RCEP, Decentralization, and Intellectual Property Rights:

Indonesia’s Conundrum in Regional Integration

Chin-Ming LIN

Faculty Emeritus

Tamkang University

113922@mail.tku.edu.tw

Nusantara: An International Journal of Humanities and Social Sciences, 3(1), June 2021, pp. 49-82.

Various binding provisions in Regional Comprehensive Economic Partnership (RCEP), especially the intellectual property rights (IPR) regime, are designed to go beyond the WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. And the legal system for indigenous Indonesians was adat, an extensive system of Indonesian customary norms, which does not recognize IPR protections. Under unwritten adat law, individual knowledge is regarded as public property, and its main function is to serve public benefits. Meaningful IP policy reform was taken by Indonesian government only after Indonesia became a member of the WTO and thus obliged to implement the TRIPS agreement. However, recently leaked composite draft of the RCEP IP chapter showed the Japanese and Korean proposals remained, which were seeking to elevate IP standard to the levels akin to those in the Trans-Pacific Partnership (TPP), now renaming CPTPP. This will definitely cause severe conundrum to Indonesia, especially in its local areas which, because of its decentralization policies, are predominantly adhering to adat rather than governmental IP regulations.

This paper will examine, from the perspective of distinction between public and private properties, the extent to which Indonesia’s legal framework is compatible with the RCEP provisions. And what is even more crucial is Indonesia’s commitment and capacity, especially in view of its decentralization reforms, to provide social safety nets in protecting traditional knowledge and traditional cultural expressions. This, together with its desire to develop domestic pharmaceutical and vaccine sector, presents a severe challenge for Indonesia as it is keen to engage in regional economic integration.

In the following, we will first introduce some of the development in international IPR protection, especial from WIPO conventions to WTO’s TRIPS Agreement, which is now further extended in international or transnational trade negotiations such as the RCEP. Next, the argument for IPR protection in and through foreign investment in industrial production, especially in less-developed countries, is discussed, which is then followed by an overview of Indonesia’s responses to international agreements on IPR protection. In the fourth section we further explore issues related to indigenous people’s rights, with elaboration on various international arrangements in such areas as natural resources, health systems and traditional culture as well as reclaiming for social justice by indigenous peoples in Indonesia. And then in the fifth section, the prospect of the devolution of power to local institutions, along with their interactions with national government which is complicating the situation, is explored thus results in some implications for political and economic reforms as well as strategic participation in international trade agreement. A brief concluding remark is in the last section.

International IPR Protection: From TRIPS to RCEP

Indonesia is one of the countries that have joined the WTO TRIPS agreement.[1] From the history of TRIPS, India and several other developing countries have been eager to establish a system different from the current system, which is dominated by the main demanders (the United States, the European Community, Japan and Switzerland). As the negotiations progressed, and after the U.S. Trade Representative has achieved more and more liberal success in persuading U.S. trading partners to accept the "effective and adequate" standards of intellectual property rights (especially in the pharmaceutical field),[2] greater or extensive development has become the demand of its industry. Therefore, since the initial request for the introduction of product patents in all technical fields, the United States raised the stakes in 1991, and has required "pipeline protection" since the Uruguay Round was first launched in 1986. This means that all pharmaceutical inventions filed for patent applications in the United States and other jurisdictions since 1986 will be protected in order to obtain a balance of patent terms in the jurisdictions of all negotiating parties.

Until the end of the negotiations in 1993, the demand for pipeline protection was an important one.[3] India and other textile exporting countries have been eagerly hoping for equality between the TRIPS Agreement and the "Textile and Apparel Agreement", and demanded a ten-year clean transition period without pipeline protection. However, the United States and other countries believe that this will delay the economic impact of the TRIPS Agreement on the pharmaceutical industry for 20 years, which is unacceptable.[4] Why are the United States and other developed countries so persistent in pursuing the goals of the TRIPS negotiations? Maybe we can review what happened before the TRIPS Agreement.

Prior to the TRIPS Agreement, the protection and enforcement of multilateral disciplines of intellectual property rights was the subject of international treaties, most of which were negotiated and managed under the auspices of the World Intellectual Property Organization (WIPO). The text of the main treaties can be traced back to the 19th century, the "Paris Convention for the Protection of Industrial Property" ("Paris Convention") and the "Berne Convention of Literary and Artistic Works" ("Berne Convention"). As of 1986, some parties to the General Agreement on Tariffs and Trade (GATT) have not yet joined these treaties and other intellectual property treaties, nor have they joined earlier versions of the treaty. For example, the United States did not become a party to the Berne Convention until March 1989. Chile, Colombia, India and several other contracting states are not parties to the Paris Convention, while Canada adopted Articles 1-12 of the 1938 edition.[5] On the contrary, Indonesia adopted the 1967 Stockholm Act in 1979, with the exception of Articles 1-12.[6]

These and other international intellectual property treaties are partly based on national treatment, and in some cases also allow parties to request reciprocity as a condition of specific rights. The scope and terms of protection for new technologies such as computer programs and biotechnology have not yet been determined. During the 1970s and 1980s, governments saw the development of this new technology and a surge in international trade, including counterfeiting and pirated goods (counterfeit goods) trade. Intellectual property owners face enormous difficulties in enforcing their intellectual property rights, especially in obtaining remedies to prevent infringement. During the Tokyo Round (1974-79), the United States and some other parties to the GATT began negotiations on the Agreement on Measures to Discourage the Importation of Counterfeit Goods ("Anti-Counterfeiting Code"), which was later included in the TRIPS Agreement. When the ministers met in Punta del Esta to decide to start the multilateral round of negotiations of the Uruguay Round, the actions taken on the Code and the broader settlement of intellectual property issues still faced resistance from some delegations.

The mandate of the TRIPS negotiation is one of the final contents of the "Punta del Esta Ministerial Declaration" to be resolved. The TRIPS negotiation task consists of three paragraphs, including the instruction that "negotiations shall aim to clarify GATT provisions and elaborate, as appropriate, new rules and disciplines." The purpose of the negotiations is to formulate a multilateral framework of principles, rules and disciplines concerning the trade of counterfeit goods, taking into account the work already carried out in the GATT. Finally, the negotiations should not harm other WIPO “complementary initiatives”.[7] Regarding the final unbiased authorization, the negotiating group of the TRIPS Agreement will work on the international trade of counterfeit goods as a separate agenda item until the end of the negotiations, which has resulted in duplicate and often overlapping drafts on this issue.

The negotiations on the patent complex involved, other than general aspects of patent protection, issues related to the unavailability of product patents for pharmaceuticals and agricultural chemicals in some countries and protecting otherwise undisclosed data that must be submitted to obtain government approval for marketing pharmaceuticals and agricultural chemicals. Proponents of addressing the data protection issues, including the United States, were concerned with the diminished “effective” period of patents as the negotiations prolonged far out with no sign of conclusion. Therefore, their strategy was to secure some benefit under the TRIPS Agreement in the short term. They claimed that, unlike other IPRs, obtaining a patent for a pharmaceutical took several years with additional years for marketing approval and, therefore, required large amount of time and resources.

Despite the complexity involved in negotiating international patents, especially from the perspective of developed countries, we still cannot ignore the industrial development requirements of less developed countries. One of the functions of patents is to help small potato with very few resources to protect its position from large, well-funded companies. It can be argued that the domestic patent system may protect local inventors from being taken over by their ideas without his/her permission and without proper compensation from multinational companies operating in the country. Moreover, acceptance of the domestic patent system does not necessarily require a country to allow foreign patents for inventions that are mainly patented and used abroad. The protection of the rights of foreigners through priority clauses[8] and the elimination of discrimination against them through national treatment clauses[9] are the core content of the Paris Convention. However, for non-industrial countries, joining the Convention and the Agreement on TRIPS and accepting their provisions regarding invention patents that have been patented abroad and are mainly working abroad may be costly.

Some texts leaked in the RCEP negotiations indicate that the IP clauses proposed by Japan and South Korea are called TRIPS-plus because they far exceed the obligations under TRIPS. The proposed regulations aim to extend the patent period of pharmaceutical companies to more than the usual 20 years, and also require data exclusivity to restrict competition. RCEP also treats intellectual property rights as investments by patent-holding companies, allowing private investment disputes (ISDS) against the host country when intellectual property rights are threatened.[10] Since all developing countries in RCEP negotiations are now implementing TRIPS and granting patents for 20 years of medicines, patients and governments plan to directly feel the expected growth of patented medicines brought about by RCEP. For example, in 2015, about 2.1 million people in the Asia-Pacific region were infected with HIV and could use antiretroviral therapy, accounting for about one-third of people living with HIV in the region. A 2014 WHO report found that the prices of HIV medicines in middle-income countries vary widely, affected by their patent status and licensing transactions. According to information provided by the Positive Malaysian Treatment Access and Advocacy Group (MTAAG), the cost of the second-line combination of tenofovir + emtricitabine + lopinavir/ritonavir in Malaysia is US$3,204 per year, and the price of generic drugs may be as low as US$207 per year.[11]

In response to the high prices of patented medicines, several developing countries in the Asia-Pacific region are using the flexibility of TRIPS to ensure access to affordable generic medicines. In 2001, the "Doha Declaration on Trade-Related Intellectual Property Rights and Public Health" reiterated the right of all WTO members to use these flexibilities, which stated: "the [TRIPS] agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all”.[12] Among the RCEP negotiating countries, Malaysia (2003), Indonesia (2004, 2007, and 2012), Thailand (2006 and 2008), and India (2012) have issued compulsory licenses to ensure against HIV, heart disease and cancer drugs compete for generic drugs. India and the Philippines have included strict patentability standards in their laws, including the prohibition of evergreening (patent holders extend the drug monopoly by applying continuous and overlapping patents for new forms and new uses of old medicines). The patent laws of most RCEP developing countries also include several other flexibilities of TRIPS, such as parallel imports, early working, research and experimental exceptions.[13]

IPR Protection and Less-Developed Countries

Of course, we cannot deny the benefits of technology transfer through foreign patents. Since most of the technologies needed for industrial development have been patented, and these patents are owned by commercial companies in industrialized countries, the technical disclosures included in the patent grant that are public knowledge are not enough to apply them all without the know-how and technical assistance of the patentee. Therefore, patents are a necessary condition for technology transfer, although not sufficient. Moreover, in addition to granting patents to local companies and providing the required knowledge, foreign patents can also promote foreign investment, as foreign investors tend to enter more “modern" industries where patented technology may be available. Foreign companies will be reluctant to establish manufacturing plants using patented technology in countries/regions where patent protection is not accepted, especially when establishing joint ventures with local companies.

There are several counter-arguments. It was pointed out that patents registered by foreigners in developing countries rarely “work” in these countries; technology sales contracts and patent licensing contracts are separate and different, so there is no reason to assume that the former will be concluded without the latter. The transfer is done through a contract related to know-how. The know-how is non-patented technology. If the technology is secret to the company, then the patent is redundant at least for now. On the other hand, if it is not secret, competitors will be willing to sell it, and if the use of the patent does not restrict the use of potential buyers, they will be able to sell it. Therefore, it is clear that the main effect of granting foreign patents is to "limit" technology transfer by reducing competition among foreign technology sellers.[14]

As for foreign investment, in this case, when the export market is threatened by a competitor’s producer or government to force it to carry out local production, it is mainly an investment made to defend and protect the export market. The prospect of obtaining patents and the company’s maintaining its market position is irrelevant. The reason why companies require patents and obtain patents is largely because patents enable them to impose legal restrictions on the operations of local subsidiaries, and to more easily impose various restrictions, or simply protect their export markets by preventing competitors from participating in production. In this way, investment in the country may actually be restricted by the operation of the patent system.[15] As for the protection of the market, the multinational companies that have the most foreign patents so far will not produce their patented products in every country/region where the patent is granted. The main purpose of international patents is to protect the market and licensing rights. Therefore, it can be said that foreign patents are mainly the exclusive import licenses of foreign producers.

There is no doubt that patents can indeed enable patentees and their licensees to charge higher prices in the protected market than those charged by other foreign or domestic competitors. This is the main concern of many host countries, especially in the pharmaceutical industry, where high prices may hinder their policy goals of ensuring national health or improving the environment. Of course, in addition to patents, one can also think of many other considerations, which may produce similar results, especially in medicine, such as brand-name protection, transfer pricing to subsidiaries which would continue regardless of patents, subsidized or loss-making exports which would not be available on a continuing basis, etc.[16]

However, it is precisely because patents can be and are used to restrict imported products and other potential producers, many patent laws have adopted compulsory working provisions and penalties are severe. For non-working in international patent conventions and other international agreements, patents are still allowed to be revoked. Compulsory license refers to the authorization granted by the competent national authority (minister, national patent office, etc.) to use and utilize patented products or processes by unauthorized persons. In his report on the Indian Patent Law, Ayyangar strongly recommends the inclusion of non-working revoking provisions, because, as he said, if the foreign patent holder is willing, he/she will be more willing to cooperate with local companies to produce the patent if he/she knows that his/her patent may be revoked for non-working. As long as his/her expertise is needed in production, the patent holder can ignore the mandatory licensing regulations. Therefore, even if the license is obtained, no one can use the patent without his/her help. Thus, he/she may not want to revoke the patent, which will open the market to imports from other producers. Therefore, he/she may prefer to work under a joint venture. Otherwise, the host country will benefit from cheap imported goods.[17]

Overview of Indonesia’s Situation on IPRs

Prior to the signing of the WTO’s Agreement on TRIPS, intellectual property protection was not a concept familiar to Indonesian law because it contradicted Indonesian traditions and norms. This does not mean that Indonesia is a latecomer in intellectual property (IP) legislation. As early as 1844, Dutch colonial rulers had enacted relevant laws, but the law only applied to Dutch people, not local people. During the colonial period, the legal system of Indonesian indigenous peoples was adat, which is a broad system of Indonesian customary norms, which did not recognize intellectual property protection. According to the unwritten adat law, since knowledge is considered public property serving the public interest, personal ownership of intellectual property or inventions is not recognized (see below). As soon as Indonesia joined the WTO, it began to implement IP policy reforms to fulfill its obligations under the TRIPS Agreement.

However, after more than ten years of IP policy reforms, the general acceptance of IP protection in Indonesian society does not seem to have changed much. From the WIPO statistics database from 2008 to 2017, it can be seen that out of a total of 9,352 patent applications in Indonesia, more than 75% were filed by non-residents.[18] In addition, compared with other RCEP member states, Indonesia performed relatively poorly in intellectual property protection based on the property rights index in 2018. Indonesia has an average score of 5.3, behind New Zealand (8.6), Singapore (8.4), Australia (8.3), Japan (8.2), Malaysia (6.49), South Korea (6.47), China (5.9), India (5.6), and only slightly better than Thailand (5.3), the Philippines (5.2) and Vietnam (5.07). Moreover, from 2010 to 2019, Indonesia, along with India and China, has been included in the USTR priority watch list, which shows that piracy and counterfeiting of dangerous products are very common in Indonesia.[19]

However, it is undeniable that Indonesia has made major amendments to its IP-related laws in recent years to align it with regional and international intellectual property standards. In 2000, laws on the protection of new plant varieties (Law No. 29), trade secrets (Law No. 30), industrial designs (Law No. 31), and layout designs of integrated circuits (Law No. 32) were enacted and promulgated. In 2001, the new Trademark Law (Law No. 15) and Patent Law (Law No. 14) were promulgated, and the former was repealed and replaced by Law No. 20 in Trademark and Geographic Indications, while the latter was repealed and replaced by Law No. 13 in 2016. In 2002, the new Copyright Law (Law No. 19) was promulgated which was later replaced by Law No. 28. In 2005-2007, with the support of a development project called ECAP II. Indonesia's legal IP protection framework was further improved by the new customs act and patent attorney profession regulations. An implementing regulation of the Trademark Law was also passed, introducing special protection and registration of geographical indications. In addition, Indonesia has begun to enact a law to protect genetic resources, traditional knowledge and expressions of folklore. The Indonesian government is currently negotiating with all stakeholders to review all its intellectual property laws. The "Explanatory Memoranda" set out the provisions in the legislation and played an important role in Indonesia because the courts can use them to clarify issues regarding legal language and integrate details that are missing in the legislation.[20]

However, the registration, protection and enforcement of intellectual property rights are still areas of concern for foreign investors, especially in the high-tech sector. The obligation to formulate appropriate intellectual property protection strategies is not only essential for Indonesia's long-term integration into the global trading system, including RCEP, but also for reducing investors’ concerns about infringement of IP rights. Although Indonesia has passed many laws to protect IP rights, in many cases they have not been effectively implemented. For example, as mentioned above, the level of piracy in Indonesia is still the highest in the world. In addition, the uncertainty of the outcome of court litigation and corruption have been identified as the main IRP-related issues facing foreign investors.

In Indonesia, trademark owners usually charge huge legal fees when seeking to take back any trademarks registered by local “squatters”. A trademark application should be published first, and then the Director General of Intellectual Property (DGIP) will make any final decisions regarding its registration. The trademark owner then has the opportunity to challenge any application before making a final decision. However, in many cases, such objections fail to prove the unsuccessful "malicious" application that was clearly inspired by a well-known trademark. Most of these squatter registrations are not in actual use by registrants (in most cases local owners), just to expect that the real owner will pay them large sums in the future in order to have these registrations taken in possession.[21]

All these raise an important question: Does the general Indonesian population understand the concept of intellectual property? When asked what is intellectual property, people usually ask what is it? To the majority of people, intellectual property is a foreign concept, and they don't seem to understand. In addition, even some legal scholars may be unfamiliar with intellectual property, because intellectual property topics are usually not included in legal courses. On the other hand, from the government's point of view, intellectual property is regarded as a single functional concept, especially the institutions responsible for drafting laws or the bureaucracy enforcing regulations. The patents, trademarks, copyrights, etc. known to all government officials must be protected within the government of the Republic of Indonesia because they are in the laws.

Actually, we can further argue that general people in Indonesia could not appreciate the distinction between public and private properties. The meaning of property can be seen best by considering the many values associated with property. The values include income, goods and services, consumption and savings. They also include well-being such as health, safety and security, enlightenment, and skill or proficiency. They could even include power, especially the ability to influence the decisions of others, status and prestige, goodness and stewardship, and love and friendship. Therefore, conflict in these various values leads to change in the property system. Thus, it is risky to explain property problems in terms of only a few of the values, such as goods or services against other values of property.[22] Property distributes claims for the benefits and liabilities for society. It also allocates access to resources. In a private property system, individuals, and various groups acting as individuals, all claim on the benefits from property. States express their interests through a set of laws which define the role of the state as an arbiter in conflicts between individuals as well as a participant in the game. Through laws, an individual could be protected against the power of the state or transferring wealth from the haves to the have nots. The state’s role should be considered not only as a protector of individuals but also a protector of collective well-being against the economic behavior of the individual.

As a distributer of benefits and liabilities and an allocator of resources, property is the basis of power and control. If the individual exercises power and control over use of property, he/she has property rights. Conversely, if the state and, at more informal levels, the community exercises power and control over use, public rights are expressed. Thus, during colonial period, the Dutch government was granting property rights, specifically the IPRs, only to Dutch citizens for them to exercise power and control, but not to Indonesian people because the local community could recognize only public property rights. However, in modern times, the sovereign Indonesian government has to establish laws related to IPRs applicable to both foreign and domestic people, but can it convince local people to accept and abide by them?

Intellectual property rights can be seen from various aspects, and its meaning is different. For business people, intellectual property rights is a tool to achieve various purposes, mainly to obtain the highest profit. For high-tech industries, intellectual property rights are all related to patents, helping to maintain the exclusivity of the technology developed by the company in the application. For entrepreneurs trading in goods, intellectual property rights are about trademarks, which are different from the goods and services they trade. In the field of music and movies, IPR is about copyright and can be used to monopolize the copying and distribution of its products. For educators, IPR is the research object in the context of scientific and technological development. Scholars look at intellectual property from different angles, such as philosophy, law, history, economics, etc. They use different theories and empirical methods. But in fact, the formulation and adoption of IP laws in Indonesia is the result of transplanting foreign laws into the national legal system. Specifically, it is the execution of the tasks stipulated by the Law Ratifying the WTO/TRIPs (Law No. 7, 1994).

However, the way the government implements intellectual property laws is one thing, and the way companies apply them to intellectual property protection is another. The requirements for the protection of intellectual property rights in industry are inextricably linked with capital issues. If the patent cannot be applied to industrial production, it will never exist. Therefore, it is clear that intellectual property protection has nothing to do with personal creativity per se, but to monopolize this creativity in industrial production. Capital owners just don’t want to lose the benefits they gain from using capital to produce patent-protected inventions. In addition, not all capital owners applying for patents are interested in actually implementing such patents. Some European companies that have applied for patents in Indonesia may not implement such patents in their investments. Whether they choose to apply for patent protection is usually subject to cost-benefit considerations. For example, some multinational pharmaceutical companies have applied patent protection to monopolize the investment market.[23] Their main concern is the competition they face in the host country, and they worry that this will endanger their investment capital.

The myth of technology transfer reveals another evidence that the patent system only provides protection to capital owners. Even though the Indonesian Patent Law contains a requirement that every patent issued in Indonesia must be implemented in Indonesia,[24] there is actually no control mechanism to ensure that foreign patent owners comply with this requirement. The idea of technology transfer through the use of the patent system is just an ideal situation stated in the law.[25] As Frederick M. Abbot et al. had pointed out that there is no evidence that the patent system has had a significant impact on technology transfer or contributed to the economic growth of developing countries.[26] As Meika Foster pointed out, in order to protect their research results, the world’s large pharmaceutical companies have been behind the importance of the patent system, “without patent protection much of the research currently available would not exist".[27]

As we mentioned above, not only in Indonesia, but also in other third world countries, more than 80% of the patent rights in these countries/regions are owned by foreign multinational companies. Among them, more than 90% of companies have not implemented it.[28] In the context of the pharmaceutical industry, this situation is clearly harmful to developing countries that need adequate and affordable medicines to solve their health problems. Multinational companies can increase the price of medicines in developing countries by restricting patents, because the latter must import patents based on the judgment of the former.[29] The import of such high-priced drugs may also affect the trade balance between developed and developing countries, because the financial resources of the latter are absorbed by the former in the form of user fees paid to multinational companies. Therefore, it may be necessary to take note of David Vaver’s idea that only innovations that bring substantial benefits to local communities should be granted patents.[30]

IPR Protection against Indigenous People’s Rights

Indigenous peoples are specially protected in the discourse of human rights. In other areas of international law (international environmental law, international cultural law, development cooperation law, etc.), indigenous peoples play a more active role. The potential contributions of indigenous peoples include environmental protection, food security, human health, economic development cooperation and the promotion of cultural diversity. Taking traditional knowledge as an example, it has been recognized internationally that the traditional knowledge of indigenous peoples is of great significance to the protection, utilization and evolution of biodiversity and the management of climate change.[31] From a legal point of view, traditional knowledge covers all individual or collective innovations and practices developed by indigenous peoples with socio-economic value for the protection of biodiversity, traditional medicine and folklore expressions.[32]

The use of traditional knowledge is also considered essential in meeting food security and human health needs. The International Treaty on Plant Genetic Resources for Food and Agriculture emphasizes the primary role of indigenous farmers’ communities in ensuring food and agricultural production through the use of traditional practices (Article 9, paragraph 1). Similarly, the World Health Organization (WHO) emphasizes the importance of facilitating access to traditional medicines from indigenous and local communities on behalf of the global population.[33] This has prompted the international scientific community to promote the establishment of an international legal system to obtain genetic resources and traditional knowledge involving indigenous communities.[34] However, regardless of how international conventions and declarations claim rights to indigenous peoples, the establishment of special rights for indigenous peoples in these agreements only marginally reflects the situation in countries such as Indonesia with thousands of self-identified indigenous communities.

All these international regulations bear the imprint of the problems faced by settler countries, that is, the relationship between the “whites” or, in any case, the dominant settler and the indigenous peoples.[35] Therefore, these regulations seem to be aimed at recognizing the indigenous peoples and at least partially restoring the rights of the states established by the original colonists. The special rights granted by the decree to indigenous peoples apply to indigenous communities in all states, at least in countries that have signed these agreements. Conventions promulgated by UNESCO, such as the Convention for the Safeguarding of Indigenous Cultural Heritage (2003) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005, entered into force in 2007; Indonesia joined in 2012), emphasizing “culture", and underlining that only by protecting human rights and fundamental freedoms can "culture" be protected and promoted. Here, apart from the fact that indigenous peoples are social groups that have suffered historical injustices in many respects, cultural values and practices are also in the foreground. In fact, "culture" is at the core of what Indonesia calls adat.[36] In addition to the history of oppression and deprivation, the indigenous peoples of Indonesia also advocate that their special local culture should be distinguished from other ethnic groups. They need to make a specific definition of their own cultural peculiarities to fill the " tribal slot."[37] Indeed, the claim to unique culture has given the validity of many indigenous political foundations. The politicization of indigenous culture is accompanied by a tendency to define it as property. Nowadays, indigenous representatives around the world usually not only talk about themselves as representatives of unique cultures, but also talk about themselves as part-owners of the collectively propertied cultures.[38]

As Richard Handler has shown, this kind of politics is also crucial to certain forms of nationalism and subnationalism. As he suggested, state and sub-state polities, especially emerging polities, claim to have "culture" and enact legal exclusion rights, and ownership policies to enhance their political legitimacy. Contemporary indigenous cultural property claims range from materials (human remains, cultural relics, important sites) to intangible assets (sacred symbols, music, cultural heroes, traditional plant knowledge), and are one of the most extensive areas of political and economic actions of indigenous peoples. As James Boyle explained: “The author stands between the public and private spheres, provides new ideas for the entire society, and is rewarded, that is, the artwork he or she creates limited private property rights in (or at least collected from artworks). The part that is stored together by our thoughts, language, and genre”.[39] Therefore, the main goal of intellectual property law is to ensure that information enters the public domain in a timely manner, while allowing creation people (whether individuals or corporate groups) obtain reasonable financial and social benefits from their works.

According to Rosemary Coombe, a savvy critic of current intellectual property laws, a key feature of postmodern culture is the increasing influence of commoditized symbols in everyday thought and political speech. She and others claim that aggressively expanding copyright and trademark rights is a major threat to freedom of speech and political dialogue. People are increasingly worried about the corporate control of the symbols that make up their daily social life, and the emergence of new technologies that make cheap copying and the instant dissemination of music, graphic art and text possible, leading to claims that copyright has been or will soon be dead.[40] As many commentators have observed, the struggle for political and cultural sovereignty often causes indigenous activists to talk about culture as if culture is a fixed and tangible thing.[41] The method of requesting the return of land and resources is intertwined with the requirements of religious freedom and other basic rights, so that it is sometimes difficult to distinguish between culture and material expression.

The fall of Suharto’s regime in 1998, and the beginning of the subsequent era of reforms (reformasi), which promoted decentralization and aimed at democratization, provided opportunities for indigenous peoples (masyarakat adat) and the government to restore fair treatment and deprivation of property rights, which these people have suffered. The first milestone in the struggle for the rights of indigenous communities, especially their adat land, seems to have been set by the Constitutional Court’s ruling in May 2013. The decree abolished the term "state" in Article 1(f). In the 1999 Forestry Law, the law previously declared that “customary forests are state forests located in the areas of custom-based communities”. Article 5 of the law has also been revised, which stipulates that state-owned forests include customary forests".[42]

With this decision, the state officially lost millions of hectares of forest land, most of which were granted concessions for natural resource industries (private and state-owned enterprises), especially mining, logging and agriculture. In the future, franchisees will have an obligation to negotiate directly with local communities, not just with representatives of the national government. However, "indigenous peoples" is a relational term in several respects.[43] In terms of socio-politics, the term refers to the relationship between a smaller, weaker society and a stronger majority or dominant society or nation-state, and represents marginalization and discrimination due to its culture. Therefore, although they were once victims of various injustices, their culture has now become a privilege.

According to the currently pending draft law on indigenous peoples,[44] masyarakat adat needs to show five characteristics to be formally recognized as masyarakat bukum adat (customary community law): having a common history, owning customary land, owning adat laws, having specific property relationships and inheritance/adat artifacts, and having a customary governance system.[45] Indigenous peoples or customary law communities should be given special status and corresponding rights and entitlements. This special status is based on the adat and legitimizes claims based on descent, or jus sanguinis. Other citizens, whose equal rights are based solely on mandatory nation-states, do not enjoy this right. In fact, they are excluded.[46] The international conventions, especially the conventions of the United Nations Permanent Forum on Indigenous Issues, emphasize that self-identification is the main factor in determining which community is "indigenous".[47] In Indonesia’s draft RUU PPHMHA law, self-identification is a key criterion for community self-determination. However, the recognition of this status requires further steps by political institutions.[48]

These customary communities have individual cultural systems with special values, rules and practices, reflecting the Indonesian motto of “Unity in Diversity” (Binneka Tunggal Ika), and only slightly considered by international organizations and transnational organizations when they transfer universal rights from the international through the national and, finally, to the regional and local levels. They also do not seem to worry about how the relationship between thousands of indigenous communities, in the case of Indonesia, and a nation-state with historical and cultural influence will be configured in a fair manner. Therefore, the ensuing legal pluralism and all its inherent contradictions and different goals are a challenge for all stakeholders,[49] especially policy makers. In practice, national laws and indigenous regulations are not independent domains. On the one hand, there are no clear boundaries between the national administration and its staff, local representatives and holders of political office and, on the other, actors who argue and act on behalf of adat.[50] This creates a broad gray area for ambitious actors, allowing them to use domains and powers and combine them to achieve their own goals or the goals of a party, depending on the specific situation and purpose.[51]

As suggested by Tania Li, the self-identification of indigenous peoples today can be understood as a defensive response to the many forms of capitalism, by ascribing to them the role of forest preservers or by indebtedness (mortgages, especially of small farmers).[52] The use of adat and the accompanying revival of adat are also a means of realizing the reconfiguration of power relations, which has become a powerful tool in Indonesia.[53] Adat as a general term is not limited to "indigenous people", but also refers to traditional and inherited values. In masyarakat adat, the meaning of "indigenous" overlaps and merges with "autochthonous". Gausset et al. Point out that “indigenous” means people who have been marginalized, while autochthonous may be “reserved for people who are dominant in a given area but fear future marginalization”,[54] or people who formerly had suffered marginalization as in Bali which, however, has come to an end.[55] Moreover, the former traditional elites, nobles, kings and sultans also have their own adat.[56] These people also referred to their adat and recognition, rights, and especially land. Since many of them were able to retain their iconic capital (playing a leading role in ceremonies, having the right to confer titles of nobility, etc.), or also managed to reach a settlement with the ruling party during the New Order regime, some of them gained recognition in politics.[57]

Regional Autonomy and Indigeneity

Now as Indonesia has been actively involved in international IPR protection regimes and, as we argued above, indigenous peoples of Indonesia, who have been disadvantaged by current trends in international IPR regulations, seem to have gained more recognition in politics, the matters are, however, somewhat complicated by decentralization in Indonesian governments. Central government may have been eager and pressured to abide by international agreements on IPR regulations, but local governments, who have executive capabilities and have their own legislative powers, could have other thoughts than abiding international agreements. For example, they may want to increase taxes or other fees on foreign companies or even to deny their rights in patent protection. On the other hand, they may cater to demands of foreign investors by sacrificing indigenous peoples’ properties, such as adat lands or other natural resources, and disregard or even damage traditional knowledge and other cultures.

With the passing of the Suharto regime and support for democratic reforms, the issue of regional economic and political decentralization has returned to the center of Indonesian national politics. One year after Suharto’s “resignation”, the Indonesian Parliament (Dewan Pewakilan Rakyat, DPR) passed Law No. 22 on Regional Governance, which abolished the laws of 1974 and 1979, officially recognized local political institutions other than the desa, greatly devolving the decision-making ability to empower regional administrations (kabupaten).[58] The law authorizes local councils to formulate and enforce their own regulations, and allows the establishment of village councils (Badan Perwakilan Desa) that can pass regulations on villages. Law No. 25 of 1999 on the Fiscal Balance between the Central Government and the Regions also laid the foundation for improving the fiscal independence of local governments.[59] Since 1999, the national and regional parliaments have revised a series of laws to adapt and implement the regional autonomy system established under Laws No. 22 and No. 25 (1999).

The prospect of decentralizing power to local adat-based institutions politicizes indigeneity in the context of regional autonomy, making indigenous identity an increasingly common aspect of national and regional party politics. The issue of indigenous rights has become part of the agenda of a larger political reform movement (reformasi). By the late 1990s, the national indigenous rights movement began to unite, mainly organized by students in Jakarta, and to a large extent borrowed from international human rights discourse. In March 1999, an Association of Indigenous Peoples of the Archipelago (Assosiasi Masyarakat Adat Nusantara, AMAN) was established, which promoted the use of the term masyarakat adat, and its definition has been expanded enough to cover politically powerless minorities.[60] AMAN defines masyarakat adat as "a community living together based on their origins inter-generally in adat land, who have sovereignty over the land and the natural resources, sociocultural life regulated by adat law and adat institutions which manage the sustainability of the communities’ lives".[61] The core of the AMAN political platform is the abolition of laws restricting decision-making power at the village level, decentralization of power to "indigenous" political institutions and recognized hukum adat.[62]

Political parties began to invoke localized rhetoric, and representatives of customary institutions began to accept regional autonomy, which is the long-awaited tool for re-enabling their institutions at the local level. In some areas, the reform of regional autonomy itself is largely responsible for the reconstruction of traditional forms of governance.[63] The Asian Development Bank pointed out that with the promulgation of Law No. 22, self-identification as an "adat community" is becoming more common.[64] When the law came into effect in early 2001, local lawmakers immediately accepted their newly established powers. Throughout the archipelago, local councils passed legislation to impose new fees and taxes on local residents, especially immigrants. In many places, this has led to the emergence of new types of local elites and the crystallization of new political patronage networks.[65]

Laws are made by the most powerful groups in society. As the country’s most powerful entity, the government has the greatest power to determine the legal form, content, and intentions. From this perspective, the new regional regulations are not only tools for implementing the decentralization process, but also a manifestation of the vested interests of specific political and economic forms in the region. Within a few months after the "Regional Government Law" came into effect, more and more "perda mania" began to plague the country.[66] As De Soto writes, with respect to Peru, “The number of laws and regulations continues to grow like a cancer in the interests of particular groups”.[67]

Gradually, the centralized and national control of IP rights and benefits from licensing and royalty collections were encountering claims from local communities, indigenous communities, and regional governments. Unsurprisingly, the first set of local regulations was proclaimed in 2008 in the province of Papua to protect IP rights of indigenous Papuans.[68] Papua remained under Dutch administration until 1962 and was incorporated into Indonesia after a controversial referendum in 1969, which was resisted by the Organisasi Papua Merdeka (Free Papua Organization).[69] The autonomy law makes a distinction between indigenous Papuans and other residents of the province. It defines “indigenous Papuans” as Rumpun ras Melanesia (descending from Melanesian racial stock), who are recognized by the Papuan adat communities.[70] The same definition is also used in the Protection of Intellectual Property Rights of Indigenous Papuans.[71] It was inevitable that the proliferation of local IP regulations would create a situation of inconsistencies among local and national IP laws. For instance, IP protection regulation in West Java includes geographic indications (GIs) in a rather confusing category called hak terkait (neighboring rights),[72] which is generally used in other provinces and elsewhere in this regulation for copyright.[73]

Papua is somewhat special, but later other provinces also began to draft their own rules and regulations on IP rights. For example, West Java issued a Regional Regulation No. 5 on the Protection of Intellectual Property.[74] It was made clear that the regional regulation on intellectual property in Banka Belitung is meant to raise income and to channel royalty fees from the central to the regional government.[75] However, are the local governments allowed to enact such wide-ranging regulations? Article 70 of the new Trade Marks and Geographical Indications Act states merely that the central and/or regional government is responsible for setting guidance, including legal protection, with respect to GIs, depending on their respective authority. Therefore, it leaves the matter undecided. On the other hand, Law No. 23 of 2014 on Regional Government Administration reserves a few areas to the national government while includes an Annex designating fields in which both national and regional governments have powers to act. The central government is responsible for community IP rights in the area of culture,[76]Here and the development of the nation’s creative industries.[77] And governments of all levels are responsible for the empowerment of adat communities, depending on their locations.[78] The recognition of adat communities, traditional knowledge and related rights are included in the section on environment and is the responsibility of local authorities, except for the case that the communities inhabit across several provinces in which the power is relegated to central government.[79]

Representatives of the regional and national chambers of commerce were the first to approach President Megawati Sukarnoputri in 1998 during the Asian financial crisis. They provided her with a list of 1,006 local regulations that they considered "foolish" and "anti-business". A few months later, the International Monetary Fund (IMF) requested the repeal and revocation of 100 "problematic" regional regulations through the Ministry of Finance. Later, this request was included in the IMF Letter of Intent signed with the Indonesian government. The next day, the Ministry of Finance made a proposal to the Ministry of Internal Affairs to overturn 71 regional regulations that they claimed to restrict free trade in goods, services and capital between regions. At the annual meeting of the Supreme Consultative Council (MPR) held in November 2001, the enthusiasm for regional regulations reached its peak, and it was recommended that the Supreme Court conduct judicial review of all regional regulations that may conflict with national laws instead of waiting for court challenges of individual laws.[80] Thus, how far the regional regulations on IP rights will go remains to be seen.

This situation is being demonstrated with minimal transparency or public participation. As a result, the government reform in Indonesia only changed the relationship between the central government and local governments, while the relationship between the government and the public has not changed. The central agency’s decision-making is distributed to multiple local centers. Local political elites have used legislative procedures to further strengthen their political powers, and are supported and increased by fees and taxes imposed on local producers, traders, service providers and consumers. Local politicians in resource-rich areas try their best to get the most benefit from local resources. The exposure of human rights violations during and after the demise of the New Order undermined the prestige and effectiveness of the Indonesian military. The new party won seats in the national and regional parliaments, something that has never happened in Indonesia since the 1955 general election.[81]

Indonesia’s regional autonomy enables serious participation in the legislative process and allows the public to participate. The pressure of community groups may also influence local administrative and legislative departments to formulate and implement laws that reflect the will of the people and protect their interests. In general, the substance of Perda and the decree of Bupati (district head) recognize the existence and special rights of local and traditional communities and their territories and institutions, and provide opportunities for these groups to protect and practice traditional lifestyles, while allowing their institutions coexist with formal government agencies. These regulations and drafts also allow local communities to manage their own affairs and resolve their own conflicts in accordance with their own cultural norms and traditions. However, most of these laws only guarantee limited rights and responsibilities to local and traditional communities and institutions. For example, Banten Perda, which protects the community property of the people of Baduy, only applies to land that has been reclassified for other purposes under the agrarian or forestry law, and stipulates that conflicts with external firms, agencies and individuals must be resolved in Indonesian courts.[82]

Therefore, legally speaking, the central government can continue to regulate any affairs for which local governments also have jurisdiction. The Autonomy Law of 2004 reserved some affairs specifically for the central government: foreign affairs, national defense, security, national monetary and fiscal matters, and religion (Article 10, paragraph 3). The central government also has exclusive powers over judicial affairs (urusan yustisi), including establishing judicial institutions, appointing judges and prosecutors, determining judicial departments and immigration policies, and enacting statutory laws and other national laws (elucidation to article 10, paragraph 3). However, the central government can delegate jurisdiction over these matters to local governments (Article 10, paragraph 4). If local laws are inconsistent with most types of national laws, the national laws shall prevail (Article 10, paragraph 5). In other words, Perda only has legal and at least formal legitimacy when passed without conflicting with higher-level laws. Once passed, Perda can easily be replaced by statutory laws, government regulations or presidential regulations, all of which are higher in the hierarchy.[83]

The 2004 Regional Autonomy Law (Indonesia) gave central government the power to review Perda. For most types of Perda, central government will review the Perda after local legislator enacts it. Regional legislators must send their Perda to central government within 7 days of enactment. Central government will review Perda based on two criteria: whether Perda contravenes the "public interest" (kepentingan umum) or contradicts a "higher law" (peraturan perundang-undangan yang lebih tinggi) (Article 145, paragraph 2). Therefore, thousands of Perda have been reviewed and hundreds are invalidated.[84] By the end of 2006, central government had received more than 12,000 regional laws for review, and from 1999 to 2007, 1,406 local laws were abolished.[85] By 2008, the Ministry of Finance alone had received 7,200 Perda and proposed to revoke about 2,000 of them, most of which attempted to collect illegal taxes or user fees.[86]

In its report, the Ministry of Finance divides laws and regulations into five categories: 1) Laws affecting goods and services; (2) Regulations on the use of public facilities; 3) Fees for imposing tariffs on the free flow of goods, services, capital and people; 4 ) Permits in the licensing regulations; and 5) Provisions on "voluntary contributions".[87] In many areas between the community and the local government, discussions and negotiations on the proposed laws and regulations to recognize and protect the rights of the adat of the local traditional ethnic groups, such as the Dayak Pitap community in South Kalimantan, the Enggano in Bengkulu, the adat people of Biak Island, Papua, the people of Desa Guguk and Batu Kerbau in Kapubaten Meringin, Jambi, and the village communities of Benung in Kutai Barat, East Kalimantan. The list of examples shows that Indonesia’s era of regional autonomy has also enabled legislative procedures to attract active public engagement and participation. They also indicated that pressure from community groups may influence local administrative departments and government legislative departments to formulate laws that reflect the will of the people and protect their interests. These regulations and drafts also allow local communities to manage their own affairs and resolve their own conflicts in accordance with their own cultural norms and traditions.[88]

Although there are doubts about the importance or benefits of these new regulations, it seems that most of the cases are promoted by external NGOs in cooperation with local communities. This is an experiment in realizing the ideological agenda of participatory local government by NGOs, based on the adat values in traditional communities. The success of these undertakings depends, to a large extent, on the acceptance and goodwill of local officials in the legislative and executive branches of the government.

Once the process enters the implementation phase, many of the new regulations will encounter problems, such as Tana Toraja's Perda on Lembang Government or Kabupaten Wonosobo's community forest Perda. These problems are not only delays in implementation, but also indicate the lack of commitment and responsibility of the government that caused these problems, and the overall weakness of local communities to apply political pressure to complete the process. Once the NGO leaves the scene, the momentum slows and the enthusiasm wanes. This is related to the characteristics of the "social movement" that first caused the decree. It only affects the decision-making in the policy-making stage. In the subsequent implementation phase, old relationships and interests reappeared, replacing the participatory and inclusive dynamics that briefly dominated the drafting and deliberation process. This means that these relatively progressive regulations can still be manipulated to serve the interests of local businesses and political elites—the birth of a new rent-seeking system. The level of political complexity in most rural communities in Indonesia is still limited. These problems could have been resolved through promises and concessions, but the real power is still in the hands of politicians and business interests.

Unconstrained power and insufficient incentives encourage rent-seeking among government officials. On the other hand, decentralization destroys these opportunities by establishing institutional arrangements that formalize the relationship between citizens and public servants. Political decentralization, especially the election of local officials by citizens, coupled with a strong legal framework, can establish a local accountability system, thereby enhancing the legitimacy of officials, enhancing citizens' participation and interest in politics, and deepening the democratic nature of state institutions.[89] The main components of most anti-poverty programs are to increase the possibility of participation, improve access to services, and provide public goods more effectively at the local level. However, the connection may not be that simple.

Concluding Remarks

Indonesia is now facing the challenge of so-called TRIPS plus clauses in RCEP, especially those proposed by Japan and South Korea, which are most relevant to Indonesia in two respects. The first factor is that Indonesia strongly encourages and develops local production capacity in the medicine and vaccine sector, and it hopes to see that local production capacity helps ensure that more high-quality medicines are available at reasonable prices. It is even believed that it can use the TRIPS flexibility reaffirmed in the 2001 Doha Declaration to protect public health and promote access to medicines for all. However, it has introduced a new rent-seeking regime with foreign multinational companies and companies.

The second challenge is to protect traditional knowledge and traditional cultural expressions (TKTCE) contained in several of the aforementioned laws. However, the disadvantages of using intellectual property protection to develop a traditional knowledge protection system are: 1) It is not very effective, because intellectual property protection is a private domain, which is essentially exclusive, monopolistic and individualistic, while traditional knowledge is collective in nature, which means that it is a kind of common property without considering economic interests, and has no intention to protect the knowledge from outsiders; 2) The data, literature and information on traditional knowledge are very limited and already exist for hundreds of years, therefore, there is no comparative document (prior art) that can be used as a reason for not granting patent rights.[90]

Furthermore, indigenous culture is politicized in Indonesia along with a tendency to define it as property. Contemporary indigenous cultural property claims range from the material to the intangible, which represent one of the spheres of indigenous political and economic actions. However, the individual cultural systems of particular values, rules and practices of the customary communities (masyarakat adat) are only marginally taken into account by international and transnational organizations when they transfer universally conceived rights, such as IPR, from the international through the national and, ultimately, to the regional and local levels. Especially when we are considering inseparability between national laws and indigenous regulations, it creates a broad grey area for actors to take advantage of both domains and combine them to achieve their own purposes or those of their parties. This is the area that needs further explorations and studies especially if we want to disentangle the complexities involved in IPR regulations in international trade agreements such as the RCEP.

Indonesia has politicized indigenous culture and has a tendency to define it as property. Contemporary indigenous cultural property claims vary from material to intangible, representing one of the areas of indigenous political and economic behavior. However, when international and multinational organizations transfer universally conceived rights, such as IPR, from the international through national and, ultimately to the regional and local, they only marginally take into account of values, rules and practices of the customary community (masyarakat adat).

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[1] Agus Sardiono, Membumikan HKI di Indonesia (Bandung: Nuansa Aulia, 2009), pp. 2-5; as cited in Agus Sardjono, “Culture and Intellectual Property Development in Indonesia,” Indonesia Law Review, 3 (September 2011), p. 243.

[2] The words “effective and adequate protection of intellectual property rights” are part of the Punta del Este Ministerial Declaration, which set the mandate for TRIPs negotiations, and the words “adequate and effective protection of intellectual property rights” are part of US statute governing Special 301—see 19 U.S. Code § 2242—Identification of countries that deny adequate protection, or market access, for intellectual property rights (https://www.law.cornell.edu/uscode/text/19/2242, accessed July 17, 2020).

[3] Catherine Field, “Negotiating for the United States,” in Jayashree Watal and Antony Taubman, eds., The Making of the TRIPS Agreement (Geneva: WTO, 2015), pp. 129-57.

[4] Jayashree Watal, Intellectual Property Rights in the WTO and the Developing Countries (Oxford University Press, 2001), pp. 36-39; A.V. Ganesan, “Negotiating for India,” in Jayashree Watal and Antony Taubman, eds., The Making of the TRIPS Agreement (Geneva: WTO, 2015), p. 231.

[5] Field, “Negotiating for the United States,” p. 130.

[6] WIPO, “Paris Notification No. 95: Ratification by the Republic of Indonesia of the Stockholm Act (1967) (with the exception of Articles 1-12) (https://www.wipo.int/treaties/en/notifications/paris/treaty_paris_95.html).

[7] “Ministerial Declaration on the Uruguay Round,” 20 September 1986 (World Trade Organization) (https://www.jus.uio.no/lm/wto.gatt.ministerial.declaration.uruguay.round.1986/).

[8] The right of priority gives any person who has filed an application for a patent in one country of the International Union of Property Owners (UIPI) for protection of Industrial Property, established through the Paris Convention, twelve months in which to file in other countries of the Union, during which period his/her claim cannot be invalidated by acts of third parties.

[9] Under Article 2 of the Paris Convention, each member country of the Union is required to give nationals of other member countries the same protection and privileges as it gives its own nationals and is prohibited from imposing any requirement as to domicile or establishment.

[10] “RCEP & Intellectual Property,” bilaterals.org (https://www.bilaterals.org/IMG/docx/rcep-ip-chapter-15october2015.docx?lang=en, accessed July 23, 2020)

[11] “RCEP and Health: This Kind of ‘Progress’ Is Not What India and the World Need,” bilaterals.org (https://www.bilaterals.org/?rcep-and-health-this-kind-of&lang=en, accessed July 23, 2020). See also “Full Use of TRIPS Flexibilities Critical to Ensuring Access to Medicines and Fulfilling Commitments on UHC,” MTAAG, December 20, 2019 (https://mtaagplusmalaysia.wordpress.com/2019/12/20/full-use-of-trips-flexibilities-critical-to-ensuring-access-to-medicines-and-fulfilling-commitments-on-uhc/, accessed July 23, 2020).

[12] “RCEP and Health.”

[13] “RCEP and Health.”

[14] See Shri Justice N. Rajagopala Ayyangar, Report on the Revision of the Patent Law (New Delhi: Ministry for Commerce and Industry, India, 1959)

[15] Constantine Vaitsos, “Patents Revisited: Their Function in Developing Countries,” Journal of Development Studies, 9(1) (October 1972), pp. 77-79; cited in Edith Penrose, “International Patenting and the Les-Developed Countries,” Economic Journal, 83(331) (September 1973), p. 772.

[16] There is also the question of how far the products compared were really identical since some were listed by brand name and presumably, therefore, were comparable with the nearest equivalent product sold under its generic name.

[17] Ayyangar, Report on the Revision of the Patent Law.

[18] Eva Novi Karina, “Is Indonesia’s IPR Framework Incompatible with RCEP? On Intellectual Property Rights, There’s a Serious Gap Between Domestic Indonesian Law and the Structures of the Proposed RCEP,” The Diplomat, May 11, 2019.

[19] Karina, “Is Indonesia’s IPR Framework Incompatible with RCEP?”

[20] “Indonesia and IPR Developments, a New Dimension,” ipeg (https://www.ipeg.com/indonesia-and-ipr-developments-a-new-dimension/, accessed July 8, 2020); “Intellectual Property,” EuroCham Indonesia Position Paper 2018.

[21] “Intellectual Property,” EuroCham Indonesia Position Paper 2018.

[22] David J. Allee, “Public and Private Property Rights,” AgEcon Search (1972), pp. 63-64.

[23] Mark Ritchie et al., “Intellectual Property Rights and Biodiversity: The Industrialization on Natural Resources and Traditional Knowledge,” Journal of Civil Rights and Economic Development, 11(2) (Spring 1996), pp. 441-42.

[24] Article 17 paragraph (1) of Law No. 14, year 2001, concerning Patent.

[25] As articulated in the Elucidation in Article 17 paragraph (1) of Law No. 14.

[26] Frederick M. Abbot et al., International Intellectual Property in an Integrated World Economy, 4^th ed. (New York: Kluwer, 2019), p. 9.

[27] Meika Foster, “The Human Genome Diversity Project and the Patenting of Life: Indigenous People Cry Out,” Canterbury Law Review, 7 (1999), p. 358.

[28] Ritchie et al., “Intellectual Property Rights and Biodiversity,” p. 439.

[29] As discussed in Foster, “The Human Genome Diversity Project and the Patenting of Life,” pp. 360-61.

[30] David Vaver, “Intellectual Property Today: Of Myths and Paradoxes,” Canadian Bar Review, 69(1) (1990), pp. 120-21.

[31] Convention on Biodiversity, preamble, Para.12; The Nagoya Protocol, Preamble, Para. 20; Andean Community of Nations, Decision 391, Preamble, Para. 5; Ottawa Declaration, Preamble, Para. 6. See Stefan Growth, “Perspektiven der Differenzierung: Multiple Ausdeutugen von traditionellem Wissen indigener Gemeinschaften in WIPO Verhandlungen,” in R. Bendix, K. Bizer and S. Growth, eds., Die Konstituierung von Cultural Property: Forschungsperspektiven, Göttinger Studien zu Cultural Property, Vol. 1 (Göttinger: Universitätsverlag, 2007), pp. 177-95; as cited in Maria Victoria Cabrera Ormaza, “From Protection to Participation? Shifting Perceptions towards Indigenous Peoples under International Law,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), p. 36.

[32] Further elaboration on the concept of traditional knowledge can be found in WIPO, “Draft Articles on the Protection of Traditional Knowledge Prepared at IWG 2,” WIPO/GRTKF/IWG/2/3 (March 17, 2011).

[33] WHO, Traditional Medicine Strategy 2014-2023 (World Health Organization, 2013).

[34] Evanson Chege Kamau, Bevis Fedder and Gerd Winter, “The Nagoya Protocol on Access to Genetic Resources and Benefit Sharing: What Is New and What Are the Implications for Provider and User Countries and the Scientific Community?” Law, Environment and Development Journal, 6(3) (2010), pp. 246, 254.

[35] Francesca Merlan, “Indigeneity: Global and Local,” Current Anthropology, 50(3) (June 2009), pp. 303-33.

[36] For a detailed discussion of adat, its significance and use in present-day Indonesia, see David Henley and Jamie S. Davidson, “Introduction: Radical Conservatism—the Protean Politics of Adat,” in Jamie Seth Davidson and David Henley, eds., The Revival of Tradition in Indonesian Politics: The Deployment of Adat from Colonialism to Indigenism (London: Routledge, 2007), pp. 1-49.

[37] See Tania Murray Li, “Articulating Indigenous Identity in Indonesia: Resource Politics and the Tribal Slot,” Comparative Studies in Society and History, 42(1) (2000), pp. 149-79.

[38] Michael Brown, Who Owns Native Culture? (Cambridge: Harvard University Press, 2003).

[39] James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Harvard University Press, 1996), p. xii.

[40] Rosemary J. Coombe, “Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue,” Texas Law Review, 69 (June 1991), p. 1866.

[41] See, e.g., Rosemary Coombe, “Cultural and Intellectual Properties: Occupying the Colonial Imagination,” PoLAR: Political and Legal Anthropology Review, 16(1) (1993), pp. 8-16; Jean E. Jackson, “Is There a Way to Talk about Making Culture without Making Enemies?” Dialectical Anthropology, 14(2) (1989), pp. 127-43; Jean E. Jackson, “Culture, Genuine and Spurious: The Politics of Indianness in the Vaupés, Colombia,” American Ethnologist, 22(1) (1995), pp. 3-27.

[42] “Editorial: Court Ruling Will Help Preserve Indonesia’s Forests,” The Jakarta Globe, May 18, 2013.

[43] See also Merlan, “Indigeneity: Global and Local.”

[44] The Draft Law on the Recognition and the Protection of the Rights of Indigenous Peoples (RUU PPHMHA).

[45] Yance Arizona and Erasmus Cahyadi, “The Revival of Indigenous Peoples: Contestations over a Special Legislation on Masyarakat Adat,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), pp. 43-62.

[46] Adam Tyson, “Being Special, Becoming Indigenous: Dilemmas of Special Adat Rights in Indonesia,” Asian Journal of Social Science, 39(5) (2011), pp. 652-73.

[47] Quentin Gausset, Justin Kendrick and Robert Gibb, “Indigeneity and Autochthony: A Couple of False Twins?” Social Anthropology, 19 (May 2011), p. 137.

[48] Arizona and Cahyadi, “The Revival of Indigenous Peoples.”

[49] Franz von Benda-Beckmann and Keebet von Benda-Beckmann, “Unity and Diversity: Multiple Citizenship in Indonesia,” in Marie-Claire Foblets et al., eds., Cultural Diversity and the Law: State Responses from Around the World (Burxelles: Bruylant, 2010), pp. 889-917; as cited in Brigitta Hauser-Schäublin, “Introduction: The Power of Indigeneity: Reparation, Readjustments and Repositioning,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), p. 11.

[50] Serena Müller, “Adat as a Means of Unification and Its Contestation: The Case of North Halmahera,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), pp. 99-114.

[51] See, e.g., Anna-Teresa Grumblies, “Being Wana, Becoming an ‘Indigenous People’: Experimenting with Indigeneity in Central Sulawesi,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), pp. 81-98; Müller, “Adat as a Means of Unification and Its Contestation.”

[52] Tania Murray Li, “Indigeneity, Capitalism and the Management of Dispossession,” Current Anthropology, 51(3) (June 2010), pp. 385-400.

[53] Adam D. Tyson, Decentralization and Adat Revivalism in Indonesia: The Politics of Becoming Indigenous (London: Routledge, 2010); Tyson, “Being Special, Becoming Indigenous.”

[54] Gausset et al., “Indigeneity and Autochthony,” p. 139.

[55] See Brigitta Hauser-Schäublin, “How Indigenous Are the Balinese? From National Marginalisation to Provincial Domination,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), pp. 133-48.

[56] Gerry van Klinken, “Return of the Sultans: The Communitarian Turn in Local Politics,” in Jamie Seth Davidson and David Henley, eds., The Revival of Tradition in Indonesian Politics: The Deployment of Adat from Colonialism to Indigenism (London: Routledge, 2007), pp. 149-69.

[57] See Fadjar I. Thufail, “Becoming Aristocrats: Keraton in the Politics of Adat,” in Brigitta Hauser-Schäublin, ed., Adat and Indigeneity in Indonesia: Culture and Entitlements between Heteronomy and Self-Ascription, Göttinger Studies in Cultural Property, Vol. 7 (Göttinger: Universitätsverlag, 2013), pp. 167-84.

[58] Undang-undang Nomor 22 Tahun 1999 tentang Pemerintahan Daerah (http://www.dpr.go.id/dokjdih/document/uu/UU_1999_22.pdf, accessed August 3, 2020).

[59] Undang-undang Nomor 25 Tahun 1999 tentang Perimbangan Keuangan Pusat dan Daerah (PKPD) (http://www.dpr.go.id/dokjdih/document/uu/UU_1999_25.pdf, accessed August 3, 2020).

[60] See, e.g., Article 36 of Law No. 39 on Human Rights (1999), Law No. 41 on Forestry (1999) (replacing the Basic Forestry Law of 1967), and Regulation No. 5 of the Minister of Agrarian Affairs/Head of National Land Board on Guidance for Resolution of Problems of Ulayat Rights of Adat Law Communities. Cf. ADB, Indigenous Peoples/Ethnic Minorities and Poverty Reduction – Indonesia (Asian Development Bank, 2002), pp. 13-20.

[61] ADB, Indigenous Peoples/Ethnic Minorities and Poverty Reduction – Indonesia, note 6, p. 5.

[62] “Taking the Message to the Top,” Down to Earth, 41, Special issue (October 1999) (https://www.downtoearth-indonesia.org/story/taking-message-top).

[63] See, e.g., Margot Cohen, “Autonomy Rules, OK?” Far Eastern Economic Review, no. 2 (August 2001), p. 55.

[64] ADB, Indigenous Peoples/Ethnic Minorities and Poverty Reduction – Indonesia, note 6, p. 7.

[65] Frederick Rawski and John MacDougall, “Regional Autonomy and Indigenous Exclusivism in Bali,” International Journal on Minority and Group Rights, 11(1/2) (2004), p. 147.

[66] Perda, regional government regulations. See, e.g., H. Abdurrahman, Draft Laporan Pengajian Hukum tentang Mekanisme Pengakuan Masyarakat Hukum Adat (Jakrta: Pusat Penelitian dan Pengembangan Sistem Hukum Nasional Bada Pembinaan Hukum Nasional Kementerian Hukum dan Hak Asasi Manusia R.I., 2015) (https://www.bphn.go.id/data/documents/mekanisme_pengakuan_masy_hkm_adat.pdf, accessed, August 9, 2020).

[67] Hernando De Soto, The Other Path: The Invisible Revolution in the Third World (Basic Books, 1989), pp. xx-xxi.

[68] See Peraturan Daerah Khusus Provinsi Papua Nomor 19 Tahun 2008 Tentang Perlindungan Hak Kekayaan Intelektual Orang Asli Papua.

[69] M.C. Ricklefs, A History of Modern Indonesia since c. 1200, 3^rd ed. (London: Palgrave, 2001), pp. 328, 358-59.

[70] Art. 1 of Law No. 21 of 2001 on Special Autonomy for the Papua Province.

[71] Art. 1 No. 8 of the Special Regional Regulation of the Province Papua No. 19 of 2008 on the Protection of Intellectual Property Rights of Indigenous Papuans.

[72] Art. 7(2) of Regional Regulation of the Province of West Java on the Protection of Intellectual Property.

[73] For example, in art. 8(3) and 8(4) the term is used to cover performances, recordings, and broadcasting rights.

[74] Peraturan Daerah Provinsi Jawa Barat Nomor 5 Tahun 2012 Tentang Perlindungan Kekayaan Intelektual.

[75] “Kanwikumham Babel Ajukan Perda HAKI,” Radar Bangka, 13 Desember 2014.

[76] Annex to Law No. 23 of 2014 under V.

[77] Annex to Law No. 23 of 2014 under Z.

[78] Annex to Law No. 23 of 2014 under M.

[79] Annex to Law No. 23 of 2014 under K.

[80] Simon Butt, “Regional Autonomy and Legal Disorder: The Proliferation of Local Laws in Indonesia,” Singapore Journal of Legal Studies (July 2010), pp. 1-21.

[81] Rikardo Simarmata, “Regional Autonomy and the Character of Local Government Laws and Regulations~New Pressures on the Environment and Indigenous Communities: A Preliminary Diagnosis,” Pape submitted for the International Association for the Study of Common Property 9^th Biennial Conference (Victoria Fall, Zimbabwe, January 2002).

[82] Simarmata, “Regional Autonomy and the Character of Local Government Laws and Regulations.”

[83] Article 7(1) in the Law on Lawmaking (Law No. 10 of 2004, Indonesia) provides a “hierarchy of laws” (tata urutan peraturan Perundang-undangan).

[84] “Dibatalkan Lewat Perpres atau Kepmendagri?” Problem Hukum Pengujian Perda (2), 23 Juni 2006 (https://www.hukumonline.com/berita/baca/hol15045/dibatalkan-lewat-perpres-atau-kepmendagri/, accessed August 11, 2020).

[85] UNDP, Enhancing Communications, Advocacy and Public Participation Capacity for Legal Reforms (CAPPLER) (Phase II, Jakarta, 2008); as cited in Butt, “Regional Autonomy and Legal Disorder,” Note 37, p. 10.

[86] Eko Susi Dosdianasari et al., Dinamika Penyusunan, Substansi dan Implementasi Perda Pelayanan Publik (World Bank, 2009), p. ix.

[87] Simarmata, “Regional Autonomy and the Character of Local Government Laws and Regulations.”

[88] Simarmata, “Regional Autonomy and the Character of Local Government Laws and Regulations.”

[89] See, e.g., James Manor, The Political Economy of Democratic Decentralization (Washington, D.C.: The World Bank, 1999); Richard C. Crook and James Manor, Democracy and Decentralisation in South Asia and West Africa: Participation, Accountability and Performance (Cambridge: Cambridge University Press, 1998).

[90] Imas Rosidawati Wiradirja, “Konsep Perlindungan Pengatahuan Tradisional Berdasarkan Asa Keadilan Melalui Sui Generis Intellectual Property System,” Jurnal Hukum IUS QUIA IUSTUM, 20(2) (April 2013), pp. 163-85.