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

Abstract

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