by Jennie S. Bev
“Patenting” Indonesia’s cultural heritage is tempting, but it just a widespread misconception. The so-called “public domain” of Internet is a myth too, as creative common rights based on creative common licenses also have limitations. Myths and misconceptions surrounding intellectual property (IP) rights must be clarified if Indonesia is to be considered equally advanced in terms of legal literacy in this highly borderless world.
Now, first things first. What are intellectual property rights? They are exclusive rights belonging to the creators or owners of products of the minds, which immediately materialize at the moment of creation. Thus, registering them is not required, but oftentimes necessary for the purpose of producing legal evidence of time of creation.
A good analogy is just like the conception of a fetus, which is automatically a living being that inherits DNA from his or her parents. When an artist or a scientist creates or discovers something, it automatically bears the “intellectual DNA” of the creator. In a nutshell, whenever an individual or any legal entity creates artistic and scientific products, be they are tangible or intangible, and for personal or business purposes, they are immediately protected by these rights.
Intellectual property rights render special monopoly for a limited time over usage and corresponding intangible benefits. The underlying philosophy is respecting creation and human knowledge, as well as fostering creative and explorative interests. Thus, do these rights last for eternity? Of course not.
In general, intellectual property rights include copyrights, trademarks, patents, industrial design rights, and trade secrets. Indonesians confuse “copyrights” with “patents.” We have heard and read about “let’s patent Indonesian cultural heritage so Malaysia wouldn’t be able to claim them.” This statement is a fallacy on two counts.
First, “patent” doesn’t apply to artistic ideas and forms. A patent is an exclusive right granted to inventor of scientific processes, instruments, or any improvements of them.
Since Indonesia has ratified Berne Convention 1886 in 1997, thus the definition of copyrights also applies in Indonesia. Cultural heritage, such as dances, songs, poetries, batik motives, musical instruments, and paintings belong to “copyrights” category.
Second, even with understanding that artistic endeavors belong to “copyrights” realm instead of “patents,” most likely Indonesian cultural heritage are centuries old and they have passed creator’s “exclusive”rights.
Limitations over the term of copyrights in Indonesia is regulated by Indonesian Copyrights Law article 14. For copyrights, the limit is 50 years after the death of the creator. In terms of “unknown creator,” of artistic and cultural creations, according to article 10, the state is the owner. Thus, even though sometimes we find certain ancient artistic and cultural products are registered under an individual’s name; such registration is nullified by law.
Now let’s visit the Internet realm. Is it true that anything posted on the Web is “common property” or “public domain”? The answer is an absolute no. We don’t own those still and moving images and texts, unless it is clearly stated that such information or intangible products are indeed public domain.
Chris Anderson in his impressive latest book titled Free: The Future of Business posited that Internet economy is “free economy.” It is true to certain extend that providing free Internet-based services is a part of doing business nowadays, but it has limitations too. Most likely, the free-of-charge part is the distribution and usage, not authorship or ownership.
Creative commons licenses were founded by Creative Commons organization in 2001 due to urging needs in advancing Internet economy. These licenses regulate copyrights by releasing certain parts of copyrights for other creators who intend to develop based upon their creations. They are basically “usage licenses,” not ownership transfer. In many open source applications, it is almost always that the creator must be credited in any developments or derivatives developed.
Intellectual property rights issues are simple to understand. The key is respecting the originator of a creation. Because, how we respect the fruits of minds today is key to the future.
The Jakarta Post, October 4, 2009