Challenges for ASEAN interoperability: Lessons from research on cultural heritage protection in Indonesia

INTRODUCTION The commitments of custodian heritage communities contrast markedly with the philosophical bases of intellectual property. The latter are exclusive in nature, whereas the former are communal and inclusive. Accordingly, debates about intellectual property protection for the use of cultural heritage typically focus on whether it is appropriate to apply intellectual property law concepts to cultural heritage at all. This distinction also distills important challenges for the interoperability of intellectual property in the Association of Southeast Asian Nations (ASEAN) context. Within the interoperability agenda, it should not be assumed that the intellectual property system is suitable, or even relevant, for many of the people in the nations that comprise the ASEAN group. If it transpires that intellectual property rights have little or no salience to peoples’ worldviews, the promises of interoperability will never be fully realized. This chapter draws from my own research projects on cultural heritage in the Indonesian context with the aim of distilling some of the lessons learned about developing an appropriate protection system for Indonesian cultural heritage. My research on traditional knowledge and cultural heritage in Indonesia suggests that intellectual property may be quite irrelevant to the day-to-day lives of many people, and inconsistent with the belief systems that inform the worldviews of those responsible for significant amounts of creative work. Intellectual property regulations have existed in Indonesia ever since the era of the Dutch Indies. However, during that period intellectual property rules were not applicable to all strata of society, only to Europeans. As Afifah Kusumadara has noted, intellectual property laws are not laws originally developed by the Indonesian nation itself, and were not part of Indonesian customary law. As in many other jurisdictions, the Indonesian government has been under pressure to enact intellectual property laws that are consistent with international norms as a consequence of membership of the World Trade Organization (WTO). Failure to enact or adapt its intellectual property-related laws to the provisions of Trade-Related Aspects of Intellectual Property Rights (TRIPS) would have brought the consequence of trade sanctions being imposed on it. As a consequence of such practice of the transplantation of the law, the implementation of intellectual property laws in Indonesia faces numerous challenges. A key purpose of the research described in this chapter was to assess the way in which intellectual property actually impacted on the lives of artisans in local communities.