Creative Commons has a clear future in Indonesia.

A video activist at Camp Sambel, Malang, 2010 Photo: Heidi ArbuckleOver the last decade, conflicts between Indonesia and Malaysia have been increasing over who ‘owns’ a number of shared cultural products and practices, such as the kebaya, dangdut, batik, reog – even tempe. Both nations claim them, sometimes exclusively, as part of their national heritage. In Indonesia, anxiety around the ‘Malaysian menace’ has led some to call for intellectual property of culture to be more stringently defended. But when is the mixing of culture a threat and when is it the natural collaboration that comes through overlapping and shifting boundaries?

Ambiguity around the ownership of culture is nothing new. The flow of literatures, folklores, and performance is disordered and rarely stays within the borders of nations. In their digital form, cultural products are even more difficult to tie down. The internet has changed everything, speeding up these flows and presenting new challenges for tracking and maintaining copyright.

Creative Commons, a global licensing system that began in 2001, provides a free, public and standardised infrastructure that creates a balance between the reality of the internet and the reality of copyright laws. Copyright was created long before the emergence of the internet, and can make it hard to legally perform actions that we take for granted on the network: copy, paste, edit, source and post to the web. The default setting of copyright law requires all of these actions to have explicit permission, granted in advance, whether you’re an artist, a teacher, a scientist, a librarian, a policymaker or just a regular user.

In Indonesia, developments in technology occur very quickly. Indonesian is already one of the most commonly used languages in the blogosphere and Indonesians constitute one of the largest national groups of facebook users. With no real history of intellectual copyright enforcement, very few Indonesian internet users acquire permission before sharing digital culture.

The right to create

There is a particular history to intellectual copyright in Indonesia, which begins with ‘adat’ (traditional law) approaches to property and includes interpretation by the new nation in the 1950s. The term ‘hak cipta’ (the Indonesian word for ‘copyright’), which literally means ‘the right to create’, was coined in 1951 in Bandung, as a part of Kongres Kebudayaan Indonesia. At this conference, cultural artefacts were viewed as co-modifiable products for the construction of national identity, as they were throughout the formative years of the newly independent Republic of Indonesia. The term was invented as a replacement for ‘hak pengarang’, a derivative of the Dutch legal product called auteursrecht (‘author’s right’).

As a former colony, Indonesia inherited its membership at the Berne Convention for the Protection of Literary and Artistic Works from the Netherlands, which has been a formal member since 1912. But In 1958 the Indonesian government withdrew from the treaty in order to ‘develop the national identity of the newly born country without the restriction of knowledge, particularly through translated works’. This decision unleashed a massive surge of cultural production, particularly in the local popular music industry. The music scene in Indonesia thrived through various modes of copying and repurposing of Western songs. So great was the level of commercial piracy in the cultural industry that Irish folk musician Bob Geldof criticised Indonesia in the media after learning that his ‘Live Aid Concert for Ethiopia’ had been illegally distributed in the international market with a ‘made in Indonesia’ label. He had never recorded there.

Foreign pressure for the state to ratify the international law on copyright escalated in 1986 when the US government threatened to remove Indonesia’s exporting privileges if it did not enforce intellectual property law. This threat prompted the most rapid turnover in the country’s legislative history. Between 1982 and 2002, the Indonesian Copyright Bill was amended three times, each time in response to foreign pressure, particularly from the US. In its current form, the bill mirrors general copyright law, prohibiting unlicensed ‘sharing’ during the lifetime of the creator and for another 50 years.

In reality, however, copyright exists only on paper in Indonesia. The state has signed up to various copyright protection schemes such as the Universal Copyright Convention and the Agreement on Trade Related Aspects of Intellectual Property Rights with the World Trade Organisation, and has renewed its membership of the Berne Convention in 1997. But implementation is fraught with contradictions and vulnerable to internal power plays. Under the New Order regime, for instance, crackdowns on piracy were complicated by its agenda or by political censorship. The government manipulated the laws in its campaign to prevent the distribution of pirated videocassettes in the mid-1980s, claiming the intention to protect Indonesian cultural identity from ‘unwanted foreign influences’, but also ensuring that political content was controlled.

During the Reformasi period, successive governments made more amendments to Indonesia’s Copyright Law, which was finally passed in 2003. But there remain serious incongruities between what has been legislated nationally and what is being implemented at the local level. Embedded in this set of problems are arguments about whether copyright enforcement is the most effective way to distribute knowledge if the objective is to promote economic development. Many producers believe that top-down systems of intellectual property actually widen existing gaps in knowledge, leading to increased piracy, particularly of digital content. Such relationships warrant a more complex discussion of intellectual property than one focusing on its legal aspects alone, and introduce the possibility of a Creative Commons system in Indonesia.