Intellectual property rights and traditional cultures: A report from the field

Ignatius Haryanto Jakarta

In the last month The Jakarta Post published two interesting articles related to the issue of Intellectual Property Rights (IPR). First was an article by Mohamad Mova Al'Afghani, a Jakarta-based lawyer and lecturer on Ulema edict on IPR could be misleading (the Post August 9, 2005), and the second was Joseph Stiglitz's article on Intellectual property rights and wrongs, to accommodate whom? (published under Project Syndicate, and republished by the Post on Aug. 18, 2005)

The following article looks at the broader issue of IPR based on the findings of a field trip made to observe how traditional cultures cope with the IPR issue, and whether IPR is healthy or unhealthy for the promotion of traditional cultures.

A group of 10 Indonesian and international scholars, from the U.S., UK, India and Australia, made a two-week trip to Yogyakarta, Solo and Bali, organized by the Social Science Research Bureau (SSRC) and supported by The Ford Foundation. During our trip we met with batik makers in Solo, discussed the IPR issue with some lecturers at Sekolah Tinggi Seni Indonesia (STSI -- Indonesian School of the Arts), Surakarta branch, some Javanese puppet masters and dance creators in Ubud, Bali.

Al'Afghani and Stiglitz pointed out that "Intellectual Property is a concept developed in the West", and "Intellectual Property is important, but the appropriate intellectual-property regime for a developing country is different from that of an advanced industrial country".

Most of the available literature agrees that IPR is a concept born in the West, and it does not really fit the rest of the world.

The basic idea of IPR is good -- to provide compensation to creators, or innovators to foster further creativity. Although the claim sounds good, we have to check how it really operates in the field, in the globalized world, in developing countries, and in the situation where "asymmetric information" -- as Stiglitz opined -- exists.

In the long history of copyright law in UK or in the U.S., one major point is the longer period for a creator, or innovator, to hold a monopoly on the creation from the "public domain". One assumption behind the IPR law is the creator and innovator is granted a period of time that he/she can benefit from his/her creation(s), by receiving royalties, which are deemed the economic right of the creators.

Another right implemented in the IPR law is the moral right, which points to the source of the creation. Citing Joseph Stiglitz as the one who had the idea of "asymmetric information" in a publication, from the moral right point view, is enough. Stiglitz himself says in his last article on the subject, "I am pleased when someone uses my ideas on asymmetric information -- though I do appreciate them giving me some credit."

The IPR regime comes from the individualistic and liberal philosophical point of view, which differs from the belief held by people in the developing countries. Many of our informants during our trip shared their concern for the matter, and for them one of the ultimate virtues that people should pursue is a culture of sharing. Our informants, who practice traditional culture, believe that traditional culture is given from generation to generation in order to share their own values

Preserving traditional culture means that people in the community still practice the culture -- in this sense; prayers, dance, clothes, medicine, folklore, etc. -- and people outside the community are allowed to practice it as long as they know the value behind those rituals. If the outsiders want to practice the same form of traditional culture elsewhere, it is not prohibited -- except for sacred practices -- in which sometimes there is a commercial interest involved.

To them, showing respect for their culture is more important than thinking about the economic compensation for it. Although this view is not representative of all the traditional practitioners, there is a strong belief that sharing is one value that everyone should note, and during our investigation, we never heard of any concerns that the outsiders would use the culture inappropriately or downgrade its value.

In this era of globalization, many types of traditional knowledge and culture are at the crossroads; on the one side they are pushed by global values, global forces, and at the same time they are striving to preserve their rich traditional cultures. No one can hide from the global flow of information, the global force of using traditional cultures by the cultural and media industries as a commodity.

This conflicting situation exists although some groups have tried to provide a solution, but up to now, none have been able to suggest a proposal that satisfies the many stakeholders in this issue. As Stiglitz and Al'Afgani put it, the World Intellectual Property Organization (WIPO) has tried to discuss this issue further, and WIPO has come to the conclusion that the IPR regime should look for more development-oriented programs. And what should they be? This is still a big question, with no sufficient answers until now.

We should sit together and think again about the pros and cons of the IPR regime, how the regime really affects us, and how we can cope with this regime in issues like access to knowledge for developing countries, a healthy development of traditional culture, promoting the richness of Indonesian culture in a globalized world, a healthier situation in the drug businesses, without avoiding social modalities that we already have. In a culture of sharing, preserving traditional culture, the creators -- especially those who practice traditional culture -- never think of economic compensation in the first place, since traditional cultures produce in line with community beliefs and community engagement with others.

The writer is a researcher in LSPP, Jakarta, in 2004 attending a summer school on Intellectual Property at Central European University, Budapest. He can be reached at ignh@yahoo.com