-
made object or group of objects, movable (bergerak) or immovable (tidak bergerak), aged at
least fifty years which has or have high historical value, or natural objects with high historical
value. Said objects, under Articles IV and V, generally belong to and are under the domain of
the national government. However, Article VI allows private ownership under certain
conditions. The act then goes on to regulate the search for and finding of historical objects, as
well as their keeping and maintenance.
In line with the various efforts to protect expressions of folklore in Indonesian, the
intentions and efforts to preserve the expressions of folklore, the Indonesian government has
also agreed on a charter called the 2003 Indonesian Heritage Preservation Charter, which was
declared in December 2003 in Ciloto, West Java.
The definition of preservation adopted in the Heritage Preservation Charter is an effort to
manage the heritage through research, planning, protection, maintenance, utilization and
supervision. Conservation includes selective development to maintain the continuity and
harmony of expressions of folklore.

4.2. Economic Exploitation of the Expressions of Folklore

Indonesia, consisting of numerous islands inhabited by various tribes and ethnicities, is
home to a great number of distinct cultures. Many of these cultures have been around for
centuries, producing various cultural works and expressions that have endured just as long.

137
These TCE/EoF are the riches and heritage of Indonesia that the government has understood
should be protected from acts that are harmful to the expressions themselves or to the
communities that produce them.
Protection of Indonesian TK and TCE/EoF has gained more momentum due to recent and
frequent clashes between Indonesia and Malaysia, there was also a dispute with a Japanese
company that attempted to Intellectually Protect Indonesian TK as their Intellectual Property.
Disputes have also arisen over monopolistic tendencies of certain individuals and
companies that have formally registered Indonesian folkloric themes. In Bali, for example, a
traditional flower pattern is copyrighted by a US Company so that the Balinese themselves
cannot sell their handicraft using that style; whereas it is uncommon for the Balinese to register
products or crafts regarded as communal items, such as traditional craft styles, as a trademark
or copyright (Lodra, 2017, p. 40).
Most Indonesians deemed the misappropriation and unauthorized use of Indonesian TK
and TCE/EoF as a grave offense, especially in dispute cases with Malaysia. These sentiments
have prompted Indonesian government to formally protect Indonesian TK and TCE/EoF
(Kusumadara, 2011, p. 21).
Indonesia, however, presents a challenge to IP discourse since many of its TCE/EoF
holders-local musicians, dramatists, weavers, and other artists-often refuse to claim IP rights
for their expressions. These artists view their expressions as belonging to their communities
and not to individual creators, and so they are reluctant to claim as the owners of those
expressions.
At the same time, these artists also recognize the particular innovative contributions of
members of their groups and, consequently, their authoritative mark on the produced
expressions. Their interests are therefore often at odds with the interests voiced by international
and state law-makers for whom “local” is synonymous with “national”.240
Despite the high commercial value of sales, indigenous peoples often derive little or no
benefit from the market consumption of their traditions, knowledge and artworks. A 1998 study
by the Australian government indicated that the Australian Aboriginal arts and craft industry
had an estimated retail sales figure of AUD $18.5 million in 1988, with indigenous artists
receiving less than one half of the retail value of their work.241 This figure grew to an estimate

240
Ibid., Kusumadara.
241
Shelley Wright, p. 61, 'Aboriginal Cultural Heritage in Australia' (1995) University of British Columbia Law
Review (Special Issue). In particular, Wright notes at 58 by way of example that the imagery used by the
Northern Territory Government Tourist Bureau in their tourism advertising incorporates pictures of the land and
wildlife associated with the indigenous groups of the area. One particularly famous landmark is Uluru. Although

138
of a least AUD$100 million in 2000 (Nicholls, 2000, p. 188) and to USD $130 million in 2002
(Department of Communications, 2002, p. 116). However, by comparison, at the same time in
2002, traditional owners received only $30 million of this turnover.242
Damage caused by cultural misappropriation can be so devastating that traditional owners
often lose all interest in reclaiming TCE/EoF. For example, the Navajo Native Americans
currently believe that part of their expressions of folklore has now become linked to evil due
to misappropriation by a car manufacturer (Guggenheim, 1999, p. 292) and consequently have
no desire to claim the return of misappropriated of the expressions of folklore.243

4.2.1. Case Study of Indonesia Traditional Dance “Reog Ponorogo”

Reog Ponorogo is a dance performance, which demonstrates physical strength and
extravagant lion-peafowl mask and costumes. While Reog dance itself originally comes from
Java island in Indonesia, this dance also spread in Malaysia, especially in Johor region. The
reason is because there are numerous descendants of Javanese immigrants; whose brought
Javanese culture along with their migration to Malaysia (Wardany, 2009). In their new
homeland, with the collective memory on works, they continue to practice the arts, and even
consider it as their occupation.
The controversy started to sparked after Malaysia tried to claim the dance in 2007, under
the name of Barongan Dance when it featured in a Malaysian tourism commercial as a part of
the 2007 Malaysia Truly Asia campaign.
Tari Barongan, in certain elements mark it as an unmistakable descendant of Reog, most
notably the use of the dhadak merak mask which most Malaysian groups import from Ponorogo
craftsmen. The use of Reog in this commercial without acknowledgement of its origins was
enough to cause an uproar in Ponorogo. But the Malaysians made things even worse by
emblazoning the word “Malaysia” on the mask in the place usually reserved for the words
“Reog Ponorogo”.

Uluru was formally returned to the indigenous people as a sacred site in 1985, it continues to be administered by
the Australian Federal government as a lucrative tourist attraction. While areas around Uluru designated as
sacred men's or women's places have been signed and fenced off, tourists do not refrain from taking
photographs of such areas and attempt to enter them. The indigenous owners have complained repeatedly about
these infringements of cultural property, but there is no enforcement of the ban.
242
Ibid., Department of Communications, Information Technology and the Arts (Australia), p. 135.
243
University of London Press Ltd v University Tutorial Press Ltd [I9121 2 Ch 601,
http://notesforfree.com/2018/01/15/copyright-case-brief-university-london-press-limited-v-university-tutorial-
press-limited/, access on 9 December 2020.

139
 In the eyes of the people of Ponorogo this was blasphemy. Despite attempts by the
Malaysian ambassador to explain that his country had never claimed that Reog was originally
from Malaysia, the Ponorogoans saw it differently. Former Reog artist, mystic and warok saw
the incident as a way to subtly claim Reog as their own.

• Implementation of Legal Protection against Traditional Dance in Indonesia

Indonesia entered as a member of the WTO (World Trade Organization) in 1994 by
ratifying the results of the Uruguay Round Agreement Establishing the World Organization
(Agreement Establishing World Trade Organization).
One of the most important parts of WTO approval is the Agreement on Trade-Related
Aspects of Intellectual Property Rights Including Trade-In Counterfeit Goods (TRIPs). In line
with TRIPs, the Indonesian government has also ratified the International Conventions in IPR,
namely:
1. Paris Convention for the protection of the Industrial Property and Convention
Establishing the World Intellectual Property Organization, with Presidential Decree
No. 15 of 1997 concerning the amendment of Presidential Decree no. 24 of 1979;
2. Patent Cooperation Treaty (PCT) and Regulation under the PTC, with Presidential
Decree NO. 16 of 1997;
3. Trademark Law Treaty (TML) with Presidential Decree. 17 of 1997;
4. Bern Convention for the Protection of Literary and Artistic Works with Presidential
Decree No. 18 of 1997;
5. WIPO copyrights treaty (WCT) with Presidential Decree no. 19 of 1997;

Following the UNESCO Convention 2003, the Presidential Regulation concerning the
ratification or convention for the safeguarding of the intangible cultural heritage of 2003 was
enacted in Jakarta on July 5, 2007, By the Minister of Justice and Human Rights of the Republic
of Indonesia at that time that is Andi Mattalatta. Through Presidential Regulation No. 78 of
2007, this Presidential Regulation shall come into force on the date of the stipulation.244
Indonesia’s intangible cultural heritage has been regulated in the Minister of Education and
Culture of the Republic of Indonesia Number 106 Year 2013 About Indonesia’s Unspecified
Cultural Heritage, Enacted in Jakarta on December 16, 2013. In Article 1 (2) which reads:245

244
President Regulation No. 78/2007.
245
http://jdih.kemdikbud.go.id/asbodoku/media/peruu/permen_tahun2013_nomor106.pdf, Accessed on 9
December 2020.

140
 “Indonesia’s cultural heritage is the result of practice, manifestation, expression of
knowledge and skills, related to the cultural sphere, passed from generation to generation
continuously through conservation and is the result of the culture in the form of intangible
culture”.
Traditional dance is included in the category of cultural heritage no object Indonesia is
contained in Article 3, which consists of:
1. Traditions and oral expressions;
2. Performing arts;
3. People’s customs, traditional ceremony, and celebrations;
4. Knowledge and behavioural habits regarding nature and the universe; and Skills and
finesse of traditional crafts.

The determination of the object’s cultural heritage has been held on October 17, 2014, at
the National Museum of Jakarta. This determination is a manifestation of the commitment of
Indonesia which has ratified Convention on Protection of the Intangible Cultural Heritage
(Convention for the Safeguarding of the Intangible Cultural Heritage) in 2003.246
Currently, the Ministry of Culture and Tourism of Republic of Indonesia has made various
efforts to protect the utilization of cultural heritage, among others:
1. Requests to local governments to carry out inventories in accordance with Traditional
Knowledge and Traditional Cultural Expressions since 2003 are based on Circular
Letter of the Minister of Culture and Tourism Number: SE.01/HK.501/MPK/200;
2. Intellectual Property Inventory of Traditional Knowledge (PT) and Traditional Cultural
Expression (EBT) such as architecture, weaving in some parts of Indonesia;
3. Preparation of the document “Overview of Intellectual Property Protection Efforts on
Traditional Knowledge and Traditional Cultural Expressions”;
4. Preparation and issuance of Minister of Culture and Regulation concerning Guidelines
and Criteria of Cultural Heritage Protection of Intangible. The Ministry of Culture and
Tourism has also signed a partnership with the Ministry of Law and Human Rights to
protect, develop and utilize the intellectual property of traditional cultural heritage
expressions of the nation.

246
http://travel.kompas.com/read/2014/10/24/175400427/memelihara.warisan.budaya.tak.bend/, Accessed on 9
December 2020

141
 The government, in this case, has reminded the governors, regents and mayors throughout
Indonesia to actively conduct an inventory of local cultural works, including traditional dance.
Once inventoried, then the work of regional culture is registered to the Department of Law and
Human Rights to get intellectual property rights (IPR). Then the follow-up to the international
realm of registration to UNESCO.247

4.3.The Role of the Government in Providing Legal Protection of Expressions of

Folklore
4.3.1. The Role of Indonesia’s Government to Protect the Expressions of Folklore
Under copyright law 2014, expressions of folklore are protected and held by the state.
Unfortunately, the absence of government regulations specifically regulating the expressions
of folklore causes unclear legal protection for example how the protection mechanisms
provided by the State as a copyright holder for the expressions of folklore.
This gives the impression that the Indonesian government has not fully provided legal
protection for expressions of folklore, while on the other hand there have been many foreign
parties who have registered the copyright of Indonesia’s expressions of folklore in their
country.
In addition, the State as the holder of copyright over TCE/Eof does not mean that the states
have a right of ownership or control the products of TCE/Eof. The State in this case only has
authority to formulates policies, regulate, manage, promote and safeguard the use of
TCE/EoF.248 State’s authority in this case, if associated with welfare of the country is to bring
as much as well-being and prosperity for the people. The obligations of the state are elaborated
below:
1) Any forms of used and utilization of the products of TCE/Eof as well as the product of
national culture that is obtained must significantly be able to boost the well-being and
prosperity of the people;
2) Protecting and guaranteeing all people’s rights dealing with traditional cultural
expressions and various properties of national culture gained directly or enjoyed
directly by the people;
3) Preventing and handling any forms of actions from any parties that will cause the people

247
Ibid
248
This explanation is an analogy of the verdict of Constitutional Supreme Court in legal consideration of Water
Resource Act interpreted about “the Right to control the state” does not mean the state process, but it means that
the state is only formulated policies (belief), regulate (regelendaad), manage (bestuursdaad), administrate
(beheersdaad), and supervise (toezichthoundendaad). See verdict of Constitutional Supreme Court No. 058-
059-060-063/PUU-II/2004 and No. 008/PUU-III/2005 about the trial of Water Resource Act.

142
 to lose their chance or rights to enjoy the products of TCE/EoF and the properties of
their country.

Some theories of State’s authority below will explain how far the State has authority over
TCE/EoF (Hartono, 1991, p. 24):
1) According to Van Vollenhoven, state as the highest organization of the nation is given
authority to regulate everything, and the State based on its position has the authority
over TCE/EoF for legal regulation. In this case, the State authority is always connected
to sovereignty or souverenitet.
2) According to J.J Rousseau, State’s authority as a body or organizations sources from
the result of social contract whose essence is a form of unity defending and protecting
communal authority, personal authority, and ownership of each individual (Algra,
1983, p. 210).249 In this case, in its essence, authority is not sovereignty, but State’s
authority is also limitless because there are some legal provisions that bind themselves
like nature’s law and god’s law and also law that is common in all nations called leges
imperii.

The efforts that have been made by the government in protecting the national TCE/EoF,
especially the existing traditional dance, traditional crafts/arts, are only currently in the
inventory stage. This inventory is obtained based on data from the Regional Government or
competent institutions in this regard.
Meanwhile, the government's efforts in the legal protection of TCE/EoF and indigenous
people’s cultural products are protected through regional regulations, that have not been
followed up.
Protection of TCE/EoF will be related to the role of the state in realizing the ideals of
Indonesian law where the state shall protect all the people of Indonesia and their entire native
land, realization of social justice for all of the people of Indonesia, sovereignty is in the hands
of the people and is implemented according to the Constitution, just and humanity, the unity
of Indonesia, democracy guided by the inner wisdom of deliberations amongst representatives,
which is based on the belief in the One and Only God.250

249
Intellectual property right is exclusive and absolute, meaning that the right can be defended over anyone and
the holder of the right can sue the violation of his right by anyone. The holder of intellectual property right also
has the right to monopoly, that is the right that can be used to ban anybody without his permission making
his/her creation and or use it.
250
Indonesia, Preamble of the 1945 Constitution of the Republic of Indonesia.

143
 The government's efforts include diplomacy in every international agreement relating to
the protection of TCE/EoF and intellectual property right, formulating policies and prevention
actions for every effort to protect expressions of folklore from cases of "theft/misappropriation"
of the cultural wealth of the Indonesian nation.
When associated with the concept of the state's responsibility to protect its people, this has
been explicitly regulated in the 1945 Constitution of the Republic of Indonesia which has
provided protection for the welfare of the people. However, the statutory system being built is
not always consistent, coherent and corresponds to that in the 1945 Constitution of the Republic
of Indonesia. After seeing what is written in the 1945 Constitution of the Republic of Indonesia
it is the government's responsibility to protect its people and all the wealth of its traditional
culture because it is to protect the people's welfare.
That is why the government issued a policy to protect TCE/EoF which was formed in a
statutory regulation on intellectual property rights which regulates the TCE/EoF separately.
Even the government is also in the middle of drafting a separate bill on the protection on
TCE/EoF which is intended to provide clarity about the nature of TCE/EoF and its protection
efforts, so that it does not only to protect the economic potential, but also its social aspects.
Because it turns out that the protection provided by the existing copyright law is not
sufficient to regulate protection of TCE/EoF which only regulates who is the copyright holder
for traditional cultural expressions, what is meant by TCE/EoF which are:
a. Verbal textual, both oral and written, in the form of prose and poetry, in various themes
and content of messages, which can be in the form of literary works or informative
narratives;
b. Music, including but not limited to, vocal, instrumental, or a combination thereof;
c. Motion, including among other things, dance;
d. Theatre, including among others, wayang performances and folk plays;
e. Fine arts, both in two-dimensional and three-dimensional forms made from various
materials such as leather, wood, bamboo, metal, stone, ceramics, paper, textiles, and
others or their combinations; and
f. Traditional ceremonies.

And one of the government's action in protecting TCE/EoF is by documenting the

TCE/EoF, documenting the TCE/EoF is very important to preserve the TCE/EoF itself for
future generations (Miranda Risang Ayu, 2014, p. 129).

144
 The process of recording and documenting the TCE/EoF in Indonesia has been in
pursuance of Article 37 of Law No.11 of 2010 about Cultural Heritage. It aims to respect
cultural nationalism to produce better integration; it also helps to explain the origin of national
histories and TCE/EoF in Indonesia, especially the teaching about some cultural and art values
that were successfully preserved.
Henry Merryman also states that the protection of expressions of folklore shall be focused
on preserving the original form of expressions of folklore because this form may still have
distinctive quality as the irreplaceable source (Merryman, 1986, pp. 831-853). This focus may
be useful in understanding the concept of TCE/EoF as national cultural heritage because the
cultural heritage represents the manifestation of nationalism and cultural property of a nation
where peoples and government play a great role to preserve values in the TCE/EoF.
The role of government is very important in this inventory, which of course does not leave
the role of local communities as informants of TCE/EoF. Concretely, the government should
have played an active role in organizing this inventory activity.
Inventory is one of the defensive protection steps. Defensive protection is intended as an
effort to prevent unlawful use of a society's TCE/EoF. The steps taken by various countries and
communities in utilizing this defensive protection are by building a database related to their
country's culture. Thus, this database can be used as a comparative document (prior art) when
there is a claim to the intended traditional knowledge. Thus, the existence of an inventory of
the country's culture provides several advantages including:
1. Inventory can at least be used as evidence that a TCE/EoF is belongs to the Indonesian
nation, if it exists in Indonesia. So, when there are foreign parties who claim ownership
of the TCE/EoF, the Indonesian side can refute it by using the inventory;
2. Inventory can be used as a comparative document (prior art) in granting rights to any
intellectual property. Because, nowadays there are many misappropriation of TCE/EoF
or cultural theft by foreigners which is then they registered it as an object of IPR in their
country. Indonesian government will find it difficult to deny ownership of this
TCE/EoF if this happen, because there is no inventory of TCE/EoF in Indonesia;
3. Inventory of TCE/EoF can be used as a first step in further protection. For example, it
is used as a basis for benefit sharing with foreign parties who want to use the TCE/EoF.

Currently, the Ministry of Culture and Tourism of Republic of Indonesia has made various
efforts to protect the use of cultural heritage, including (Nasef, 2010):
- A request to local governments to do inventory of Traditional Knowledge and TCE/EoF

145
 since 2003 based on the Circular of the Minister of Culture and Tourism Number:
SE.01/HK.501/MPK/200;
- Inventory of intellectual property of Traditional Knowledge and TCE/EoF such as
weaving, pottery or traditional dances in several parts of Indonesia;
- Preparation of the document "Overview of Intellectual Property Protection Efforts on
Traditional Knowledge and TCE/EoF";
- Preparation and publication of the Minister of Culture and Tourism Regulation on
Guidelines regarding Protection of Intangible Cultural Heritage.

The Ministry of Culture and Tourism has also signed a cooperation agreement with the
Ministry of Law and Human Rights to protect, develop and utilize the intellectual property of
the TCE/EoF of the Indonesian nations.
The central government has also in this case reminded the governors, regents and mayors
throughout Indonesia to actively carry out an inventory of regional cultural works. After being
inventoried, the regional cultural works are then registered in the Ministry of Law and Human
Rights to obtain intellectual property rights.
In the 1945 Constitution of the Republic of Indonesia as the state constitution has mandated
the promotion of culture in Article 32 paragraph (1) stated that:
“The state shall advance the national culture of Indonesia among the civilisations of the
world by assuring the freedom of society to preserve and to develop cultural values.”
Departing from this mandate, Law No. 5 of 2017 concerning Cultural Advancement was
enacted which was entered into force on May 24, 2017 and promulgated on May 29, 2017.
There are several important points that the Indonesian people need to know regarding the
promulgation of Law No. 5 of 2017, one of which is the Integrated Cultural Data Collection
System as one of the protection systems.
The Integrated Cultural Data Collection System according to Article 1 Number 12 of Law
No. 5 of 2017 on Cultural Advancement is the main data system that integrates all Cultural
data from various sources.
Its contents are related to objects of cultural progress, cultural human resources, cultural
institutions, facilities and infrastructure as well as other data related to Traditional Knowledge
and TCE/EoF. This data can be accessed by everyone while considering the national
sovereignty, security and resilience (Hidayat, 2017).
Local administrations across the country have submitted their cultural assessments ahead
of the Indonesian Cultural Congress (KKI) that is set to be held by the Education and Culture

146
Ministry on December 5-9 in Jakarta, as the events are expected to produce a culture-related
strategy for the nation.
Hilmar Farid as the director general of Education and Culture Ministry stated that there are
296 regencies and 28 provinces in Indonesia including Bali, West Nusa Tenggara, and
Yogyakarta that had submitted assessments of cultural development, which include, among
others things, identifying their cultural strengths, local facilities and infrastructure, with well
over half of the country's 34 provinces participating, the data is representative of the national
condition for policy-making that would affect the entire nation.
When viewed from the idea of efforts to documented the TCE/EoF in the Integrated
Cultural Data Collection System (Sistem Pendataan Kebudayaan Terpadu (SPKT)), this
system is similar to the concept of the National Digital Library in various countries. With
digital libraries, the TCE/EoF is not only protected, but also globally accessible because with
the digital revolution, data and information that can now be transmitted around the world
(Education, 2007, p. 138), and is also a recommendation from the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and
Folklore (IGC-GRTKF).251
The TCE/EoF protection is also closely related to the utilization of a culture, whether its
use is for communal interests or cultural commercialization. This utilization can be done by
the central government, local governments, and the community. Not only Indonesian
citizens252, large industries and foreign parties can also use the utilization of the TCE/EoF.
Article 15 of Law No. 5 of 2017 states that large industries and foreign parties that utilize
the objects of cultural advancement must obtain a permit to utilize the objects of cultural
advancement. Permits of the utilization can be submitted if the object of cultural advancement
is included in the Integrated Cultural Data Collection System (Jogja, 2017).
In addition, to obtain a license there are conditions that must be fulfilled, which is the
approval on the basis of preliminary information, benefits sharing, and inclusion of the origin
of the object of cultural advancement.

251
WIPO IGC-GRTKF has proposed several factors for WIPO members to consider when developing defense
security. Any of these elements are: (1) the data structure that would be stored in the database as a source of
searching for prior art searches; (2) the prior art format and reference form are in accordance with national laws
and regulations; (3) access to the WIPO official website; (4) the impact that the national database has on culture
under the existing IPR regime; and (5) the process used to es (As cited by the Intergovernmental Commission
on Intellectual Property and Genetic Resources) as quoted by Elvira Devinamira Wirayanti, Legal Protection of
National Cultural Heritage Not Registered in World Cultural Heritage, Thesis, Faculty of Law, Airlangga
University, 2017, p. 52.
252
Indonesia, Law No.5 of 2017 concerning Cultural Advancement, Article 32.

147
 Inventory based on Article 16 of the Law on Cultural Advancement consists of the stages
253
of recording and documenting, determining, and updating data. Registration and
documenting the expressions of folklore is a new idea initiated by this Law.
The Integrated Cultural Data Collection System according to Article 15 Law No. 5 of 2017,
the Integrated Cultural Data Collection System contains data regarding:254
- Object of Cultural Advancement;
- Cultural Human Resources, and Cultural institutions;
- Cultural facilities and infrastructure; and
- Other data related to Cultural advancement.

The data collected in the Integrated Cultural Data Collection System above is used as the
main data reference in Cultural Advancement.255 The effort of registering and documenting
TCE/EoF into the database is a defensive protection which aims to prevent the use of the
TCE/EoF by foreign parties. The term defensive protection is the opposite of positive
protection, where positive protection emphasizes an active action to obtain the rights, so
defensive protection emphasizes more on preventing efforts so that foreigners cannot claim the
IPR protection against the TCE/EoF.
With the mechanism of defensive protection, registering and documentation carried out by
the Indonesian government itself can provide proof of ownership of the TCE/EoF of
Indonesian nation’s. In addition, this system can facilitate international recognition due to the
nature of the Integrated Cultural Data Collection System which can be accessed globally,
especially if it is arranged in a multilingual manner.
As already stated in Article 15 of Law No. 5 of 2017, the Integrated Cultural Data
Collection System contains data on objects of cultural advancement, cultural human resources,
cultural institutions, cultural facilities and infrastructure, and other data related to culture
advancement. As for the characteristics of the Integrated Cultural Data Collection System that
is concluded from the Law on Cultural Advancement, namely:
- Integrating all cultural data in one system. These characteristics are drawn from the
general provisions, in Law No. 5 of 2017 Article 1 Number 12: "The Integrated Cultural
Data Collection System is the main data system that integrates all Cultural data from
various sources."

253
Indonesia, Law No.5 of 2017 concerning Cultural Advancement, Article 16.
254
Indonesia, Law No.5 of 2017 concerning Cultural Advancement, Article 15
255
Ibid.

148
 - Accessible to all people, Article 15 paragraph (5) of the Law on Cultural Advancement
states that the Integrated Cultural Data Collection System must be accessible to
everyone;
- Can be registered and updated by both the government and the community. These
characteristics can be found in Article 18: "Everyone can record and register the
expressions of folklore for the Advancement of Culture", Article 20 paragraph (1): "The
Central Government and Local Governments are required to update the data on the
designated Objects for the Advancement of Culture", as well as Article 20. paragraph
(2): "Everyone can update the data on the object of cultural advancement."

4.3.2. Preservation of Expressions of Folklore in Indonesia

• Documentation of Indonesia Expressions of Folklore
The protection carried out by the government on TCE/EoF will also lose its relevance and
legitimacy if the public does not know what the government will protect or laws regarding the
protection of TCE/EoF. therefore, to assist and educate the Indonesian people to be more
concerned about the protection of their TCE/EoF so far there has been a database created by
the State to compile works or knowledge that are categorized as Indonesian TCE/EoF.
In the documentation process, the government also ask the public participation in
documenting the TCE/EoF. Public involvement is a fairly prominent aspect in the process of
implementing the Law on Cultural Advancement, where public involvement is a positive action
to help the government in documenting the TCE/EoF. The highest form of public involvement
is in the form of involvement in the preparation of District/City Cultural Principles (Pokok
Pikiran Kebudayaan Daerah Kabupaten/Kota (PPKD)) and involvement in the Cultural
Congress.
And as previously explained, the Indonesian government has made efforts to record the
expressions of folklore in the Integrated Cultural Data Collection System, where the objective
of implementing the Integrated Cultural Data Collection System is:
- Supporting the implementation of Cultural Advancement;
- Creating a cultural data system that is reliable, effective, efficient and easily accessible
for use by the Government, Local Government, and / or Everyone; and
- Realizing a single, representative and integrated database.

149
 This goal is in line with Presidential Decree No. 39 of 2019 concerning Indonesian One
Data, in particular stated in Article 2 paragraph (2) b and c. This President Regulation aims to
help government to collect, manage, and utilize data accurately, sophisticatedly, integrated,
accountable, accessible, and usable. The management system is as follows:
a. In Presidential Decree 39/2019 concerning Indonesian One Data, all forms of
coordination between agencies related to data management through the Indonesian One
Data Forum which were formed at the central and regional levels;
b. The Indonesian One Data Forum is a forum for communication and coordination of
Central Agencies and Regional Agencies for the implementation of Indonesian One
Data (Article 1 Point 12)

In regulating the documentation of expressions of Folklore as mandated by law No. 5 of

2017 regulates the existence of four planning documents, which consist of District/City
Regional Cultural Principles (PPKD), Provincial Regional Cultural Principles, Cultural
Strategies, and Cultural Advancement Master Plans. The Cultural Advancement Law further
states that the four references are a series of documents will be arranged in stages.
And at the central level, the PPKD document has been followed up with the formulation of
a national-level cultural strategy. At the end of 2018 this document was completed and has
been officially submitted to President Joko Widodo. Because according to Article 13 paragraph
(6) of the Law on Cultural Advancement, this cultural strategy document must be stipulated by
the President.

• Educate the majority of Indonesian law enforcers and courts who do not
understand the concept of protection of the expression of folklore
The PTEBT Bill will also face problems in its implementation because many law
enforcement agencies have a low level of understanding of the concept of protection the
TCE/EoF.
Indonesian law enforcement officers were only introduced to the concept of IPR protection
in the mid-1990s when Indonesia was threatened with trade sanctions by the United States
government due to widespread violations of American IPR in Indonesia.
Following Indonesia's ratification of the World Trade Organization Agreement on Trade-
Related Aspects of Intellectual Property Rights in 2002, the legal apparatus began to read about
IPR regulation. As a consequence, it is understandable that many of them are still unfamiliar

150
with the modern principles and goals of folklore protection and confuse it with traditional IPR
protection, which has a different theory and intent.256
This perplexities situation over the concept and purpose of protecting the TCE/EoF can be
seen in the case of John Hardy, Ltd., against I Ketut Denny Aryasa, the Director General office
for IPR, Ministry of Law and Human Rights gave John Hardy the copyright for the Batu Kali
and Fleur motifs, even though both motifs are traditional Balinese motifs. Apart from that, the
court in this case also found the fact that the Director General office of IPRs gave John Hardy
the copyright for hundreds of other motifs and designs which are actually Indonesian traditional
motifs (News, 2008).
This incident reinforces a concern about the lack of understanding among Indonesian law
enforcement about the concept of protection for TCE/EoF, which confuses it with IPR
protection. This could hamper the implementation of the PTEBT Bill to protect Indonesia's
TCE/EoF. The panel of judges at the Denpasar District Court in charge of adjudicating this
case also has a lack of understanding of the protection concept of TCE/EoF. Although they
found that John Hardy had taken traditional Balinese artwork for their jewelery motifs, the
panel of judges did not use this fact as an excuse to punish John Hardy’s, the panel of judges
used facts related to copyright law in their consideration, that John Hardy's did not violate any
copyright infringement (Post, 2008).
The lack of understanding of the concept of expressions of folklore protection among law
enforcement officers is also caused by the lack of socialization by the government to introduce
the legal system in the PTEBT Bill to the public and law enforcers in Indonesia.
Although the PTEBT Bill was included in the 2010-2014 national legislation program
(Prolegnas), very few known about the PTEBT Bill and the government's concept of protecting
expressions of folklore.

• Reviving Customary Law and accommodating it in the PTEBT Bill

The PTEBT Bill must also include customary law in settling disputes between a group of
community. Disputes can arise between several groups of people who practice similar
TCE/EoF, and they both claim to be the custodian of the TCE/EoF.

256
What distinguishes sui generis system in PTEBT Bill from conventional IPR protection is the PTEBT
protection is provided for communal, not individual benefits. A cultural related works made by individuals
based on a tradition are considered a product of social and communal creativity. Therefore, these innovations
are not owned by individuals, but "controlled" by the community. In the protection of PTEBT, there are
concepts of "shared inheritance" and "benefit sharing" which are not found in IPR protection. So that the
purpose of protecting PTEBT is the maintenance of the common heritage.

151
 According to Peter Jaszi's research results, it shows that customary community institutions
and customary law are highly respected by local communities and indigenous peoples
throughout Indonesia (Jaszi, Traditional Culture: A Step Forward for Protection in Indonesia,
2010). Customary norms play a role in everyday life and are used effectively to resolve disputes
within the same society and between different groups of people.257
In addition, indigenous peoples also perceive that they have no place in the national legal
system. For them, national laws are difficult to exploit, high cost and time consuming.
Furthermore, they also do not trust the IPR enforcement agencies, or government agencies
and courts, which according to them do not understand their culture so it is not appropriate to
regulate the use of their TCE/EoF. For traditional communities, customary norms have
provided an adequate regulatory basis for them to manage their use of TCE/EoF.
For example, customary law controls the confidentiality of certain cultural heritage to
prevent the use of their TCE/EoF by third parties that are destructive or degrading to TCE/EoF.
Customary Law also regulates how the process of transfer and use of TCE/EoF within the
traditional community groups concerned.
With the important role that this customary law has, the PTEBT Bill should have an article
that places customary law and customary institutions as a medium for dispute resolution
regarding the use of TCE/EoF, permits to use TCE/EoF, and so on. The PTEBT Bill has so far
only used the national legal system and national courts to settle disputes over the TCE/EoF
(see Articles 22, 23, 24),258 although it is also possible to use customary law in the provision
of criminal sanctions (Article 25).

4.4. Protection of Expressions of Folklore in Regions/Districts in Post-Law No. 28 of

2014 Concerning Copyright

257
Customary laws and customary institutions are often used to resolve disputes that occur between community
groups. For example: The Pela Agreement was made between community groups in the Maluku islands to
maintain peace between them; Several customary agreements were made between the Dayak community and the
Madurese community in Kalimantan to resolve conflicts between them; The Malino Agreement which ended
ethnic conflict and SARA in Poso, Central Sulawesi, was based on the principles of customary law. See also
“Trusting Customary Figures for Regional Conflict Resolution”, KOMPAS, 6 April 2001
258
Article 22 states that a third party who has objections or is disadvantaged by the issuance of a utilization
access permit can file a lawsuit for the cancellation of the utilization access permit at the local district court.
Article 23 states that a lawsuit against the use of expressions of folklore without permission by a third party is
filed by the custodian before a district court. Article 24 states that claims or disputes related to the use of
expressions of folklore without permission can also be resolved in advance of arbitration or alternative dispute
resolution.

152
 The concept of folklore is closely related to the region as the “owner” of folklore, so that
the provincial and district/municipal governments hold important duties and functions in their
protection. Implementation of local government as regulated by Law No. 32 of 2004 as
amended by Law No. 23 of 2014 on Regional Government (Regional Government Law). As
for the matters of the central government is the obligatory government affairs and government
affairs of choice, which as provided for in Article 12 paragraph (1) to (3) Regional Government
Law.
Article 12 Paragraph (2) explicitly discusses the subject of culture. It can be seen that in
the Regional Government Law 2014 contributes to cultural protection but does not explicitly
mention its relevance to intellectual property rights. With the premise that folklore is an
expression related to art culture, knowledge culture and technological (know-how), the
existence of folklore must also be protected from local government.
The first step that can be taken in the protection of TCE/EoF in the regions/districts is to
identify all TCE/EoF owned by regions/districts throughout Indonesia. Identification can be
done by taking inventory of all TCE/EoF products in each area.
In carrying out an inventory of TCE/EoF, it can be done by empowering and optimizing
the existence of the Intellectual Property Management Unit in each region through the IPR
Centre or IPR Clinic for its management as mandated in Law Number 18 of 2002 concerning
National Systems for Research, Development and Application of Science and Technology
(Sudarmanto, 2012, p. 115) and in coordination with the Ministry of Law and Human Rights
as well as the local government.
Furthermore, if identification and inventory has been carried out, then protection measures
can be made through the methods that have been stated in the prevailing laws and regulations.
For example, as stated in Article 39 of the Copyright Law that for TCE/EoF whose creator is
unknown and the creation has not been announced, the state can hold the copyright and make
announcements in the interests of the creator or the communal interests. This can be done by
the Regional Government by coordinating it with other Regional Governments so that there
are no mutual claims on a particular TCE/EoF.
The role of the Regional Government in managing EBT can be through the Tourism office
in carrying out the TCE/EoF inventory in collaboration with HKI centers, in implementing
TCE/EoF management, the government must apply the general principles of good governance.
This principle becomes the foundation in managing TCE/EoF, so that in the short and long
term TCE/EoF can be inventoried (identified) and well managed.

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 In the era of regional autonomy, the role of local governments in managing traditional
culture as regional intellectual assets has become open in line with the enactment of Law No.
32 of 2004 concerning Regional Government. Article 13 paragraph (1) of Law No. 32 of 2004
concerning Regional Government states that:
“The mandatory affairs which fall under the authority of the provincial government are
which include development planning and control planning, and other mandatory affairs as
mandated by laws and regulations.”
The same applies to district/city governments as stipulated in Article 14 paragraph (1).
From these provisions, it can be concluded that the local government has an important role in
managing the potential for TCE/EoF in their region, and it is hoped that this management can
have a positive impact on improving the welfare of the people in the area concerned.
In Government Regulation No. 38 of 2007 concerning division of government affairs
between Provincial Government and Regency or City Government which is an implementing
regulation of Law No. 32 of 2004, Article 2 paragraph (4) letter q states that provincial
government affairs and regency or city covering the field of cultural and tourism affairs.
Furthermore, Article 7 paragraph (2) letter w states that the mandatory affairs that are obliged
to be carried out by the provincial government and district / city regional governments related
to basic services, one of which is TCE/EoF.
Government Regulation attachment No. 38 of 2007 distinguishes the division of
government affairs in the cultural and tourism sector, especially for the sub-sector of culture
into three functions, namely Government affairs, Provincial Government affairs and
Regency/City Regional Government affairs.
Provincial governments have affairs in terms of implementing national policies and
establishing provincial policies regarding IPR protection in the TCE/EoF sector. Meanwhile,
regency/city regional governments have affairs in terms of implementing national or provincial
policies and stipulating district/city policies regarding IPR protection in the TCE/EoF sector.
Therefore, at the regional level there is also a need for legal regulations governing the
protection of TCE/EoF in the regions as the implementation of regional policies regarding the
protection of intellectual property rights in the field of TCE/EoF.
As for the principles of local government in protecting TCE/EoF are:
- First, the principle of legal certainty, which is the principle in a state of law that
prioritizes the foundation of statutory regulations, propriety and justice in every policy
of state administrator. In managing TCE/EoF, the government must be based on clear
legal rules. As stated in the Copyright Law, the copyright on EBT is held by the state.

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 There needs to be an urgent formulation of government regulations so that they can
become the basis for carrying out tasks for local governments. Even though there is no
Government Regulation regulating TCE/EoF, actually local governments can also
manage TCE/EoF as exemplified in a study of Traditional Dances and Crafts in the
Province of Bangka Belitung Islands. The Regional Government has carried out
protection and inventory of Traditional Dances and Handicrafts, although it has not
been optimal due to various obstacles. The local government should have made a policy
through its work program to protect existing TCE/EoF.
- Second, the Principle of Orderly State Administration, namely the principle that
becomes the basis of order, harmony and balance in controlling the administration of
the state. In the management of TCE/EoF, there must be an order, harmony and balance
in its implementation. Regularity is marked by the existence of complete and clear laws
and regulations, as well as the existence of a good, accountable and transparent
governance system from central to local levels. So that a good TCE/EoF management
system, supported by a strong legal foundation, as well as adequate and professional
resources, will create prosperity for the community. Balance in the funding process
between regions in managing TCE/EoF is also important, so it requires the principle of
fairness in funding. Because from one region to another the needs are different and
there needs to be a clear program in each region to get funding.
- Third, the principle of public interest, namely the principle that prioritizes the general
welfare in an aspirational, accommodating, and selective way. This principle teaches
that in the management of TCE/EoF must involve the aspirations of the community, be
adjusted to the interests of the community and be selective in taking their aspirations.
So that the management of TCE/EoF can also involve local communities who have
concerns about TCE/EoF products produced by local communities. The results of
government policies on the management of EBT can be accepted by the community
and can lead to the welfare of the community. So, the public interest must take
precedence by involving the community in the process of making NRE management
policies as stated in various laws and regulations that mandate the involvement or active
role of the community or stakeholders in every policy making.
- Fourth, the principle of openness, namely the principle of opening oneself to the rights
of the public to obtain true, honest, and non-discriminatory information regarding state
administration while still paying attention to the protection of personal, class and state
secrets human rights. In the management of TCE/EoF, there must be an open attitude

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 for the government. Openness in providing useful information for the management of
TCE/EoF in an area so that TCE/EoF can be properly preserved, utilized and protected.
The government must also provide information about the importance of TCE/EoF
protection to the wider community, especially the indigenous people or community who
carry it. So that the indigenous people or community who carry them become aware of
the existing laws to be invited to work together in protecting the TCE/EoF. Information
delivery must be conveyed continuously and fostered, for example through
socialization and coaching activities for the development and preservation of TCE/EoF
products and their protection by providing material and non-material assistance from
the government.
- Fifth, the principle of proportionality, which is the principle that prioritizes the balance
between the rights and obligations of state administration. This principle can encourage
government performance in safeguarding TCE/EoF. The government's obligation is
clearly stated in the copyright law that the state holds the copyright on TCE/EoF. So
that the state is obliged to make future programs to manage and maintain TCE/EoF so
that it is not used by irresponsible or unlicensed parties for economic interests. The state
is also obliged to make good and complete regulations so that TCE/EoF protection can
be carried out based on strong and complete regulations. Because currently the
protection of TCE/EoF is still hampered by the incomplete existing regulations, or there
are no more specific regulations in the field of intellectual property that regulate them.
- Sixth, the principle of professionalism, which is the principle that prioritizes expertise
based on a code of ethics in the provisions of the prevailing laws and regulations. In
protecting TCE/EoF in government it is necessary to have qualified human resources
in the field of intellectual property. For that we need professional staff to handle this.
Local governments can invite universities and stakeholders who care about TCE/EoF.
So that in the management of TCE/EoF products it involves professional and expert
resources in their fields.
- Seventh, the principle of accountability, which is the principle that determines that
every activity and the final results of state administration activities must be accountable
to the public or the people as the holder of the highest state sovereignty in accordance
with the provisions of the prevailing laws and regulations. Finally, the management of
TCE/EoF products must be accountable to the Indonesian people, especially the
indigenous people or the community who carry them with the achievement of the
welfare of the wider community. The management of TCE/EoF products will be

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 accountable if the management is in accordance with applicable regulations and has a
strong and clear and transparent legal basis, through a good governance system.

4.4.1. Regional Expression of Folklore Protection Strategy

Article 38 Paragraph (1) of Law Number 28 of 2014 on Copyright, states that the copyright
on traditional cultural expression is held by the State. Furthermore, Article 38 Paragraph (2) of
Copyrights Law describes the obligation of the state as the owner of traditional cultural
expression, that is, the state shall inventory, preserve and maintain traditional cultural
expression as referred to in paragraph (1).
The designation of traditional cultural expression is also discussed in the 38 Paragraph (3)
of Copyrights Law, namely the use of traditional cultural expression as referred to in paragraph
(1) should pay attention to the living values in the carrier society.
Implementation of local government as regulated by Law Number 32 of 2004 as amended
by Law Number 23 of 2014 on Regional Government, as for the matters of the central
government is the obligatory government affairs and government affairs of choice, which as
provided for in Article 12 paragraph (1) to (3) of Regional Government Law. Article 12 (1) of
Regional Government Law discusses compulsory governmental affairs concerning basic
services including: education, health, public works and spatial arrangement, public housing
and settlement areas, peace, public order and the protection of the people; and social.
Article 12 Paragraph (2) of Regional Government Law discusses the obligatory
government affairs that are not related to the Basic Service, namely: labor, women’s
empowerment and protection of children, food, land, environment, population administration
and civil registration, community and village empowerment, population control And family
planning, communications, communication and informatics, cooperatives, small and medium
enterprises, investment, youth and sports, statistics, coding, culture, libraries and archives.
Article 12 Paragraph (3) of Regional Government Law discusses Preferred Government
Affairs, namely: marine and fisheries, tourism, agriculture, forestry, energy and mineral
resources, trade, industry and transmigration.
Culture and community empowerment in Article 12 Paragraph (2) of Regional Government
Law recognizes the existence of protection and management of folklore at the regional level.
With the regulation in the positive law should the steps of folklore protection can be done
properly at the level of local government.
The Republic of Indonesia is a legal state (droit constitutionel), then any establishment of
a state institution must have a legal basis so that the state institution can carry out its duties and

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authorities in accordance with the laws governing it. Therefore when a state institution will be
established it is obligatory to form its legal basis first so that the established state institutions
have clear authority limits. Of course this is to limit or avoid overlapping power between state
institutions.
Regional autonomy is also intended to provide a direct and targeted policy with the
principle of separation of power. The state or in this case the central government also do not
loose their hands on the existence of local government precisely the coordination of stability is
done in order to achieve ideal government.
Intellectual Property Rights is classified as an intangible assets object. Object is defined as
everything that can be made object of property rights. As an object, the properties of material
rights are also attached to intellectual property rights. One of them is transferable to another
party. Some basic theories of intellectual property rights protection proposed by Robert C.
Sherwood, there are five basic theories of intellectual property rights protection, are: (Sudrajat,
2010)
- Reward Theory,
- Recovery Theory,
- Incentive Theory,
- Risk Theory,
- Economic Growth Stimulus Theory.

TCE/EoF is closely related to indigenous peoples because the creation of literary and
artistic works such as legends, dances, traditional ceremonies and so forth is a legacy between
generations of a community of indigenous peoples. The recognition of those rights is governed
by the United Nations Declaration on the Rights of Indigenous Peoples which says that
indigenous peoples have the right to renew, use, develop and inherit the future generations of
history, language, oral tradition, philosophy, Literature, and to signify and use their own names
for communities, places and people.
Not only in the 1945 Constitution there is a regulation on the folklore, but also in Article
23 Paragraph (2) of Law Number 18 of 2002 on National System, Research, Development and
Application of Science and Technology. The article states the following: “The Government
guarantees the protection of local knowledge and wisdom, the indigenous cultural values of the
community, as well as the biological and nonhuman biodiversity of Indonesia”.
The law does claim to protect the culture but is not explained about the definition and
limitations of what is termed as culture and get proper protection.

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 Cultural heritage mentioned above is also the object of the tourism industry in Indonesia
which in Law No. 09 of 1990 on Tourism scope of museums, ancient relics, historical relics,
cultural arts, agro tourism tirta (water) tourism, buru (hunting) tourism, natural adventure
tourism, recreational parks, and entertainment venues that are only a tourism sector and it has
also been able to provide multiplier effects (multiplier effect) on improving the welfare of the
community, either directly or indirectly.
The existence of folklore is identical with the condition of a particular area and becomes a
city branding of the area so as to bring economic benefits for the region that exist folklore.
Maintaining the preservation of folklore can also have an effect on the economic, social and
political aspects. It cannot be separated from professional and proportional law enforcement.
The effectiveness or absence of a rule of law depends on how law enforcement is promoted.
As said B.M. Traverne who states “give me a judge, prosecutor, police and good advocate,
then I will fight crime though without a law”. Traverne’s statement is not ridiculous, if more
complex analysis is done. The state of Indonesia has many regulations, both containing
elements of punishment or administrative sanction is nothing more than paper. As in the
Copyrights Act, since birth was mandated by forming the implementing rules, but not formed
then there have been many disputes against folklore many are questioning because of the legal
basis that does not exist (rechtsvacuum).
The Draft Law on Protection and Utilization Intellectual Property of Traditional
Knowledge and Cultural Expression Tradition is regarded as the ideal product with its
regulation of protection with GRTKF. For countries that use the copyright regime as a folklore
protection framework it should follow the concept of rules that exist in the copyright regime
whereas some countries that are more suited to the Sui Generis regime are more likely to
believe that under certain circumstances, the copyright regime cannot be used as a concept
Protection of a particular creation, such as the principle of communality that is not much
explored in the copyright regime.
The perspective of regional autonomy arises in some written legal arrangements in
Indonesia, which should be implemented and in the dynamic aspect should the actions in the
framework of protection against folklore be governed by law (written rules). The lack of
folklore protection lies in the dynamic legal aspects of providing regulation that technically to
protect folklore. The need for protection arrangements is not only the rule of conduct but also
the legal political direction of the policy being made to be adjusted.

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 Protection against folklore is an ideal way of doing sprightful and targeted protection, the
area where the folklore is born and grows and is sustainable, so that the area better understand
the existence of folklore. Once the existence is known from the region can be an organization
or body formed by local government or involve from the community in the area to make an
inventory on the existence of folklore is then included in the list of folklore protection
nationally. It is certainly not difficult to understand the obligations of the constitutional order.

4.5.Dynamics of the Problem of Protecting Expressions of Folklore Under Copyright

Law

4.5.1. Factors That Cause Weak Legal Protection of Expressions of Folklore

4.5.1.1.Failure of Copyright Law to Protect Expressions of Folklore
The requirement under Copyright law is a major cause for its failure to protect TCE/EoF.
Copyright law protects original expressions and it is required that they be fixed in some tangible
medium to seek protection.
According to Article 9 of the TRIPS Agreement, copyright seeks to protect original
expressions of ideas. What is mean by originality is not defined anywhere in the copyright law,
but in the light of judicial pronouncements 259 , it generally connotes the term that which
originate from the author‘s ingenuity and is not copied from elsewhere.
In case of TCE/EoF, the outcome of the work is based on their association to the culture
itself and authorship over the work cannot be attributed to a single person (Farley C. H., 1997).
Copyright does not give community protection and in the case of Bulun Bulun v R&T
Textiles Pty Ltd (1998), Bulun Bulun was an artist who got permission from a particular clan
Ganalbingu to incorporate a sacred image of that clan to one of his work. However, Bulun
Bulun‘s work was altered and copied to a fabric, imported to Australia and was sold nationally
by the textile company without seeking his permission and also the clans‘ permission. The
Court held that copyright infringement would subsist in the case of altering and copying
Bulun‘s work but, this does not create an equitable right to the clan to claim copyright
protection.
The court further held that the work cannot constitute joint ownership, and quoted, “On
that basis alone, a person who supplies a creative concept to an artist who then performs the

259
University of London Press Ltd. vs University Tutorial Press Ltd. (1916) 2 Ch. 609.

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work is not a joint author with the artist. The commitment of skill and labor to the production
of the job itself is contemplated through shared authorship.”260
Community copyright protection was denied in the Australian case, Yumbulal v. Reserve
Bank of Australia261, where the aboriginal artist work was printed in the currency note. The
court held that it is difficult to reconcile the individual‘s interest with indigenous interests. In
this case, the Court stated that the Copyright Act did not provide adequate protection to the
community to regulate works that were essentially communal in origin.
Often the works of folklore are spoken, enacted, exhibited rather than being fixed in some
tangible form such as written, carved, engraved, etc. Lack of fixation especially in case of
folklore literary, artistic and musical works makes it difficult to be protected as a copyright.
Even if the work is to be protected by copyright, the term of protection is minimal and cannot
give extended protection beyond the term of sixty years after the life of author.
The expressions of works of such traditional communities protected by copyright, comes
into public domain beyond the prescribed term of protection.
The nature of traditional and cultural expressions are such that they have to be protected
for a long-term, at times eternally, as it is a matter of preserving and promoting the art, culture
and tradition. The copyright law also fails to provide defensive mechanisms to prevent
unauthorized usage of traditional works. This proves that copyright is an inadequate field of
law to protect the traditional and cultural expressions.

4.5.1.2.There Are No Implementing Regulations

Major obstacles were found, including the absence of implementing regulations from the
provisions of Article 38 paragraph (4) of the Copyright Law No. 28 of 2014. There have been
several discussions regarding the Draft of Government Regulation on TCE/EoF protection, but
have not yet resulted any appropriate protection system considering the characteristics of
TCE/EoF itself which actually do not fit well with the IPR regime.
And the characteristics of local communities who are the bearers of the rights of
expressions of folklore who do not really care about the idea of legal protection for their rights
to preserve their TCE/EoF.
Indonesian indigenous/local people basically value the togetherness and spiritual happiness
in life, while IPR protection is more individualistic-materialistic. This condition causes the

260
Fylde Microsystems Ltd. vs Kay Radio Systems Limited, (1998) IPR 481 at 486.
261
Yumbulal vs Reserve Bank of Australia, (1991) 21 IPR 481

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TCE/EoF protection system that has been offered in the current legal system not yet fully
effective.
Article 38 paragraph (4) states that further provisions regarding TCE/EoF which will be
further regulated in the government regulation as stated in paragraph 4 Law No. 28 Year 2014
but not yet realized. The Directorate General of IPR is still discussing the government
regulations related to TCE/EoF issues.
The Directorate General of IPR in terms of providing protection for folklore plays an
important role, because it has the authority, both nationally and internationally, to announce
and provide full information on works that are not known to the Creator.262
In the other hand it would be difficult perhaps impossible for the indigenous peoples to use
it to protect their works for several reasons. First, the position of Article 38 of the Copyright
Law is unclear if it is linked to the enactment of other articles in the Copyright Law. For
example, what if a folklore protected under Article 38 paragraph (1) is not authentic as required
by Article 1 paragraph (3) of Law No. 19 of 2002 where Law No. 28 of 2014 does not explain
whether this kind of expressions of folklore gets copyright protection or not, even though it is
a work that is classified as an TCE/EoF whose authenticity is difficult to find or prove.
Second, this provision only regulates the extent to which rights holders are and what if
foreigners reproduce or use works whose rights are held by the State, and the law which
contains this provision does not yet regulate about:
1. What kind of penalty will be obtained if there is a violation committed by a foreigner,
as well as
2. what procedural law will be used, whether civil or criminal, for foreigners outside the
territory of the Republic of Indonesia who are deemed to have violated these provisions.

Third, ethnic tribes or an indigenous people are only can sue a foreigners who exploit their
TCE/EoF works without the permission of the creator of the TCE/EoF, through the State, or
relevant government institutions.
As stipulated in Article 38, the State holds the Copyright on Folklore. Where the acquisition
of Copyright is in practice carried out by an automatic mechanism which is carried out directly
by the State without then discussing it with indigenous peoples who exist in the cultural
communities which is the actual custodian of the TCE/EoF.

262
Berne Convention Article 15 paragraph (4) point b

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 This is also raises many problems in practice. According to M. Dwi Marianto, protection
of TCE/EoF should not only protect the objects of the TCE/EoF itself but also cover the
protection of the indigenous people (Lutviansori, 2010, p. 116). So far, the protection of the
TCE/EoF has only prioritized the protection of the object of TCE/EoF, so that it is not
uncommon for the position of the indigenous community as someone who continuously
preserves the folklore but turns out to be neglected by the government.
The illustration is simple, when there is illegal use of TCE/EoF by foreigners, it is the
people who suffer losses, not the TCE/EoF. That is why public protection needs to have a
portion in legal protection.
The formulation of this article has a good protection in order to maintain the existence of
the licensor. However, in this case, this provision does not apply to TCE/EoF issues. It is
impressed that the government, without making a communication approach with the
indigenous people, has taken over the Copyright Folklore for any reason, therefore, in this case,
the position of indigenous peoples is unclear.

4.5.1.3.Related right Arrangements Neglected

This problem is clearly seen in the regulations on which part the indigenous people’s
position in relation to this Copyright. The Copyright Law seems to ignore the existence of
indigenous peoples themselves.
There is no regulation at all regarding the position of indigenous peoples in the copyright
protection. This is why many parties are not very aligned with the formulation of Article 38 of
the Copyright Law.
So far there has been no concept applied in this law which regulates the distribution of
royalties or economic benefits when certain cultures or TCE/EoF controlled by the State are
then utilized by foreign parties.
When the State in this case obtains economic benefits, do the indigenous peoples as
communities that preserve the TCE/EoF receive royalties and how much. In other words, the
Economic Rights and Moral Rights of local communities are not given enough attention.
Until now this has not been clear about the distribution of the economic or moral right if
we see from the government regulations, this problem must be regulated as soon as possible to
guarantee the rights of these indigenous people. This shows that existing regulations are not
comprehensive, in guaranteeing the rights of the people.

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 The expansion of economic rights called public domain payant is also adequate for the
protection and promotion of TCE/EoF. This requires users of commercial folklore or other
unprotected materials that are not subject to copyright, to pay for the use of the folklore.
Another extension of Economic Rights is called droit de suite, which is a type of resale
royalty that gives the Author the right to enjoy an increased value of the work (Priapantja,
2003, pp. 148-149).
The share of the profits derived from the sale or resale of TCE/EoF works can be used for
the benefit of the indigenous people or to promote their TCE/EoF works.
Moral rights legally guarantee that the integrity of a work is maintained. In the Western
context, Moral Rights originating from Europe are associated with the author's moral concern
for his work, they acknowledge the personal relationship an author has with his work.
In an effort to provide protection for TCE/EoF, it is necessary to expand the concept of
moral rights of the indigenous community have towards a work. There is a moral right attached
to an indigenous people, which can then be equated with an individual copyright and an artist's
moral rights. Moral rights generally consist of three kinds of rights which will be useful to
protect TCE/EoF. These rights represent the potential to monitor the publication or
dissemination of a work (including its alteration and withdrawal from the public), the right to
associate an artist's or tribal name with a work, and the right to prevent the misuse, destruction
or distortion of a work.263
In order to ensure adequate oversight of TCE/EoF by indigenous leaders, the communal
Moral Rights mechanism must be expanded continuously. Such rights will apply when a work
is exhibited, reproduced, displayed, used, or even transferred, and will be granted permanently
to the indigenous people and cannot be transferred.

4.5.1.4.Obstruction of the formation of the PTEBT bill

In connection with the objections related to the implementation of the IPR regime regarding
the protection of the TCE/EoF, the Government is considering making a sui generis law.
Several countries have proposed a sui generis protection system as an alternative to
protecting TCE/EoF. According to Rebecca Clements, cultural wealth should be protected by
the country of origin of the cultural wealth (Clements, 1991, p. 2).
The characteristics of Indonesian society are still strongly characterized by collective or
communal and religious systems, so that the behavior of the people is still imbued with and

263
Loc.cit., Priapantja.

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guided by this value system of customary law (Rahardjo, 2003, p. 96). Creating laws based on
different value systems will only cause problems in their implementation.
Peter Jaszi and his team on their research on Sui Generis Law formulated five basic
objectives that should serve as a guide for efforts to build this sui generis Law.
Of the following five objectives, the first three are oriented towards the ultimate goal of
regulation, and the last two are instrumental that they represent a consensus view of how sui
generis rules should function. The five goals are (Jaszi, 2009, pp. 134-137):
1. Ensure traditional artists and the arts community to receive the recognition they
deserve;
2. Provide protection from misappropriation;
3. Empower the traditional arts community to prevent misappropriation;
4. Ensure that the relevant legal institution is decentralized and transparent; and
5. Avoiding unnecessary interference.
The most important substance of the sui generis law is the clear recognition that local
people are the "owners" of the TCE/EoF concerned. It is hoped that customary law can be an
alternative source or material to formulate the rights of the local community in the sui generis
law.264
The principles of customary law that can be accommodated in the sui generis law include:
First, the regulation in the sui generis law is simple. This means that what is regulated in the
law is easy to understand by the wider community, and its implementation does not require
complicated procedures as is the case with IPR legislation.
This characteristic is in line with the simple mindset of almost indigenous people have.
This simple mindset is reflected, among other things, in the customary because customary law
does not recognize abstract legal institutions as well as “intellectual property” legal institutions.
Second, the sui generis law should not neglect elements that are based on religious norms.
This is in line with the customary law system which is “religious-magical.” This element is the
main factor that causes society to not be too materialistic. Because the indigenous people
believe that the TCE/EoF is a gift from God that the certain people must practice for the welfare
of mankind, so the economic rights is not only in the form of economic reward, but the
appreciation and recognition.

264
See the discussion on the Milpurrurru vs. Indofurn (Pty) Ltd., in Christine Haight Farley, “Protecting
Folklore of Indigenous Peoples: Is Intellectual Property the Answer?”, Connecticut Law Review, 1997, p. 4-7.
In this case, the determination of who owns the disputed design is based on Customary Law.

165
 Third, the sui generis law should be based on a social system that highly values
togetherness. This is in line with the customary law system which is not individualistic. In other
words, the sui generis law should not be based on the principles or notions of individualism as
in the IPR regime.
Adopting an individualistic system will only mean repeating the mistakes of the IPR regime
which have proven less successful in its implementation.
Fourth, the sui generis law must be able to guarantee or at least provide a high possibility
that the use of traditional knowledge or TCE/EoF and the practices associated with it can truly
provide welfare for the community in general. In this case the law concerned must be able to
provide certainty that the people who become custodians of the concerned TCE/EoF will truly
benefit from the TCE/EoF concerned.
The new sui generis law is expected to contain a significant project of developing a new
and comprehensive set of intellectual property rules to regulate the ownership and the use of
TCE/EoF, one that is not based in the copyright concept of “authors’ rights” but in a new,
cognate category of “custodial rights.” Such a set of rules would be derived by analogy to the
copyright, but with its provisions appropriately tailored to the new context. For example, this
was the aspiration of the much-discussed but little-implemented 1985 UNESCO/WIPO Model
Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit
Exploitation and other Prejudicial Actions (Lewinski S. v., 2003). In this understanding, a sui
generis protection system for TCE/EoF works will:265
1. Define the kinds of cultural content subject to protection, including old stories, motifs,
musical themes, and so forth, as well as contemporary interpretations of those inherited
traditions;
2. Specify the minimum conditions for protection and the duration of that protection;
3. Prescribe rules on the “ownership” of this protected content, including principles to
deal with control over uses of traditions held in common;
4. Confer a comprehensive set of exclusive use rights on owners, including the rights to
copy, adapt, perform, and broadcast the protected material in whole or in part;
5. Provide owners with access to courts or administrative bodies to proceed against
unauthorized users of protected material, as well as penalties for unauthorized use; and
6. Identify a set of limitations and exceptions (e.g., for private or educational uses) that
would qualify the exclusive rights otherwise conferred on owners.

265
Ibid., Peter Jaszi, p. 80.

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 In other words, such an ambitious law would attempt to do for traditional cultural materials
what patent does for qualifying inventions and copyright for new works of art. This is what
might be called the “related rights” vision of sui generis protection – that is, the implementation
of familiar IP rights, modelled on conventional doctrines, in a new and unfamiliar context.
Others use the term sui generis to refer to what might be called a “tool- kit approach.”266
Rather than mimicking conventional IP doctrines by attempting to make all manifestations of
traditional arts into objects of ownership under a comprehensive new protective regime, this
alternative approach to legal regulation of the traditional arts might involve, among other
things:
1. Creative application of conventional IP doctrines, including patent and copyright but
also extending to trademark, geographical indications of origin (GIs), and so forth;
2. Modification (as required) of conventional IP doctrines to better address problems of
traditional artists and communities;
3. Selective introduction of new ownership and use rules tailored to the traditional arts;
4. Importation of legal concepts from outside IP (including contract law);
5. Development of benefit sharing frameworks; and
6. (Potentially) much more, since responsiveness to real social and cultural needs is the
hallmark of this approach.

Overall, the current provisions in Copyright Law are quite good, especially the list of
protected works/creations of TCE/EoF as stipulated in the explanation of Article 38 of Law
No. 28 of 2014,267 which is broad enough to cover a wide variety of productions that appear in
the area of traditional cultural expression.
However, it would be more useful if the Copyright Law could broaden the explanation of
Article 38 to make it clearer that whatever legal claims the Indonesian state might have in terms
of "folklore", the surviving artists who work in various modes traditional rights enjoy copyright
as well as those who work in other media.

266
For an example of a specific (and relatively limited) implementation of this approach found in the legal
regime adopted by Panama in 2000. See in particular Arts. 10–15 of Law No 20 of June 26, 2000, on “Special
Intellectual Property Regime upon Collective Rights of Indigenous Communities, for the Protection of Their
Cultural Identities and Traditional Knowledge,” available at http://www.wipo.int/wipolex/en/details
.jsp?id=3400
267
Ibid., Peter Jaszi, p. 147.

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 In Indonesia, steps have actually been taken to enact a sui generis law in connection with
the protection of TCE/EoF. Several National Workshops were held to discuss this matter. The
Director General of IPR has even formulated a Draft Law on the PTEBT Bill. The scope of
study in the PTEBT Bill includes:
1. The underlying considerations/policies that need to be protected which is the
preservation of TCE/EoF, also morals, and economics rights;
2. Who should get the benefit sharing;
3. What kind of TCE/EoF that will be protected by the PTEBT Bill (definition and scope
of TCE/EoF;
4. The criteria that must be met and the limits that must not be violated;
5. Rights and obligations owned by the TCE/EoF holder, as well as the exclusion of the
obligations;
6. Protection aspects that have not been accommodated by the conventional IPR system;
7. What is the procedure for obtaining the utilization permit and what sanctions or fines
will be obtained if someone violate the provisions of the utilization;
8. The period of protection;

TCE/EoF is protected as long as it is maintained and developed traditionally and

communally by an indigenous people, TCE/EoF protection includes prevention of:
9. Using the TCE/EoF without permission;
10. Using the TCE/EoF without mentioning the source of the TCE/EoF;
11. Utilization of TCE/EoF is deviant and creates an incorrect impression or insulting.

In terms of using TCE/EoF for commercial purposes, Indonesian citizens are obliged to
enter into agreements with the indigenous people who is the owner of the TCE/EoF. Then, the
agreement must be registered at a government agency. Meanwhile, for foreign citizens is
obliged to apply for a utilization permit to the Regency Government, Provincial Government
or the Ministry concerned.
Requirements for the application for TCE/EoF utilization are that it must be completed
with a utilization agreement between the Applicant and the TCE/EoF Owner. The agreement
contains: the purpose of using TCE/EoF, types or results of the utilization, number of
reproductions, the utilization benefit sharing to the State and TCE/EoF owners. This utilization

168
permit is not required for activities such as: education, research and report that are not for
commercial purposes.268
The holder of the TCE/EoF utilization permit is obliged to give a part of the
results/product/outcome of the TCE/EoF utilization to the State and the TCE/EoF owner.
Meanwhile, a third party who has objections or is disadvantaged by the issuance of the
TCE/EoF utilization permit can file a claim for cancellation of the utilization permit through
the Commercial Court.269
According to Agung Damar sasongko, Head of the Legal Considerations and Research and
Development Section of the Directorate General of IPR, the reasons for the unrealized PTEBT
Bill are among others because it collides with the basic principles that must be applied: Does
it refer to Cultural Conservation or Legal Protection?
In the context of cultural preservation, anyone can preserve the TCE/EoF products. Both
native/local as well as immigrants or foreigners who are interested can utilize or studying the
TCE/EoF to maintain the existence of TCE/EoF in order to remain and the State has an ethical
imperative to preserve the diversity of traditional knowledge and TCE/EoF.
Meanwhile, in the context of legal protection, only people who are entitled or who have
received a permit can use or studying the TCE/EoF or want to develop a TCE/EoF product.
Thus, there will be parties who are prohibited or restricted from using or exploiting it.
In addition to the PTEBT Bill, the Director General of IPR had also drafted a Presidential
Regulation (Perpres) on a List of Genetic Resources, Traditional Knowledge, and Indonesian
Cultural Expressions Protected by the State. One of the obstacles that is still being debated is
the same problem, for example around the context of cultural preservation or legal protection,
when can an TCE/EoF work be registered as a new form of expression, and when should the
work be preserved as an TCE/EoF.
The alignment of the two interests needs to be maximized by considering and enabling the
preservation, growth and development of indigenous cultures.
Article 18 paragraph (1), (2), and (3) of the PTEBT Bill, also stipulates the provisions
regarding the sharing of utilization results between the applicant of the utilization and the
Owner or Custodian of Traditional Knowledge and TCE/EoF, which is:270
1. The applicant of the utilization is obliged to share a portion of the results of the

268
Indonesia, PTEBT Bill, Article 17 Jo. Article 18.
269
Indonesia, PTEBT Bill, Article 18 Jo. Article 21
270
Director General of Intellectual Property Rights, Ministry of Law and Human Rights of the Republic of
Indonesia, "The Role of the Intellectual Property Rights System in Protecting Traditional Knowledge and
Traditional Cultural Expressions", National Workshop regarding the PTEBT Bill.

169
 utilization to the Owner or Custodian of the Traditional Knowledge TCE/EoF
concerned;
2. In terms of utilization as referred to in paragraph (1) producing a new works from the
use of TCE/EoF, the Owner or Custodian of Traditional Knowledge and TCE/EoF has
the right to share profits from the commercialization of the new work;
3. The distribution of the utilization results as referred to in paragraph (1) and the profits
from the commercialization of the new work as referred to in paragraph (2) shall be
determined based on an agreement with suitable observance to appropriateness and
fairness.

Some academics in Indonesia are skeptical of the urgency of the PTEBT Bill, because they
see that in reality the government does not even care about the damage and loss of the
TCE/EoF, such as intangible cultural heritage and various artifacts destroyed and stolen
throughout Indonesia. (Online, 2009)
In addition, the majority of people still adhere to customary norms that respect the ethics
of sharing knowledge and do not recognize ownership and monopoly over intellectual works
(Kusumadara, 2002).
Towards the background of this customary norm, the community considers the concept of
IPR protection to TCE/EoF as vague as the conventional IPR concept, such as copyrights, and
related rights, patents, trade secrets, and industrial designs. Therefore, the PTEBT Bill will be
more acceptable to the public if the Bill does not only regulate IPR protection for the TCE/EoF,
but also regulates more comprehensive protection aimed at maintaining and preserving the
TCE/EoF and the protection of IPR is included as part of the maintenance and preservation of
the expressions of folklore.

4.5.1.5.Originality and Fixation Requirements are not Fulfilled

The Copyright Law requires the originality/authenticity of a Work that is produced based
on the ability of the mind, imagination, dexterity, skill or expertise expressed in a distinctive
and personal form.
Considering that most TCE/EoF works tend to be inspired by pre-existing traditions and
the imitation of successive patterns from time to time, it can therefore be argued that the
conditions for originality were not met. WIPO has observed that many TCE/EoF works are

170
repetitive works, they are based on tradition and the range of individual interpretations and
expressions is limited.
In addition, in principle, when viewed from the protection in copyright, everything in
TCE/EoF can be categorized as public domain, because if it is ordered historically, the period
of protection has passed. Thus, the concept of originality can be viewed as an obstacle to give
optimal protection for TCE/EoF.
The purpose of having an element of authenticity is to prevent other parties from exploiting
the work of its creators. According to the view of the indigenous people as the holders of
TCE/EoF consider such requirements irrelevant, because TCE/EoF is the property of the whole
community regardless of who created it.271
The concept of originality as regulated in Article 1 paragraph (3) of the Copyright Law is
the most basic concept in the protection of the Copyright regime. Indeed, in proving the
originality of a work, the Creator must prove that his creations are an original work if one day
there is a problem arise with the creation (Online, 2012).
TCE/EoF, as a culture that has been developing for a long time, is certainly very confusing
when it comes to questioning its originality. Because to find the originality of TCE/EoF, there
must be a research that delves into the history of hundreds of years ago.
In general, TCE/EoF is something that has lived in society with the concept of collective
sharing. In such a situation, of course it is very confusing, how can we find the originality of
TCE/EoF that has existed and lived for a long time in society to know who the original creator
of the folklore was. This has serious implications for indigenous people as most TCE/EoF
works tend to be represented verbally and visually.

271
Op.cit, Cita Citrawinda Priapantja, pp. 142-143.

171
 4.6.Enforcement mechanism
• The implementation of Domaine Public Payant
The public domain payant (also called by its French origin, the domaine public payant) is
a system by which a user of materials in the public domain is required to pay for a compulsory
license in order to reproduce or publicly communicate the work, despite its status in the public
domain. It is an idea one can retrace to Victor Hugo. In one of his speeches before the Congrès
littéraire international in 1878, this great writer advocated that copyright end at the death of the
author or of his/her direct heirs, to the benefit of the public domain of which he was an
enthusiastic proponent. He also argued in favour of setting up a public domain payant, that
would consist of the payment of a small fee for each exploitation of a public domain work, into
a fund devoted to the encouragement of young writers and creators272.
The idea of providing some remuneration from the publication of works in the field of
expressions of folklore in the public domain to benefit the indigenous people who hold the
traditional cultural expressions concerned.
Italy was often cited as an example of a Western country applying such regime, referred to
as Diritto Demaniale (Domain Right). Its system of public domain payant was however
abrogated in 1996.
Some nations, including Algeria, Kenya, Rwanda, Senegal, the Republic of the Congo
(Congo-Brazzaville), Côte d'Ivoire, and Paraguay, now have a payant public domain regime.
The predominance of African countries on that list can be explained by the inclusion of
provisions on literary and artistic property in the Bangui Agreement and its Annex proposing
the establishment of such a dictatorship.273
In some countries Algeria, and Rwanda, only the commercial or for-profit exploitation of
public domain material will be subject to the payment. In most cases, the integrity and paternity
of the work must also be respected.
In general, the scheme functions similarly to a compulsory license: usage is contingent on
payment of the required fee rather than obtaining prior authorization as in exclusive privileges.
The foregoing, on the other hand, is true in Algeria. The free use of a public domain job is
much more restricted in this situation.

272
See Victor Hugo’s speech of the 25th of June, 1878.
273
See article 59.

172
 The system of public domain payant is sometimes proposed as a model to protect traditional
knowledge against unpaid re-use by Western entrepreneurs274. This idea is already present in
some developing countries which apply the fee to exploitation both of the works in the public
domain and to folklore material.

• Institutional Registration in the Integrated Cultural Data Collection System and

Permit for the utilization of Cultural Advancement
The Law on Cultural Advancement has regulated government authorities starting from the
establishment, recording, and to manage and maintenance of the Integrated Cultural Data
Collection System. Article 15 paragraph (1) Law on Cultural Advancement states that the
Integrated Cultural Data Collection System is established by the Minister. Article 1 Number
17 of the Law on Cultural Advancement states that the Minister referred to in this Law is the
minister who carries out government affairs in the cultural sector. But this law does not specify
the ministry in question.
The minister as referred in Article 15 paragraph (1) is should coordinate the promotion of
the cultural advancement as referred to in Article 6 of Law on Cultural Advancement that this
ministry should collaborate with other ministries to promote traditional cultural expressions,
as for the names of these two ministries are: Coordinating Ministry for Human Development
and Cultural Affairs and (Kemenko PMK) and Ministry of Education and Culture
(Kemendikbud).
The inventory of objects for the promotion of culture consists of several stages carried out
through the Integrated Cultural Data Collection System, while several stages are recording and
documenting, based on Article 17 of the Law on Cultural Advancement. where the recording
and documentation is carried out by the Central Government and the Regional Government. In
addition, Article 18 states that the community can also contribute to the recording and
documentation stages, and must be facilitated by the Central Government and Regional
Governments (Farid, 2017).
In carrying out the coordination function, the Coordinating Ministry coordinates various
ministries, one of which is the Ministry of Education and Culture. The Ministry of Education
and Culture is in charge of administering government affairs in the fields of early childhood

274
M. LEISTNER, “Analysis of different areas of indigenous resources – Traditional knowledge”, in S. VON
LEWINSKI, Indigenous Heritage and Intellectual Property: Genetic resources, traditional knowledge and
folklore, Kluwer Law International, 2003, at 84. See also the section 17 of the Tunis Model Law on Copyright
of 1976.

173
education, basic education, secondary education and community education, as well as cultural
management to assist the President in administering the state government.275
In carrying out its functions in the cultural sector, the Ministry of Education and Culture
has a work unit namely of the Directorate General of Culture. The Director General of Culture,
pursuant to Article 18, is tasked with organizing the formulation and implementation of policies
in the fields of cinema, arts, traditions, history, intangible cultural heritage, museums, and other
cultures.276
Prior to the establishment of Law on Cultural Advancement, several ministries and
institutions had already made registration on TCE/EoF, that is the Ministry of Tourism and the
Directorate General of Intellectual Property (DJKI) (Kusumadara, 2016, p. 27).
These two ministries have cultural documentation aside from the documentation owned by
the Ministry of Education and Culture, but they have not been consolidated with one another.
With their cultural data, in fact, both the Ministry of Tourism and the DJKI have the potential
to manage the Integrated Cultural Data Collection System. However, the Ministry of Tourism
handles technical matters related to culture in the field of a tourism potential,
while DJKI handles the overall form of protection for IPRs.
Government regulations regarding the work and management of the Integrated Cultural
Data Collection System have not been formed until this thesis is written, however, the
Government Regulation will specifically designate a committee that will administer the system.
But the Cultural Advancement Law still does not specifically explain the authority of the
Central Government and Regional Governments in terms of recording the TCE/EoF in the
Integrated Cultural Data Collection System. Therefore, the authority of Central Government
and Regional Government will refer to the provisions of Law No. 23 of 2014 concerning
Regional Government.
The protection of Culture – based on Article 9 of the Regional Government Law is a
concurrent governmental affair, that are divided between the central government and provincial
regions and district/city regions.277
Concurrent government affairs which become regional authorities in Article 11 consist of
mandatory government affairs and optional government affairs. Government affairs must be
further divided into mandatory government affairs related to basic services and not related to

275
Indonesia, Presidential Regulation of the Republic of Indonesia Number 14 of 2015 concerning the Ministry
of Education and Culture, Article 2.
276
Ibid, Article 18.
277
Indonesia, Law No. 23 of 2014 concerning Regional Government, Article 9.

174
basic services. Article 12 then states that TCE/EoF is an obligatory government affair that is
not related to basic services. The division of affairs between the Central Government,
Provincial Government and Regency/City Government in the field of culture is described as
follows:278
a. Central government
- Cultural management across provinces;
- Protection of communal intellectual property rights in the field of TCE/EoF;
- Preservation of traditions across provinces.
b. Provincial area
- Cultural management in which the community is in cross-regency or municipal in one
provincial Region;
- Preservation of traditions whose adherents are in cross-regency or municipal in one
provincial Region;
- Structuring customary institutions whose adherents are in cross-regency or municipal
in one provincial Region.
c. Regency/city area
- Management of culture in which the community is involved in the district/city;
- Preservation of tradition whose adherents are in the district/city;
- Fostering customary institutions whose adherents are in the regency/city area.

After all the documentation result of each district/city have been collected in the provincial
Regional Government, each provincial Regional Government can submit the results of the
documentation to the institution or committee of the Integrated Cultural Data Collection
System.
After all the documentation has been collected then an Integrated Culture data collection
system is formed by the Ministry of Education and Culture and the recording is carried out by
the district/city and provincial governments gradually.
Because Indonesia have more than seventeen thousand islands, including Sumatra, Java,
Kalimantan, Sulawesi and Papua then the process of recording Indonesian culture is so weak
because the territory is spread out which makes integration of cultural data collection more

278
Ibid, Article 12.

175
difficult. However, it is possible that data collection will be successfully carried out by a
country with a wide and scattered area, as has been done by the Chinese Government.279
As parties with an interest in issuing a permit for the use of TCE/EoF, the provincial and
district/city governments in this case also have authority over the management of TCE/EoF in
their territory, and the involvement of custodians from each community group in the Integrated
Cultural Data Collection System.
Article 37 of the Cultural Advancement Law requires that large industries and foreign
parties that want to use objects of cultural advancement for commercial purposes must have a
Permit to use. This license can be obtained if the industry and foreign parties have met the
following requirements:
- Has prior informed consent;
- Benefit sharing;
- Inclusion of the origin of the expressions of folklore.

Prior informed consent is also required in the Nagoya Protocol to the Convention on
Biological Diversity on Access to Genetic Resources and the Equal and Equitable Distribution
of Benefits Resulting from Their Use (ABS).280 There must be a mutually agreed-upon term
for conventional expertise or TCE/EoF relevant to genetic information.281
However, in Article 37 on Cultural Advancement Law, prior informed consent is required
for all objects of cultural advancement that will be utilized. In addition, there is no provision
regarding collective agreement in the Law on Cultural Advancement.

279
Since the 1950s, the Chinese government has codified traditional culture them as a protective measure. The
steps they take are by taking notes, sorting out, and recording the genre of art, traditional opera, proverbs,
poetry, music and vocals, performing or performing arts, make-up, drawings or paintings, architecture of
residential buildings, etc. one document. The collection was finally codified in 1979 into 10 collections and
annals of works of art and culture. All information is then processed to be entered into a database. Op.cit., Agus
Sardjono, p. 294-295.
280
The Nagoya Protocol is an additional agreement to the Convention on Biological Diversity (CBD). The
Nagoya Protocol provides a transparent legal framework for the effective implementation of one of the three
CBD objectives: fair and equitable sharing of benefits arising from the use of genetic resources and traditional
knowledge as outlined in Article 8j of the CBD. (Convention on Biological Diversity, “About the Nagoya
Protocol”, https: // www.cbd.int/abs/about/, accessed 17 December 2020.
281
This condition is specified in Article 7 of the Nagoya Protocol as follows: "In compliance with domestic law,
each Party shall take adequate steps to ensure that traditional information identified with genetic resources
owned by indigenous and local communities is obtained with the prior and informed consent or permission and
participation of these indigenous and local communities." (Article 5 of the Nagoya Protocol on Access to
Genetic Resources and the Fair and Equitable Sharing of Benefits Resulting from Their Use to the Convention
on Biological Diversity.), https://www.cbd.int/abs/doc/protocol/nagoya- protocol-en.pdf, access on December
17, 2020.

176
 The second requirement for obtaining a permit for the use of objects of cultural
advancement is benefit sharing. The results of benefit sharing mentioned above must be used
to revive and maintain the ecosystem of the objects of the promotion of the related culture.
There are no clear boundaries regarding the use of the results of this benefit sharing, but
the explanation of Article 37 paragraph (3) of the Law on Cultural Advancement states that
what is meant by reviving and maintaining the ecosystem of the objects of cultural
advancement is to ensuring the availability of spinners, raw materials, skills, working
techniques, and natural dyes.
Benefit sharing as stated in the Nagoya Protocol must be fair and equitable. Article 5.2 of
the Nagoya Protocol has regulated CBD member countries to make policies regarding fair and
equitable benefit sharing.282
The Law on Cultural Advancement has regulated the benefits sharing in general but has
not yet required mutual agreement. In addition, the Law on Cultural Advancement does not
only focus on the benefits sharing from the use of TCE/EoF but on all objects of cultural
advancement. The PTEBT Bill (the Regional Representative Council version) can be a
reference for benefit sharing arrangements using collective agreements.283
The third requirement for obtaining a permit for the use of objects of cultural advancement
is the inclusion of the origin of the objects of cultural advancement. This requirement is stated
in Article 7 of the Nagoya Protocol also. Inclusion concerning the use of TCE/EoF is also
required in Law Number 13 of 2016 concerning Patents.284
The inclusion of origin in the Law on the Advancement of Culture is required for all objects
of cultural advancement that are utilized.
The three requirements for the Permit to use the TCE/EoF for the Advancement of Culture
as written in Article 37 of cultural Advancement Law require mutually agreed terms, to
accommodate mutual agreements on access to and use of Indonesian TCE/EoF by large

282
Article 5.2 Nagoya Protocol “Each Party shall take legislative, administrative or policy measures, as
appropriate, with the aim of ensuring that benefits arising from the utilization of genetic resources that are held
by indigenous and local communities, in accordance with domestic legislation regarding the established rights
of these indigenous and local communities over these genetic resources, are shared in a fair and equitable way
with the communities concerned, based on mutually agreed terms.”
283
Article 15 of the PTEBT Bill requires utilization with a certain economic scale to share benefits, for the
Caring Communities, either in monetary, fiscal, and / or other forms in accordance with the community's needs.
The benefit sharing is done based on mutual agreement. Article 17 of the PTEBT Bill requires the pouring of a
collective agreement in written form, unless otherwise stipulated by customary law.
284
Article 26 of the Patent Law requires that inventions relating to traditional knowledge must state the origin of
genetic resources or traditional knowledge used in the registration of the invention. Elucidation of Article 26 of
the Patent Law states that this is done so that genetic resources or traditional knowledge are not recognized by
other countries, as well as in the framework of supporting access and benefit sharing.

177
industries or foreign parties, this permit can be made in the form of a contract. This contract
can be made by the custodian representative and the Ministry of Education and Culture as the
representative of the Central Government.
In the event that the custodian does not have the legal capacity to represent his local
community in making contracts, the local district/city government concerned can represent the
local community in the contract making process by continuing to approach and follow-up the
contract making process with that local community. Or, to provide accommodation for all
parties involved, the Regional Government as the representative of the custodian together with
the Central Government, as well as the local community as the custodian, can jointly become
parties to the said contract (Sardjono A. , 2006, pp. 269-270).

• Benefit Sharing Requirements

There is a view among the drafters of the PTEBT Bill that Indonesian expressions of
folklore must be protected from unauthorized use by foreigners. The PTEBT Bill requires that
only foreigners, foreign legal entities, and Indonesian legal entities with foreign
investment are required to obtain access permits for the utilization of expressions of folklore
from the government. After obtaining a utilization access permit, they are required to enter into
a Utilization Agreement with the expressions of folklore custodian.
Article 12 of the PTEBT Bill states that after obtaining a utilization access permit as
referred to in Article 6 paragraph (10), the Applicant must enter into a utilization agreement
with the Custodian of Traditional Knowledge or TCE/EoF within a period of one year from
the time the utilization access permit is granted, in Article 12 the applicant is defined as a
foreign person or foreign legal entity or Indonesian legal entity with foreign investment (Article
1 number 7 PTEBT Bill).
These articles which exclude the Indonesian from the benefit sharing requirement clearly
ignore the fact that most Indonesian TCE/EoF is used by fellow Indonesians (Jaszi, Traditional
Culture: A Step Forward for Protection in Indonesia, 2010, p. 98), most often by Indonesian
companies, for industries like textile, entertainment, cosmetics, and herbal medicine
companies. This means that the government does not respect the indigenous and local
communities who have maintained and preserved Indonesian expressions of folklore.
Therefore, to preserve Indonesian TCE/EoF and to respect indigenous and local
communities, the PTEBT Bill does not only require foreign legal parties but also requires
Indonesian legal parties to share the benefits of implementing the TCE/EoF with the
assisting of the custodian of the TCE/EoF.
178
 The sustainability of Indonesian TCE/EoF depends on this benefit sharing. The benefit
sharing from the use of TCE/EoF can help create new, better, and beneficial situation for future
generations.
Benefit sharing can be in the form of monetary compensation, both cash payments, and
royalties. In addition, Benefit Sharing can also be in the form of non-monetary compensation,
for the Indonesian indigenous people who rarely value their TCE/EoF from an economic or
commercialization point of view, especially from IPR point of view, benefit sharing in the form
of non-monetary compensation will be preferable to that in the form of monetary
compensation.
Therefore, the benefit sharing arrangement that is most suitable for the indigenous people
is a model that has been practiced for centuries in Indonesia, which has enriched Indonesian
TCE/EoF, such as if a new product or work made under Indonesian TCE/EoF it must be
“returned” and made available to the public who has maintained the TCE/EoF concerned.

• PADIA (Persetujuan Atas Dasar Informasi Awal) (Prior Informed Consent)

To provide a solution to the issue of misappropriation of TCE/EoF, the concept
of PADIA and the benefits sharing was introduced. The aim here is to provide meaningful
protection for TCE/EoF while avoiding the kind of disincentives for new creativity and
knowledge production associated with conventional intellectual property.285
Whether this objective will be achieved and whether the approach is considered as an
overall fit will depend on how to define specific operational definitions of the important terms.
These terms include:286
- Exclusions specifically in research, scientific, academic activities and other activities
in the area of educational, without prejudice to the requirements or obligations of
affirmative recognition and attribution that have been proposed;
- "Commercial exploitation for profit". This includes but is not limited to performances,

285
The PADIA system and benefit sharing can provide meaningful protection for the manifestation of
traditional art without reducing it to the status of things that can be stockpiled and traded.
286
There is a fundamental difference with the Revised Draft for the Protection of Expressions of Folklore from
the WIPO Inter-State Commission on Intellectual Property, Genetic Resources, Traditional Knowledge and
Folklore, which is an addition to the WIPO/GRTKF/IC/9/4 document, on Expression Cultural / Folklore: Policy
Directions and Main Principles Cultural Expressions / Expressions of Folklore: Policy (January 9, 2006). In the
WIPO approach, prior informed consent (PADIA) is required only for third party users of a number of materials
(namely certain cultural or spiritual values for a community) where the use of traditional culture is a matter of
concern, users are required to share the benefits of the use, which will be determined by the competent party. On
the other hand, the research team here suggests that the requirement for prior informed consent should arise as a
consequence of the intended use, so that the type and extent of benefit sharing can be negotiated between
potential users and communities that are subject to direct commercialization.

179
 publications, broadcasting and advertising;
- Very similar and substantial plagiarism or imitation;
- Requirements or obligations of "reasonable efforts based on good faith to obtain
specific and affirmative agreements";
- The utilization agreement in consent must be given by "the person who properly
represents the community from which the material originates";
- The provision that the representative from a community whose TCE/EoF is used can
claim one or several types of benefit sharing in relation to the benefits derived from the
use of TCE/EoF concerned; and
- A statement that once the agreement is made, the use of TCE/EoF declared valid unless
the provisions in the benefit sharing agreement are not fulfilled, or are deemed unfair.

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 CHAPTER 5

CONCLUSION AND RECOMMENDATIONS OF PROTECTION OF EXPRESSION

FOLKLORE IN INDONESIA

• CONCLUSION
Protection of TCE/EoF is very important for Indonesia, where TCE/EoF has a big role in
the economic and social life of the indigenous/local community also TCE/EoF is an invaluable
national asset, therefore it must be protected and preserved.
From all the enforcement mechanisms that the writer has previously explained regarding
the protection of traditional cultural expressions, it can be seen that there have been efforts
made by various parties, both local communities who own traditional cultural expressions, as
well as cultural and artistic organizations, and the government. Although there are several
mechanisms that are deadlocked or obstructed in the process, efforts to protect traditional
cultural expressions have increased from year to year.
As the writer stated before the national body charged with the safeguarding of TCE/EoF is
the Directorate General for Culture (of the Ministry of Education and Culture). Within the
Directorate General for Culture, the Directorate of Internalization of Values and Cultural
Diplomacy (INDB, Internalisasi Nilai dan Diplomasi Budaya) as the implementing agency,
supported by the Centre for Research and Development of Culture of the same Ministry are
responsible for various aspects of TCE/EoF, such as inventorying (Madiyant, 2013, p. 34).
There are also Offices for Safeguarding Cultural Values (BPNB, Balai Pelestarian Nilai
Budaya) in 11 provinces of Indonesia that act as an interface with local communities (Culture,
2016).
The Directorate General for Culture also conduct a training in intangible cultural heritage
safeguarding that are provided by the Center of Development for Human Resources of Culture.
There is also formal training in artistic and cultural performances at Institut Seni Indonesia
(ISI; Indonesian Art Institute) and its three affiliates (ISI Denpasar in Bali, ISI Surakarta in
Central Java, ISI Padang Panjang in West Sumatra).
The INDB Directorate is responsible for collecting and holding documentation on
TCE/EoF and research results, which are compiled on the Indonesian intangible cultural
heritage database.
There is also an Internet portal that allows indigenous/local communities to upload
information on their TCE/EoF. The Centre for Research and Development of Culture has also

181
conducted research related to intangible cultural heritage elements in some areas in Indonesia.
The research result and its documentation such as photos, film and interviews is then used for
public education and the promotion of TCE/EoF.
Indonesia has established a national inventory called the Registrasi Warisan Budaya
Takbenda Nasional (Register of National Intangible Cultural Heritage), which is administered
by the INDB Directorate with the support, at the local level, of the 11 BPNB offices.
The inventory format was drawn up in 2009 by the Centre for Research and Development
of Culture (Pusat Penelitian dan Pengembangan Kebudayaan) and the NBSF Directorate
General at the time, in collaboration with UNESCO’s Jakarta Office. And it was published in
the form of a bilingual form (English and Indonesian).
The BPNB offices have been active in collecting data for this inventory. The approach
consists of collecting data from the community and filling in the forms, both electronically and
in hard copy.
The criteria for inclusion are that:
(i) the heritage corresponds to the definition of Article 2 of the Convention;
(ii) it responds to all 17 fields of the database;
(iii) it is in conformity with Indonesia’s laws, including on human rights; and
(iv) community consent is given. If the element contains sensitive information, access
to the data will be restricted.

The inventory form has fields corresponding to the current status of the element of
developed, maintained, fading out, threatened, extinct, TCE/EoF on the safeguarding plans for
the element and safeguarding actions proposed by the indigenous community.
The data are updated every two years and the 11 BPNB offices are responsible for checking
the existing and new data in consultation with the community, safeguarding suggestions are
also recorded and the indigenous/local community is regarded as a primary source both of
information on the element and proposals for its development.
Non-governmental organizations that also conducted a documentation on TCE/EoF which
also recorded it in their inventory entries and some also maintain their own inventories, they
may also be involved in sharing metadata with the Ministry.

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 Indonesia undertakes various actions to promote TCE/EoF or intangible cultural heritage
through exhibitions, festivals and similar events such as the Batik Summit 2011,287 the Wayang
Summit 2012,288 with puppetry performances from Indonesia and nine other countries, the
Saman Summit 2012289 and the International Ramayana Festival in 2013 with 600 performers
of Ramayana arts from nine countries.290
Education about TCE/EoF or intangible cultural heritage is of particular importance in
Indonesia, TCE/EoF or intangible cultural heritage-related content has been integrated into the
school curriculum as local or extra-curricular content at all levels, up to high school. For
example, the Batik technique is taught in Pekalongan Vocational School and textile art is taught
in the local junior school.
The programme entitled “Education and training in Indonesian Batik intangible cultural
heritage, in collaboration with the Batik Museum in Pekalongan” was recognized by the
Committee as a Best Practice in 2009 (Unesco, 2009).
At the higher education level, Kris is taught in the Institute of Arts Surakarta, and also
Gadjah Mada University offers a course in the Philosophy of Puppetry and Angklung is taught
at the Indonesian Academy of Arts.
Educational and training programs have also been provided in relation to specific TCE/EoF
elements both inscribed and not inscribed. These include seminars, symposia and workshops
for community members given by masters, experts and community members. In 2018 a
international puppet festival by Sena Wangi is conducted in National Theatre Yangon 291 also
In 2006, Sena Wangi set up the Asian Puppetry Association for safeguarding and developing
puppetry in ten ASEAN countries. It has also been instrumental in establishing the Indonesian
National Centre of UNIMA, and regular workshops were held by the Angklung Society.292
The National Kris Secretariat has conducted regular symposia and workshops for
community members with governmental support. As a form of education in the community as

287
World Batik Summit 2011, https://lldikti12.ristekdikti.go.id/2011/09/28/world-batik-summit-2011.html, see
also https://nationalgeographic.grid.id/read/13280409/world-batik-summit-2011-digelar-di-jakarta, access on 20
December 2020.
288
Wayang Summit 2012, https://investor.id/lifestyle/wayang-summit-2012-digelar-di-monas-jakarta, access on
20 December 2020.
289
Saman Summit 2012, https://www.beritasatu.com/hiburan/87428/memadukan-nilai-luhur-tari-saman-
dengan-teknologi-multimedia, access on 20 December 2020.
290
International Ramayana Festival 2013, https://www.thejakartapost.com/news/2013/11/02/international-
ramayana-festival.html, access on 20 December 2020.
291
First International Puppet Festival, https://senawangi.org/first-international-puppet-festival/, acces on 20
December 2020.
292
Angkung performance and workshop, https://www.wur.nl/en/activity/Harmony-of-Bamboo-Angklung-
Performance-and-Workshop.htm, see also, Indonesian Angklung: Intersections of Music Education and Cultural
Diplomacy, https://asia.si.edu/essays/article-hynson/, access on 20 December 2020.

183
well as a promotional activity, the Wayang Museum in Jakarta contains a comprehensive
display of wayang puppetry, from how the puppets are made to how to perform with them.
The primary means of non-formal transmission of TCE/EoF is through traditional
intangible cultural heritage schools (sanggar) and associations of enthusiasts for particular
elements. Moreover, even if this is then transposed to the formal educational setting, the
traditional transmission methods remain the same, as in the case of a puppetry master giving
classes in a school.
As far as bilateral, sub-regional, regional and international cooperation is concerned, in
2012, Indonesia becomes the first host to hosted a sub-regional workshop on intangible cultural
heritage in cooperation with International Information and Networking Centre for Intangible
Cultural Heritage in the Asia-Pacific Region (ICHCAP) and participants from 11 South-East
Asian countries.
Indonesia held the World Culture Forum on The Power of Culture in Development in
November 2013 with 391 overseas participants, 71, Indonesia has four elements on
the Representative List that are subject to reporting which is: Wayang puppet theatre
incorporated in 2008 after being proclaimed a Masterpiece of the Oral and Intangible Cultural
Heritage of Humanity in 2003; Indonesian Kris also incorporated in 2008, having been
proclaimed a Masterpiece in 2005; Indonesian Batik in 2009; and Indonesian Angklung in
2010.
Inscription and the associated publicity have not only enhanced awareness of the elements
themselves but also of intangible cultural heritage generally, while offering support to diverse
communities that practise different styles of these elements for example Batik and Kris.
The efforts made since inscription to promote and reinforce the elements that have some
common aspects, in the area of formal and non-formal teaching or transmission where the
elements have been introduced into school curricula as local content and extra-curricular
studies with teaching being provided by exponents using traditional methods.
Usually for the Angklung, training is provided on the techniques of making the Angklung
from the bamboo-based instrument and also the Forestry Service endeavours to increase the
availability of black bamboo for making the instrument.
Community associations and similar civil society organizations also play a central role in
the institutional context for such efforts, and were actively involved in the elaboration of the
present reports on the TCE/EoF.
Legal protection is not only to avoid misappropriation but also beneficial for equity and
economic development. By making laws that are sui generis based on TCE/EoF that develop

184
in the local community. Therefore, the PTEBT bill which has never been discussed in the
House of Representatives (DPR), needs to be encouraged so that it can be discussed as a law.
Protection is intended to improve the welfare of the community, not only for humanitarian
purposes as the views of the indigenous people, but directed towards increasing the economic
welfare of every member of the community, through access given to foreign companies with
fair economic benefits and accepted by the community as the owner of Traditional Knowledge
and TCE/EoF. As national laws should deny to any person or corporation the right to obtain
patent, copyright or other legal protection for any element of indigenous peoples’ heritage
without adequate documentation of the free and informed consent of the traditional owners to
an arrangement for the sharing of ownership, control, use and benefits. And also should ensure
the labelling and correct attribution of indigenous peoples’ artistic, literary and cultural works
whenever they are offered for public display or sale.
As the protection of Intellectual Property Rights towards TCE/EoF has not been able to
provide overall protection, due to the characteristics of IPR that differ from TCE/EoF, in order
to provide a more adequate legal protection of these TCE/EoF, a sui generis law based on IP
law may be designed. The term sui generis means “of its own kind”, and it pertains to a law
which is designed specifically to respond to the needs of indigenous community as the owner
of TCE/EoF.
WIPO recommends that each country design its own sui generis law on traditional knowledge
and TCE/EoF protection, and this path seems to be the best route for Indonesia to truly protect
its TCE/EoF.
For the better improvement of protecting the TCE/EoF in Indonesia, the Indonesian
government together with the indigenous people can discuss together to make a draft bill for
the protection of communal right of the indigenous people.

• RECCOMENDATIONS
Based on the above conclusions, the authors propose several improvement proposals as
follows:
1. The government should disseminate information to local communities about the
importance of understanding the protection of traditional cultural expressions in order
to exploit the economic potential they contain. What the Indonesian government needs
to do is through a communication and education approach, where the public is generally
given the knowledge that the point is that the protection of EBT through the copyright
regime is related to improving the economy of the local community. Education also
185
 needs to be done to support the inventory process carried out by the state of EBT in
Indonesia.
2. The government could also consider making a sui generis law as an alternative, and
also continue the drafting of the PTEBT Bill. This law can be made by mobilizing
existing laws or complementing existing laws by accommodating the principles of
customary law.
3. The government must make efforts to protect traditional knowledge and traditional
cultural expressions by identifying, taking inventory and registering all existing
traditional knowledge and traditional cultural expressions through an internationally
authorized institution through UNESCO.
4. It is better if the regulations on the protection and management of traditional cultural
expressions also prioritize aspects of justice for indigenous peoples as the leaders, in
the form of a benefit sharing agreement between the customary law community and
other parties in the use of these traditional cultural expressions.

186
 BIBLIOGRAPH
WIPO, I. B. (2008). Regional Expert Meeting On The Establishment Of A Caribbean
Framework For The Protection Of Traditional Knowledge, Folklore/Traditional
Cultural Expressions And Genetic Resources . Kingston: the Jamaica Intellectual
Property Office.
WIPO. (2002, May 20). WIPO/GRTKF/IC/3/9 Intergovermental Committee on Intelllectual
Property and Genetic Resources, Traditional Knoledge and Folklore. Retrieved from
Wipo.int:
https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/wipo_grtkf_ic_3_9.pdf
Purba, A. (2005). TRIPs-WTO dan Hukum HKI Indonesia (kajian Perlindungan Hak Cipta
Seni Batik Tradisional Indonesia). Jakarta: Rineka Cipta.
Posey, D. a. (1996). Beyond Intellectual Property: Toward Traditional Resource Rights for
Indigenous Peoples and Local Communities. Ottawa: International Development
Research Centre.
Johnson, M. (1992). “Research on traditional environmental knowledge: its development and
its role”, in M. Johnson (ed.), Lore: Capturing Traditional Environmental
Knowledge. Ottawa: IDRC.
WIPO. (2020, Sept 29). Traditional Knowldege . Retrieved from wipo.int:
https://www.wipo.int/tk/en/tk/
Kusumohamidjojo, B. (2000). Kebhinnekaan Masyarakat Indonesia: Suatu Problematik
Filsafat Kebudayaan. Jakarta, ID: Grasindo.
Jaszi, P. (2010). Traditional Culture: A Step Forward for Protection in Indonesia. Washington
College of Law Research Paper No. 2010-16, American University Washington
College of Law.
Sardjono, A. (2010). Hak Kekayaan Intelektual & Pengetahuan Tradisional. Bandung, ID:
PT Alumni.
Tempo.co. (2020, October 17). LSM Gugat Penjiplakan Ukiran Jepara. Retrieved from
nasional.tempo.co: https://nasional.tempo.co/read/1396915/pollycarpus-meninggal-
karena-terpapar-covid-19
Helpdesk, E. I. (2020, October 20). What is the meaning of the term "Intellectual Property
Rights (IPRs)"? Retrieved from iprhelpdesk.eu: http://www.iprhelpdesk.eu/node/34
Purba, A. Z. (2002). Post-TRIPs Intellectual Property Rights. Bandung, ID: Alumni.
Maskus, K. E. (2000). Intellectual Property Rights in the Global Economy. Washington, DC:
Institute for International Economics.
Saidin, H. O. (2004). Aspek Hukum Hak Kekayaan Intelektual. Jakarta, ID: RajaGrafindo
Persada.
Suprapedy, M. A. (2008). Pengenalan HKI (Hak Kekayaan Intelektual) Konsep Dasar
Kekayaan Intelektual Untuk Pertumbuhan Inovasi. Jakarta, ID: PT. Indeks.
Torremans, P. (2007). Copyright Law: A Handbook of Contemporary Reserach. Cheltenham,
UK: Edward Elgar Publishing Limited.
Danandjaja, J. (2003). Perlindungan Hukum Terhadap Folklore Indonesia. Perlindungan
Hukum Folklore & Traditional Knowledge by Direktorat Jenderal Hak Kekayaan
Intelektual.
Blakeney, M. (1999). What is Traditional Knoledge? Why Should it be Protected? who
Should Protect it? For Whom. Understanding The Value Chain on WPO Rountable on
Intellectual Property and Traditional Knowledge (WIPO/IPTK/RT/99/3,October 6,
1999), 2.
Stewart, M. a. (1989). International Copyright and Neighbouring Right 2nd Ed. London, UK:
Butterworths.

187
WIPO. (2020, Sept 30). WIPO, Model Provisions for National Laws on the Protection of
Experssion of Folklore. Retrieved from wipo.int:
https://www.wipo.int/edocs/lexdocs/laws/en/unesco/unesco001en.pdf
WIPO. (2002, May 16). WIPO/GRTKF/IC/3/11 Expressions of Folklore. Retrieved from
www.wipo.int:
https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/wipo_grtkf_ic_3_11.pdf
Lei, Q. (2001). A brief discussion on copyright protection for folklore works. Retrieved June
18, 2020, from ipr.chinadaily.com: https://ipr.chinadaily.com.cn/2011-
11/02/content_14024860.htm
Sardjono, A. (2010). Hak Kekayaan Intelektual dan Pengetahuan Tradisional . Bandung, ID:
Alumni.
PRC, I. o. (1994, June). Intellectual Property Protection in China. Retrieved from
http://www.china-un.ch: http://www.china-
un.ch/eng/bjzl/t176937.htm#:~:text=China%20has%20a%20complete%20legal,and%
20exposure%20to%20administrative%20sanctions.
Lutviansori, A. (2010). Hak Cipta dan Perlindungan Folklor di Indonesia. Yogyakarta, ID:
Graha Ilmu.
Dutfield, T. W. (2011). Public Interests Intellectual Property Advisors, Intellectual Property
and Human Developmet: Current Trend and Future Scenario. Cambridge, UK:
Cambridge University Press.
Kuruk, P. (1999). Protecting Folkloe Under Modern Intellectual Property Regimes: A
Reappraisal of the Tensions Between Individual and Communal Rights in Africa and
United States. American University Law Review, Vol 48, Issue 4, Article 2.
Hornby, A. S. (1995). Oxford Advanced Learner’s Dictionary. Oxford, UK : Oxford
University Press.
Mamudji, S. S. (2004). Penelitian Hukum Normatif Suatu Tinjauan Singkat. Jakarta, ID: PT
RajaGrafindo Persada.
Winarno, S. ( 1994). Metode dan Tekhnik dalam bukunya, Pengantar Penelitian Ilmiah
Dasar Metode Tekhnik. Bandung, ID: Tarsito.
Sutopo, H. ( 1998). Metodologi Penelitian Hukum Kualitatif Bagian II. Surakarta, ID: UNS
Press.
Kwong, M. (2014, November 5). Six Significant Moments in Patent History. Retrieved from
reuters.com: https://www.reuters.com/article/us-moments-patent-
idUSKBN0IN1Y120141104
Kenton, W. (2019, June 25). Utility Patent. Retrieved from investopedia.com:
https://www.investopedia.com/terms/u/utility-patent.asp
Kenton, W. (2019, August 22). Plant Patent. Retrieved from investopedia.com:
https://www.investopedia.com/terms/p/plant-patent.asp
Kenton, W. (2019, August 21). Design Patent. Retrieved from investopedia.com:
https://www.investopedia.com/terms/d/design-patent.asp
Subbarao, A. (2019). Patent Licensing Technology Commercialisation Innovation Marketing
Licensing Intellectual Property. VNR Vignana Jyothi Institute of Engineering &
Technology, 3.
Office, U. C. (2019, December). Circular 1 Copyright Basics. Retrieved from copyright.gov:
https://www.copyright.gov/circs/circ01.pdf
Organization, W. I. (1993). Introduction to Trademark Law & Practice the Basic Concepts:
A WIPO Training Manual. Geneve, CH: WIPO Publication.
Nicolas Guyot. (2016, September). Fact Sheet The value of geographical indications for
businesses. Retrieved from www.iprhelpdesk.eu:

188
 https://www.iprhelpdesk.eu/sites/default/files/newsdocuments/Fact-Sheet-
Geographical_Indications_2.pdf
Conrad, A. (1996). The Protection of Geographical Indications in the TRIPS Agreement. En
The Trademark Reporter, Vol. 86, Issue 1, 11-46.
WIPO. (n.d.). Module 04. Trade Secrets. Retrieved from www.wipo.int:
https://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_panorama_4_learni
ng_points.pdf
Ricketson, S. (1984). The Law of Intellectual Property. Sydney.
Needham, J. (1969). The Grand Titration. Science and Society in East and West. London,
UK: George Allen & Unwin Ltd.
Buckland, W. W. (1931). The Main Institutions of Roman Private Law. New York, US:
Cambridge University Press.
Arnold, E. V. (1958). Roman Stoicism: Being Lectures on the History of the Stoic
Philosophy, with Special Reference to Its Development Within the Roman Empire.
London, UK: Routledge & K. Paul.
Sandbach, F. H. (1989). The Stoics Ancient culture and society Bristol classical paperbacks.
Indiana, US: Bristol Press.
Verbeke, G. (1983). The Presence Of Stoicism In Medieval Thought. Washington, D.C.:
Catholic University of America Press.
Cook, T. I. (1947). Two Treatises of Government: by John Locke With a Supplement,
Patriarcha, by Robert Filmer. New York, US: Hafner Press.
Moore, A. D. (1997). A Lockean theory of intellectual property . Doctoral dissertation, The
Ohio State University, 82.
Palmer, T. G. (1990). Are Patents and Copyrights Morally Justified? Harvard Journal of Law
& Public Policy, Vol. 13 Number 3.
Fisher, W. (n.d.). Theories of Intellectual Property. Retrieved from cyber.harvard.edu:
https://cyber.harvard.edu/people/tfisher/iptheory.pdf
Tavani, R. A. (2005). Intellectual Property Rights in a Networked World: Theory and
Practice. United States of America: Information Science Publishing.
Easterbrook, F. H. (1990). Intellectual property is still property. Harvard Journal Of Law &
Public Policy 13.
Wolff, J. (2006). Libertarianism, Utility, and Economic Competition. Virginia Law Review
92, no. 7 .
Jubaedillah, M. D. (2014). Hak Milik Intelektual: Sejarah, Teori, dan Praktiknya di
Indonesia. Bandung, ID: PT. Citra Abadi Bakti.
Purba, A. (2005). TRIPs-WTO dan Hukum HKI Indonesia Kajian Perlindungan Hak Cipta
Seni Batik Tradisional Indonesia. Jakarta: PT.Rineka Cipta.
Bainbridge, D. I. (2009). Intellectual Property, Seventh Edition, Pearson Longman. Gosport,
UK: Ashford Colour Press Ltd.
WIPO. (2016). Understanding Copyright and Related Rights. Retrieved from wipo.int:
https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf
Streibich, H. C. (1976). The Moral Right of Ownership to Intellectual Property: Part II From
the Age of Printing to the Future. University of Memphis Law Review, Cecil C.
Humphreys School of Law.
Hauhart, R. C. (1983). Development of the British and American Patent and Copyright Laws.
Whittier Law Review, Whittier Law School. 5 (1).
Robinson, A. (1991). The Evolution of Copyright, 1476–1776. Cambrian Law Review,
University of Wales Press. 22 (1).

189
Abrams, H. B. (1985). The Historical Foundation of American Copyright Law: Exploding the
Myth of Common Law Copyright. Wayne Law Review, Wayne State University Law
School. 29 .
Fitzgerald, B. A. (2014). A Short History of Copyright: The Genie of Information.
Switzerland, CH: springer international publishing .
Jonathan, R. (1997). Cyberlaw: the law of the internet. New York, US: Springer.
Ronan, D. (2006). Rethinking copyright: history, theory, language. Cheltenham, UK: Edward
Elgar Publishing.
Hofman, J. (2009). Introducing Copyright: A Plain Language Guide to Copyright in the 21st
Century. Vancouver, CA: Commonwealth of Learning.
Bainbridge, D. I. (2009). Intellectual Property, Seventh Edition. Gosport, UK: Pearson
Longman, Ashford Colour Press Ltd.
Academy, T. R. (2020, November 8). The Cathach / The Psalter of St Columba. Retrieved
from www.ria.ie: https://www.ria.ie/cathach-psalter-st-columba
Bettig, R. V. (1996). Copyrighting Culture: The Political Economy of Intellectual Property.
Boulder, Colorado, US: Westview Press.
Edward W. Ploman, a. L. (1980). Copyright: Intellectual Property in the Information Age.
London, UK: Routledge & Kegan Paul.
Workplace, T. I. (2008, September 3). Islam Forbids the Violation of Copyrights and Laws
Regarding Intellectual Property. Retrieved from theislamicworkplace.com:
https://theislamicworkplace.com/2008/09/03/islam-forbids-the-violation-copyright-
laws-and-laws-regarding-intellectual-property/
Martial. (1978). The Epigrams Classics Series. Penguin Books.
Law, C. f. (1964). Ladbroke v William Hill (1964) 1 All ER 465. Retrieved from
www.cipil.law.cam.ac.uk: https://www.cipil.law.cam.ac.uk/virtual-museum/ladbroke-
v-william-hill-1964-1-all-er-465
Faculty of Law, U. o. (1937). Donoghue v. Allied Newspapers, Ltd. (1937) 3 Ch. D. 503.
Retrieved from www.lawfaculty.du.ac.in:
http://lawfaculty.du.ac.in/files/course_material/Old_Course_Material/V%20Term%20
Intellectual%20Property%20Right%20July%202016.pdf
School, C. L. (1991). Feist Publications, Inc., Petitioner V. Rural Telephone Service
Company, Inc. Retrieved from www.law.cornell.edu:
https://www.law.cornell.edu/supremecourt/text/499/340
Libraries, C. U. (2020, November 10). Fair Use. Retrieved from
www.copyright.columbia.edu: https://copyright.columbia.edu/basics/fair-use.html
Yanto, O. (2017). Hukum Hak Cipta dalam Ranah Hak Kekayaan Intelektual. Indonesia:
WADE Group.
Margono, S. (2010). Hukum Hak Cipta Indonesia, Teori dan Analisis Harmonisasi Ketentuan
World Trade Organization (WTO-TRIPS Agreement). Bogor, ID: Ghalia.
Atmadja, H. T. (2003). Hak Cipta Musik atau Lagu. Jakarta, ID: Universitas Indonesia.
Sadikin, O. (2013). Aspek Hukum Hak Kekayaan Intelektual . Jakarta, ID: Rajawali Pers.
Hutagalung, S. M. (2012). Hak Cipta Kedudukan dan Peranannya Dalam Pembangunan.
Jakarta, ID: Sinar Grafika.
Damian, E. (1999). Hukum hak cipta menurut beberapa konvensi internasional, undang -
undang hak cipta 1997 dan perlindungannya terhadap buku serta perjanjian
penerbitnya. Bandung, ID: Penerbit Alumni.
Simatupang, R. B. (2007). Aspek Hukum dalam Bisnis. Jakarta, ID: Rineka Cipta.
Kusumaatmadja, M. (1978). Introduction to International Law. Jakarta, ID: Binacipta.
AK, S. (1985). International Treaty Law, according to the Vienna convention. Bandung, ID:
Armico.

190
Suryono, E. (1984). International Treaty Ratification Practices in Indonesia. Bandung, ID:
Remadja Karya.
Sastroamidjojo, A. (1971). Introduction to International Law. Jakarta, ID: Bharata.
WIPO. (n.d.). Berne Convention for the Protection of Literary and Artistic Works. Retrieved
from www.wipo.int: https://www.wipo.int/treaties/en/ip/berne/
Gervais, D. (2012). The TRIPS Agreement: Negotiating History. London, UK: Sweet &
Maxwell.
Cima, P. D. (2013). China’s Participation in the World Trade Organization: Trade in Goods,
Services, Intellectual Property Rights and Transparency Issues. ssrn papers.
Gold, J. F. (2014). An Integrated Model of Legal Transplantation: The Diffusion of
Intellectual Property Law in Developing Countries. Retrieved from International
Studies Quarterly, 58, 781–792: http://www.chaire-epi.ulaval.ca/sites/chaire-
epi.ulaval.ca/files/publications/morin_gold_2014.pdf
Chantal Blouin, J. H. (2007). Trade and Health. Canada: McGill-Queen's University Press.
Musungu, C. O. (n.d.). The use of flexibilities in TRIPS by developing countries: can they
promote access to medicines? Retrieved from World Health Oranization:
https://www.who.int/intellectualproperty/studies/TRIPS_flexibilities/en/
Morin, J. F. (2011). Pharmaceutical Patent Policy in Developing Countries : Learning from
the Canadian Experience”, in Intellectual Property, Pharmaceuticals and Public
Health (edited by. Shadlen, S. Guennif, A. Guzman and N. Lalitha). Intellectual
Property, Pharmaceuticals and Public Health.
Ficsor, M. (2002). The Law of Copyright and the Internet: The 1996 WIPO Treaties, their
Interpretation and Implementation. Oxford Univ. Press.
Secretary, T. W. (2016, February 10). Message to the Senate - The Beijing Treaty on
Audiovisual Performances. Retrieved from The White House Office of the Press
Secretary: https://obamawhitehouse.archives.gov/the-press-
office/2016/02/10/message-senate-beijing-treaty-audiovisual-performances
Commission, E. (n.d.). Implementation of the Marrakesh Treaty in EU law. Retrieved from
ec.europa.eu: https://ec.europa.eu/digital-single-market/en/implementation-
marrakesh-treaty-eu-law
Kutty, P. V. (n.d.). National experiences with the protection of expressions of
folklore/traditional cultural expressions. World Intellectual Property Organization
Study No. 2.
Danandjaja, J. (2002). Folklor Indonesia: Ilmu Gosip, Dongeng, Dan Lain-lain. Jakarta:
Pustaka Utama Grafiti.
Puri, K. (1999). Protection of Expressions of Indigenous Cultures in the Pacific. Copyright
Bulletin UNESCO, Vol. 23, No. 4.
WIPO. (2005). Intellectual Property and Traditional Cultural Expressions/Folklore - Booklet
n° 1. Retrieved from www.wipo.int:
https://www.wipo.int/edocs/pubdocs/en/tk/913/wipo_pub_913.pdf
Antons, C. (2009). Traditional Knowledge, Traditional Cultural Expressions and Intellectual
Property Law in the Asia-Pacific Region. Netherlands: Alphen aan den Rijn: Kluwer
Law International.
WIPO. (2001). Intellectual Property Needs and Expectations of Traditional Knowledge
Holders—WIPO Report on Fact-Finding Missions on Intellectual Property and
Traditional Knowledge (1998-1999). WIPO.
Posey, D. A. (1998). Can Cultural Rights Protect Traditional Cultural Knowledge and
Biodiversity?’’, Cultural Rights and Wrongs. Paris: UNESCO and London: Institute
of Art and Law.

191
Hamilton, R. W. (2007). Barkcloth Skirts from Southwestern Borneo’’ in Jane Puranananda,
The Secrets of Southeast Asian Textiles: Myth, Status and the Supernatural. Bangkok:
James H.W. Thompson Foundation/River Books.
Janke, T. (n.d.). Our Culture: Our Future, Report on Australian Indigenous Cultural and
Intellectual Property Rights. Australia: Michael Frankel and Company.
Tan, C. (2018). Regulation by copyright laws. In Regulating Content on Social Media:
Copyright, Terms of Service and Technological Features. London: UCL Press.
Verhulst, S. P. (2000). report on the international protection of expressions of folklore under
intellectual property law. Oxford, UK: Comparative Media Law and Policy
University of Oxford.
Kallinikou, D. (2005, October 21). Protection of traditional cultural expressions or
expressions of folklore. Paper presented for the conference "Can Oral History Make
Objects Speak?
Li, L. (2014). Intellectual Property Protection of Traditional Cultural Expressions, Folklore
in China. London, UK: Springer.
Janke, T. (2003). Case Studies On Intellectual Property And Traditional Cultural
Expressions. Minding Culture, World Intellectual Property Organization.
Hahn, A. v. (2004). Indigenous Heritage and Intellectual Property: Genetic Resources,
Traditional Knowledge, and Folklore. Kluwer Law International.
Geraint Howells, H. W. (2013). European Fair Trading Law: The Unfair Commercial
Practices Directive. Ashgate Publishing, Ltd.
WIPO. (1998-1999). Intellectual Property Needs And Expectations Of Traditional
Knowledge Holders. WIPO Report on Fact-finding Missions on Intellectual Property
and Traditional Knowledge (1998-1999).
Weatherall, K. (2001). Culture, Autonomy and Djulibinyamurr: Individual and Community
in the Construction of Rights to Traditional Designs. he Modern Law Review, 64(2),
215-242.
Bortolotto, C. (2007). From Objects To Processes: Unesco's "Intangible Cultural Heritage".
Journal of Museum Ethnography, No. 19, 21-33. .
Joubert, C. (1966-1967). Comments on The New Tunisian Law on Artistic And Literary
Ownership. Retrieved from www.Ia-rida.com: https://www.la-rida.com/article-rida-
en/1398?lang=en#download
Lewinski, S. V. (2003). Indigenous Heritage and Intellectual Property: Genetic Resources,
Traditional Knowledge, and Folklore. The Hague, Netherlands: Kluwer Law
International.
Fischer, S. F. (2005). Dick Whittington and Creativity: From Trade to Folklore, From
Folklore to Trade. 12 TEX. WESLEYAN L. REV. 5.
WIPO. (2003). Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore. WIPO/GRTKF/IC/5 Fifth Session.
Geneva, Switzerland: WIPO.
Torsen, M. (2008). Intellectual Property and Traditional Cultural Expressions: A Synopsis of
Current Issues. Intercultural Human Rights Law Review, Vol. 3.
Ficsor, D. M. (2005). WIPO National Seminar On Copyright, Related Rights, And Collective
Management. The Protection Of Traditional Cultural Expressions/Folklore.
Khartoum: WIPO.
Basu, S. (2007). Global Legislative Efforts on Protection for Traditional Knowledge and
Cultural Expressions. Conference materials University of Santa Clara School of Law.
Phillips, V. J. (2008). Indigenous Rights to Traditional Knowledge and Cultural Expressions:
Implementing the Millennium Development Goals. Intercultural Human Rights Law
Review.

192
WIPO. (2010). The Protection of Traditional Cultural Expressions/Expressions of Folklore:
Revised Objectives and Principles. WIPO/GRTKF/IC/17/4 Eleventh Session . Geneva,
Switzerland : WIPO.
Mandate, W. &. (2017). Assemblies of Member States of WIPO Fifty-Seventh Session.
Matters Concerning the Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore. WIPO.
Kutty, P. V. (2002). National Experiences With The Protection Of Expressions Of
Folklore/Traditional Cultural Expressions: India, Indonesia and the Philippines, .
World Intellectual Property Organization (WIPO).
Slotkin, S. D. (1996). Trademark Piracy in Latin America: A Case Study on Reebok
International Ltd. Loyola of Los Angeles International and Comparative Law Review.
Brown, M. F. (1998). Can Culture Be Copyrighted? Current Anthropology, vol. 39, no. 2,.
Greaves, T. (1994). Intellectual Property Rights for Indigenous Peoples: A Sourcebook.
Oklahoma City, OK: Society for Applied Anthropology.
Lian, Q. L. (2008). On Protection of Intangible Cultural Heritage in China from the
Intellectual Property Rights Perspective. MDPI Sustainability.
Zhang, L. (n.d.). Protecting Traditional Cultural Expressions From a Copyright Perspective.
Philips IP Academy - Fudan University Law School.
Li, L. (2016). The Saviour of Chinese traditional cultural expressions? : Analysis of the Draft
Regulations on Copyright Protection of Folk Literary and Artistic Works. Queen
Mary Journal of Intellectual Property, vol 6, no. 1, pp. 27—54.
UNESCO, I. C. (2017, December 12). Periodic reporting on the Convention for the
Safeguarding of the Intangible Cultural Heritage. Retrieved from
www.ich.unesco.org: https://ich.unesco.org/en/state/china-CN?info=periodic-
reporting
UNESCO. (n.d.). UNESCO World Anti Piracy Observatory. Retrieved from
www.unesco.org: http://www.unesco.org/culture/pdf/morocco_cp_en
Blakeney, M. (n.d.). Protecting The Knowledge And Cultural Expressions Of Aboriginal
Peoples. Retrieved from www.law.uwa.edu.au:
https://www.law.uwa.edu.au/__data/assets/pdf_file/0004/2795575/Protecting-the-
Knowledge-and-Cultural-Expressions-of-Aboriginal-Peoples.pdf
Terry Yumbulul v Reserve Bank of Australia; Aboriginal Artists Agency Limited and
Anthony Wallis [1991] FCA 332; 21 IPR 481 , No. D G26 of 1989 FED No. 448
(Federal Court of Australia July 25, 1991).
Comcare v Vanessa Mccallum [1994] FCA 975; (1994) 19 Aar 142 (1994) 49 FCR 199, No.
G539 of 1993 FED No 153/94 (Federal Court of Australia March 18, 1994).
John Bulun Bulun & Anor v R & T Textiles Pty Ltd (includes corrigendum) [1998] FCA
1082, 86 FCR 244; (1997) 157 ALR 193; (1998) 41 IPR 513; [1998] AIPC 37,654
(Federal Court of Australia September 3, 1998).
Roy, N. S. (2015). Indigenous Knowledge and Culture in Australia - The Case for Sui
Generis Legislation. Monash University Law Review 745.
Anderson, J. (2004). The Politics Of Indigenous Knowledge: Australia’s Proposed
Communal Moral Rights Bill. UNSWLawJl 34; (2004) 27(3) UNSW Law Journal
585.
Anderson, M. T. (2010, December). Intellectual Property And The Safeguarding Of
Traditional Cultures Legal Issues And Practical Options For Museums, Libraries
And Archives. Retrieved from www.sprep.org:
https://www.sprep.org/att/irc/ecopies/Pacific_region/697.pdf
Australia, C. o. (2002). Report of the Commonwealth by the Contemporary Visual Arts and
Craft Inquiry. Canberra: Commonwealth of Australia.

193
Anderson, J. (2004). Indigenous Communal Moral Rights The Utility of an Ineffective Law.
IndigLawB 15, 5(30) Indigenous Law Bulletin 8.
Sexton, D. C. (2017). Intellectual Property Forum. Journal of the Intellectual Property
Society of Australia and New Zealand.
Weatherall, K. G. (2007). Of Copyright Bureaucracies and Incoherence: Stepping Back from
Australia's Recent Copyright Reforms. Melbourne University Law Review, Vol. 31,
No. 2.
Sumpter, P. (2013). Intellectual Property Law: Principles In Practice. 2nd Edition . New
Zealand: CCH NZ.
Keith, R. H. (2020, December 5). On the Constitution of New Zealand: An Introduction to the
Foundations of the Current Form of Government. Retrieved from DPMC:
https://dpmc.govt.nz/our-business-units/cabinet-office/supporting-work-
cabinet/cabinet-manual/introduction
Tribunal, W. (2011, July 2). Ko Aotearoa Tēnei: A Report into Claims Concerning New
Zealand Law and Policy Affecting Māori Culture and Identity. Te Taumata Tuarua
volume 2. Retrieved from justice.govt.nz:
https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68356606/KoAotearoa
TeneiTT2Vol2W.pdf
deBeer, M. (2006). Protecting Echoes of the Past: Intellectual Property and Expressions of
Culture. 12 CANTER L. REV. 94, 102.
Lai, J. (2010). Maori Culture in the Modern World: Its Creation, Appropriation and Trade.
University of Luzern, Switzerland, i-call Working Paper No. 02.
Cong, L. L. (2010). NEW ZEALAND: MAORI CULTURE AND INTELLECTUAL
PROPERTY LAW 4. Law Library Of Cong.
Scott, E. G. (2013). Rights of Attribution for Ka Mate Haka. No. 8 J. INTELL. PROP. L. &
PRACTICE 200, 201.
McKeown, M. M. (2016). Censorship in the Guise of Authorship: Harmonizing Copyright
and the First Amendment. 15 CHI.-KENT J. INTELL. PROP. 1, 2.
Carpenter, M. M. (2004). Intellectual Property Law and Indigenous Peoples: Adopting
Copyright Law to the Needs of a Global Community. Yale Human Rights and
Development Journal, 7(1): 51-78.
(WIPO), W. I. (2003). Consolidated Analysis of the Legal Protection of Traditional Cultural
Expressions", Intergovernmental Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore. Fifth Session, WIPO/GRTKF/IC/5/3,
. Geneva: WIPO.
Suthersanen, G. D. (2004). The Innovation Dilemma: the Intellectual Property and the
Historical Legacy of Cumulative Creativity. Intellectual Property Quarterly.
Ginsburg, J. C. (2004). U.S. Intitiatives to Protect Works of Low Authorship. Oxford,
England: Oxford University Press.
Strathem, M. (1999). Property, Substance and Effect. UK: Athlone Press.
Finnegan, R. (1994). The Poetic of the Everyday: Their Pursuit in an African Village and an
English Town. 3 Folklore 105.
Ricketson, S. (1987). The Berne Convention for the Protection of Literary and Artistic
Works: 1886-1986. London.
Farley, C. ('1997). Protecting Folklore of Indigenous Peoples: Is Intellectual Property the
Answer? 30 Conn. L. Rev.
Posey, D. (1994). International Agreements and Intellectual Property Right Protection for
Indigenous Peoples.
Voegtli, N. (1997). Rethinking Derivative Rights. 63 Brooklyn L Rev 1213.

194
Riley, A. R. (2000). Recovering Collectivity: Group Rights to Intellectual Property in
Indigenous Communities. 18 Cardozo Arts & Ent LJ 175.
Boyle, J. (2003). The Second Enclosure Movement and the Construction ofthe Public
Domain. 66 Law & Contemp.Probls.
Samuelson, P. (2006). Enriching Discourse on Public Domains. Duke Law Journal, vol. 55,
111-169.
Rose, M. (2003). Nine Tenths of the Law: The English Copyright Debates and the Rhetoric
of the Public Domain. 66 Law & Contemp. Probs.
Litman, J. (1990). The Public Domain. 39 Emorory LJ. 965, 1010-11.
Long, D. (2006). Traditional Knowledge and the Fight for the Public Domain. 5 1. Marshall
Rev Intell. Prop.L.
Fisher, W. (2007). Two Thoughts About Traditional Knowledge. 70:2 Law & Contemp
Probs.
Henkin, L. (1979). How Nations Behave, 2nd ed. New York, NY: Columbia University Press.
Bradley, C. A. (1997). Territorial Intellectual Property Rights in an Age of Globalism. 37 Va
J Intl L.
Lewinski, S. (2007). Adequate protection of folklore a work in progress. Cheltenham, UK:
Edward Elgar Publishing Limited.
Lodra, I. N. (2017). Hak Kekayaan Inteletual Dalam Peradaban Masyarakat Bali. Unesa
University Press .
Kusumadara, A. (2011). Pemeliharaan Dan Pelestarian Pengetahuan Tradisional Dan
Ekspresi Budaya Tradisional Indonesia: Perlindungan Hak Kekayaan Intelektual Dan
Non-Hak Kekayaan Intelektual. 18 Ius Quia Iustum.
Nicholls, C. (2000). Aboriginal art: what is authorship? 25 Alternative Law Journal.
Department of Communications, I. T. (2002). Report of the Contemporary Visual Arts and
Crafts Inquiry. Australia.
Guggenheim, J. (1999). Renaming the Redskins (and the Florida State Seminoles?): The
Trademark Registration Decision and Alternative Remedies. 27 Florida State
University Law Review 287.
Wardany, N. P. (2009, September 3). Protests over presence of Pendet dance in Malaysia's
tourism ad continue. Retrieved from The Jakarta Post:
https://www.thejakartapost.com/news/2009/08/23/protests-over-presence-pendet-
dance-malaysia’s-tourism-ad-continue.html
Sardjono, A. (20017). Symphonizing Intellectual Property Laws in the Advancement of
Culture. Padjadjaran Jurnal Ilmu Hukum, 4(3), 437–453.
Hartono, S. (1991). Politik hukum menuju satu sistem hukum nasional. Bandung, ID: Penerbit
Alumni.
Algra, N. E. (1983). Mula Hukum, Cet. Pertama. Jakarta, ID: Bina Cipta.
Miranda Risang Ayu, H. A. (2014). Hukum Sumber Daya Genetik, Pengetahuan Tradisional
dan Ekspresi Budaya Tradisional di Indonesia. Bandung, ID: Alumni.
Merryman, J. H. (1986). Two Ways of Thinking About Cultural Property. The American
Journal of International Law, Vol. 80, No. 4. Oct.
Nasef, M. I. (2010, March 22). Tunjukan rasa nasionalisme, Lindungi Kebudayaan
Tradisional. Retrieved from scribd.com:
https://www.scribd.com/document/28726306/M-imam-Nasef-Tunjukkan-Rasa-
Nasionalisme-Lindungi-Kebudayaan-Tradisional
Hidayat, R. (2017, April 28). Ini Poin-Poin RUU Pemajuan Kebudayaan yang Baru
Disahkan Jadi UU. Retrieved from hukumonline.com:
https://www.hukumonline.com/berita/baca/lt5902f67269a3d/ini-poin-poin-ruu-
pemajuan-kebu-%20dayaan-yang-baru-disahkan-jadi-uu

195
Education, U. I. (2007). Digital Libraries in Education, Science, and Culture: Analytical
Survey. UNESCO Institute for Information Technologies in Education.
Jogja, H. (2017). Mengomersialkan Budaya Indonesia, Pihak Asing Dikenai Aturan
Pembagian Manfaat. Retrieved from harianjogja.com:
http://www.harianjogja.com/baca/2017/06/24/mengomersialkan-budaya-indone- sia-
pihak-asing-dikenai-aturan-pembagian-manfaat-828171
News, B. (2008, June 30). Traditional Balinese Motifs of Silver Jewelry Patented by Foreign
Company. Retrieved from http:/ /balinewsonline.com/bali-
news/2008/06/30/traditional-balinese-models-of-silver-jewelry-patented-by-foreign-
com- pany/
Post, T. J. (2008, July 9). Expert defends local artisan in copyright violation case This article
was published in thejakartapost.com with the title "Expert defends local artisan in
copyright violation case". Click to read:
https://www.thejakartapost.com/news/2008/07/09/expert-defe. Retrieved from
thejakartapost.com: https://www.thejakartapost.com/news/2008/07/09/expert-
defends-local-artisan-copyright-violation-case.html
Jaszi, P. (2010). Traditional Culture: A Step Forward for Protection in Indonesia. Washington
College of Law Research Paper No. 2010-16, American University Washington
College of Law.
Farley, C. H. (1997). Protecting Folklore of Indigenous Peoples: Is Intellectual Property the
Answer? Conn. L. Rev, Vol. 30.
Lutviansori, A. (2010). Hak Cipta dan Perlindungan Folkor Di Indonesia. Yogyakarta, ID:
Graha Ilmu.
Priapantja, C. C. (2003). Hak Kekayaan Intelektual: Tantangan Masa Depan. Jakarta, ID:
Badan Penerbit Fakultas Hukum UI.
Clements, R. (1991). Misconceptions of Culture: Native Peoples and Cultural Property Under
Canadian Law. Toronto Faculty of Law Review, Vol. 49 No. 1.
Rahardjo, S. (2003). Sisi-sisi Lain dari Hukum di Indonesia. Jakarta,ID: Penerbit Buku
Kompas.
Jaszi, P. (2009). Kebudayaan Tradisional: Suatu Langkah Maju untuk Perlindungan di
Indonesia, Laporan Penelitian. Jakarta, ID: LSPP.
Lewinski, S. v. (2003). Symposium on Traditional Knowledge, Intellectual Property and
Indigenous Culture: The Protection of Folklore. 11 CARDOZO J. INT’L COMP. L.
747.
Online, H. (2009, September 16). Akademisi Kritik RUU Pengetahuan Tradisional dan
Ekspresi Budaya Tradisional. Retrieved from hukumonline.com:
http://www.hukumonline.com/berita/baca/hol23152/akademisi-kritik-ruu-
pengetahuan- tradisional-dan-ekspresi-budaya-tradisional
Kusumadara, A. (2002). Analysis of the Failure of the Implementation of Intellectual
Property Laws in Indonesia . Disertasi, Faculty of Law, University of Sydney.
Online, H. (2012, October 11). Rumitnya Pembuktian Hak Cipta Kewajiban mendaftarkan
hak cipta berpotensi membebankan. Retrieved from hukumonline.com:
https://www.hukumonline.com/berita/baca/lt50763f9cce9b5/rumitnya-pembuktian-
hak-cipta/
Farid, H. (2017). Tradisi Pencatatan Kita Lemah. Retrieved from Tempo:
https://koran.tempo.co/kont- en/2017/07/01/418582/Hilmar-Farid:-Tradisi-
Pencatatan-Kita-Lemah
Kusumadara, A. (2016). Pemeliharaan dan Pelestarian Pengetahuan Tradisional dan Ekspresi
Budaya Tradisional Indonesia: Perlindungan Hak Kekayaan Intelektual dan non-Hak
Kekayaan Intelektual. Jurnal Hukum IUS QUIA IUSTUM, Vol.18 No.1.

196
Sardjono, A. (2006). Hak Kekayaan Intelektual dan Pengetahuan Tradisional. PT. Alumni.
Jaszi, P. (2010). Traditional Culture: A Step Forward for Protection in Indonesia. Washington
College of Law Research Paper No. 2010-16, American University Washington
College of Law.
Gruber, S. (2008, August). Protecting China's Cultural Heritage Sites in Times of Rapid
Change: Current Developments, Practice and Law. Sydney Law School. Legal Studies
Research Paper, No. 08/93.
Council, G. O. (2004, February 15). Opinions on Strengthening the Work for the
Administration on Protection of World Cultural Heritages of China. Retrieved from
lawinfochina.com:
http://www.lawinfochina.com/display.aspx?lib=law&id=3459&CGid=
Maags, C. (2018). Disseminating the policy narrative of ‘Heritage under threat’ in China.
International Journal of Cultural Policy, Volume 26, 2020 - Issue 3.
China, L. I. (2005, December 22). Notice of the State Council on Strengthening Protection of
Cultural Heritages. Retrieved from lawinfochina.com:
http://www.lawinfochina.com/display.aspx?lib=law&id=4882&CGid=
China, L. I. (2005, March 26). Opinions of the General Office of the State Council on
Strengthening the Protection of Intangible Cultural Heritage of Our Country.
Retrieved from lawinfochina.com:
http://www.lawinfochina.com/display.aspx?lib=law&id=4178&CGid=
China, L. I. (2006, November 2). Interim Measures for the Protection and Administration of
National Intangible Cultural Heritages. Retrieved from lawinfochina.com:
http://www.lawinfochina.com/display.aspx?lib=law&id=5940&CGid=
Li, L. (2016). The Saviour of Chinese traditional cultural expressions? : Analysis of the Draft
Regulations on Copyright Protection of Folk Literary and Artistic Works. ueen Mary
Journal of Intellectual Property, vol 6, no. 1, pp. 27—54.
Madiyant, A. S. (2013). Internalisasi Nilai Dan Diplomasi Budaya Kementrian Pendidikan
Dan Kebudayaan. Thesis, Respitory Gadjah Mada University.
Culture, M. o. (2016, April 14). Balai Pelestarian Nilai Budaya. Retrieved from
kebudayaan.kemdikbud.go.id: https://kebudayaan.kemdikbud.go.id/bpnb/
Unesco. (2009). Education and training in Indonesian Batik intangible cultural heritage in
Pekalongan, Indonesia. intergovernmental committee for the Safeguarding of the
intangiBle cultural heritage.
Bannerman, S. (2015). The World Intellectual Property Organization and Traditional
Knowledge, in Indigenous Intellectual Property: A Handbook of Contemporary
Research, Research Handbooks in Intellectual Property series. Cheltenham, UK:
Edward Elgar Publishing.
Mara, K. (2010, 5 8). Intellectual Property Watch. Retrieved from WIPO Traditional
Knowledge Committee Agrees To Intensify Text-Based Negotiations:
https://www.ip-watch.org/2010/05/08/wipo-traditional-knowledge-committee-agrees-
to-intensify-text-based-negotiations/
Mara, A. (2009, 10 22). Intellectual Property Watch. Retrieved from Perpetual Protection Of
Traditional Knowledge “Not On Table” At WIPO: https://www.ip-
watch.org/2009/10/22/perpetual-protection-of-traditional-knowledge-“not-on-table”-
at-wipo/
Sudarmanto. (2012). KI dan HKI Serta Implementasinya Bagi Indonesia. Jakarta, ID: PT
Elex Media Komputindo.
Ying, K. C. (2005). Protection of Expressions of Folklore/Traditional Cultural Expressions:
To What Extent is Copyright Law the Solution?”. Journal of Malaysian and
Comparative Law, Volume 2.

197
Ubbe, A. (2011). Pengkajian Hukum tentang Perlindungan Hukum Kebudayaan Daerah.
Badan Pembidaan Hukum Nasional Kementrian Hukum dan Hak Asasi Manusia
Republik Indonesia.
Sudrajat. (2010). Hak Kekayaan Intelektual ; Memahami Prinsip Dasar, Cakupan, dan
Undang-undang yang berlaku. Bandung, ID: Oase Media.

198