Sunday, October 4, 2009
For Indonesians - Myths and misconceptions surrounding property rights
"Patenting" Indonesia's cultural heritage is tempting, but it is not possible by law, and this is a widespread misconception. The so-called "public domain" of the Internet is a myth as it isn't true that everything posted on the Web is free for whatever purpose we wish. 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 that belong to the creators or owners of products of the mind, which immediately materialize at the moment of creation. Thus, registering them not required, but often times necessary for the purpose of producing legal evidence of the 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 a special monopoly for a limited time over usage and corresponding intangible benefits. The underlying philosophy is to respect creation and human knowledge, as well as foster creative and explorative interests.
Thus, do these rights last for eternity? Of course not.
In general, intellectual property rights are subject to copyright, trademarks, patents, industrial design rights, or are trade secrets. Indonesians confuse "copyrights" with "patents." We have heard and read about "let's patent [the] Indonesian cultural heritage so Malaysia wouldn't be able to claim [it]." 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 an inventor of scientific processes, instruments, or any improvements of them.
Since Indonesia ratified the 1886 Berne Convention in 1997, the definition of copyright also applies in Indonesia. Cultural heritage, such as dances, songs, poetry, batik motifs, musical instruments, and paintings belong to the "copyright" category.
Second, even with understanding that artistic endeavors belong to the realm of "copyright" instead of "patents," most of the Indonesian cultural heritage is centuries old and creator's "exclusive" rights do not apply.
Limitations over the term of copyright in Indonesia are regulated by Indonesian Copyrights Law article 14. For copyrights, the limit is 50 years after the death of the creator. In terms of "unknown creators," 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 in the public domain.
Chris Anderson in his impressive latest book entitled Free: The Future of Business posited that the Internet economy is "[the] free economy." It is true to a certain extent that providing free Internet-based services is a part of doing business nowadays, but this 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 the Creative Commons organization in 2001 reflecting urgent needs in advancing the Internet economy. These licenses regulate copyrights by releasing certain parts of copyrights for other creators who intend to develop ideas based upon their creations. They are basically "usage licenses," not a form of ownership transfer. In many open source applications, it is almost always that the creator must be credited in any developments or derivatives developed onward from the original idea.
Intellectual property rights are simple to understand. The key is respecting the originator of a creation. Because, how we respect the fruits of minds today is the key to the future.
Jennie S. Bev , San Diego
The writer is a columnist and the founder of an online university based in Silicon Valley. She can be found at JennieSBev.com.