THE FULFILLMENT OF ECONOMIC AND MORAL RIGHTS OF INDIGENOUS PEOPLES ON TRADITIONAL KNOWLEDGE AND TRADITIONAL CULTURAL EXPRESSIONS THROUGH INDONESIA'S TPR's SYSTEM

Dwi Martini

Abstract


Economy and moral rights are the part of basic human rights entitled to the proprietor of the
intellectual property that must be full filed by the state, to meet the requirements of Constitution.
Similar treatment must be provided by the state to economic and moral rights of indigenous
peoples on their own Intellectual Property, in the form of Traditional Knowledge and Traditional
Cultural expressions as described in Article 18 b of the Constitution of 1945 “The state recognizes
and respects the customary law community units including their traditional rights as long as it
exists and in accordance to society development and principles of Unitary State of The Republic
of Indonesia, as stated by the Law.”. Fulfilment of these rights through modern TRIPs-WTO
IPRs regime brings about legal problems, considering their different character, where individual
and commercial character of modern IPRs contradicts the communal and non-commercial
character of Traditional Knowledge and Traditional Cultural Expression. On the other hand,
to get modern IPRs protection, Traditional Knowledge and Traditional Cultural Expression
must meet particular conditions such as originality/ novelty, inventive step and applicable to
industry which indeed unable to fill due to its anonymous inventor, developed and bequeathed
from generation to generation and is not intended specifically for industrial/commercial purpose.
Keywords: Rights, Indigenous Peoples

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Economy and moral rights are the part of basic human rights entitled to the proprietor of the

intellectual property that must be full filed by the state, to meet the requirements of Constitution.

Similar treatment must be provided by the state to economic and moral rights of indigenous

peoples on their own Intellectual Property, in the form of Traditional Knowledge and Traditional

Cultural expressions as described in Article 18 b of the Constitution of 1945 “The state recognizes

and respects the customary law community units including their traditional rights as long as it

exists and in accordance to society development and principles of Unitary State of The Republic

of Indonesia, as stated by the Law.”. Fulfilment of these rights through modern TRIPs-WTO

IPRs regime brings about legal problems, considering their different character, where individual

and commercial character of modern IPRs contradicts the communal and non-commercial

character of Traditional Knowledge and Traditional Cultural Expression. On the other hand,

to get modern IPRs protection, Traditional Knowledge and Traditional Cultural Expression

must meet particular conditions such as originality/ novelty, inventive step and applicable to

industry which indeed unable to fill due to its anonymous inventor, developed and bequeathed

from generation to generation and is not intended specifically for industrial/commercial purpose.

Keywords: Rights, Indigenous Peoples




DOI: http://dx.doi.org/10.12345/ius.v2i6.181

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