Reconstruction Law on Used of Surakarta Sunanate TCES in Indonesia based on Dignified Justice

Ariy Khaerudin, Teguh Prasetyo, Anis Mashdurohatun and Rehnalemkem Ginting

Protection to the utilization of Traditional Cultural Expressions (TCEs) of Sunanate Surakarta, from commodification and commercialization which are increasingly exploitative, misused and not dignified by not “ngewongke wong” and leaving the existing values, has not been strictly regulated in the legislation. There are philosophical, juridical and sociological problems need to be improved. The aim of this study is to find existing of laws that lead injustice for Indigenous People and then to construct it based on dignified justice. Method for this research based on a juridical-normative with statute approach, comparative approach to understand TCEs rules from different perspectives and synchronization of law. Legal materials are constitution of Indonesia and TCEs legislation, include the draft law on Protection of Traditional knowledge and Traditional Cultural Expression. The result of study are first, the Copyright Act article 38 as the holder of “TCEs Right” not as “copyright holder” because it can be misconception, mention indigenous people as a holder of the right, and utilization of TCEs should be ruled by legislation. Second, the trademark and geographical indication Act that ministry can abolished trademark that infringement TCEs not just as “same of or similarity” but “consist of”. Then in Law No. 23/2014 on the Regional Government have to change concurrent authority that regional government can be positively protect TCEs not only perform preservation. The regulation on the use of TCEs can be done with regulations both in the IP and Non IP system (Azerbaijan, Zambia and Kenya) harmoniously. Utilization of TCEs, if based on a theory of dignified justice, should be “ngewongke wong”. Appreciation to the entities of the Sunanate Surakarta as the rights holders should be explicitly protected in a dignified manner.

Volume 12 | 08-Special Issue

Pages: 45-49

DOI: 10.5373/JARDCS/V12SP8/20202500