TRADITIONAL MARINE GOVERNANCE OF INDIGENOUS COMMUNITIES ON KEI KECIL ISLAND (SASI) AS AN OBJECT OF TRADITIONAL KNOWLEDGE PROTECTION

TRADITIONAL MARINE GOVERNANCE OF INDIGENOUS COMMUNITIES ON KEI KECIL ISLAND (SASI) AS A PROTECTED OBJECT TRADITIONAL KNOWLEDGE[1]

 

Theresia NA Narwadan

(teaching staff of the Faculty of Law, Universitas Pattimura, Ambon, bijrell@yahoo.com)

 

Abstract

The purpose of law is to create order in society. Individual interests are always in conflict with one another, and it is the law that regulates the fulfillment of each interest without harming others. The Unitary State of the Republic of Indonesia, with its more than 17.000 islands, spread from Sabang to Merauke, is certainly not immune to legal conflicts.

            Approximately 350.000.000 of the world's population are indigenous peoples (indigenous people). Referring to the formulation of the United Nations, they are called indigenous because the roots of their lives are inseparably linked to the land and territory where they live, or will live (in the sense of returning to the territory after experiencing marginalization or forced eviction).[2] Kei Kecil Island, located in Southeast Maluku Regency, Maluku Province, also has an indigenous community.

            Traditional knowledge is knowledge that is held by a group of people from generation to generation, including songs; food processing, dances, folk tales, and also natural resource management. Sasi, as a marine management system practiced by the indigenous people of Kei Kecil Island, is an example of this. Traditional KnowledgeEssentially, sasi is a system or pattern for regulating the use of marine areas, established and established based on the experiences of the people of Kei Kecil Island. This marine governance system aims not only to meet the needs of the local indigenous community but also to ensure their survival.

            The current problem is that Indonesia has thousands of residents who are categorized as indigenous peoples, but until now, even though Indonesia has had a Copyright Law that recognizes some of the works of indigenous peoples as objects of protection, the Copyright Law only regulates individual ownership, and not communal ownership. In addition, the term of copyright ownership in the Copyright Law is limited in time, so what about the protection of the works of indigenous peoples such as Sasi which are communally owned and passed down from generation to generation, can the law also protect them?

Keywords: indigenous peoples, objects traditional knowledge.

 

PRELIMINARY

            The purpose of establishing law is to create order in society, because the interests of each individual are always in conflict with each other, and it is the law that regulates so that the fulfillment of each interest can be met without harming other parties. The Unitary State of the Republic of Indonesia, which has islands spread from Sabang to Merauke, is certainly not free from legal conflicts. As a vast country with island ownership reaching 17.508 (seventeen thousand five hundred and eight) islands, and a population exceeding 200.000.000 (two hundred million) people, makes Indonesia rich in traditional culture, which is a form of intellectual work of society that develops and then preserves its existence.

Likewise, Maluku. As an archipelago province with a highly diverse culture, Maluku possesses a wealth of traditional knowledge, such as the art of boatbuilding; traditional land and sea management, known as sasi, as one way indigenous Maluku communities preserve their natural surroundings; woven fabrics; walut (walut), techniques for processing sago into various snacks, and so on.

            The indigenous people of Kei Kecil Island are one of the tribes living in Maluku Province. Kei Kecil Island is located in Maluku Province and is administratively part of the Southeast Maluku Regency. Researchers and other surrounding tribes know them as the Kei people or Southeast people, but they themselves identify as the Kei people. Evav.

Regarding the meaning of Sasi itself, it literally means prohibition. In general, Sasi is a legal provision prohibiting entry, taking, or doing something in a certain area, and for a certain period of time. The determination of the time period is closely related to the needs of the local indigenous community, the harvest season, and the season. Although the Sasi period is determined according to the harvest season, Sasi can be opened before the previously agreed time, if a village requires funds for village development. Likewise, the opening time of Sasi can be postponed, because a village does not yet need funds. The Sasi system was discovered and established based on the experience of the indigenous people of Kei Kecil Island themselves inhabiting the area where they collect, process, and preserve the natural resources found in the area.

            Sasi is not only related to the economic aspects of marine resources, but Sasi is also a traditional knowledge from the indigenous people of Kei Kecil Island as a traditional form of protection of marine resources from exploitation that can damage them. The indigenous people of Kei Kecil Island practice sasi, based on the Kei people's perspective on the environment and natural resources around them. The indigenous people of Kei Kecil Island believe that this world always has two sides, there is life and death; not only is there God in every step of their lives, but there are also ancestral spirits who always watch over them and must be respected. The sea, believed to be one of the places of ancestors, so the sea must be preserved to honor the ancestors. This view may be difficult for modern society to accept with common sense, but in reality, it is how this still simple indigenous people maintain their marine resources from extinction.

DISCUSSION

            Before discussing intellectual property rights and traditional knowledge, we will first define each term. Rights are something that can be defended. Property, according to law, is anything owned by a person, both tangible and intangible. Intellectual property is the product of human thought. 

Substantively, the definition of intellectual property rights can be described as property rights that arise or are born from human intellectual ability. Intellectual property rights are categorized as property because they ultimately produce intellectual works in the form of: science; art; literature; technology, all of which require sacrifice of energy, time, money, and thought. These sacrifices give these intellectual works their value.

            Traditional knowledge (traditional knowledge) Traditional knowledge is defined as knowledge possessed by a group of people referring to a wide range of knowledge, and is not limited to a particular field, for example, it can be knowledge about food processing and medicine; natural resource management; songs; poetry; dance; folk tales; handicrafts; and other community arts and cultures. What distinguishes traditional knowledge from other intellectual works is that traditional knowledge originates from customary law communities that live communally and its preservation is carried out from one generation to the next, so that ownership of this traditional knowledge is also collective.

            Theoretically, this traditional knowledge can be protected. There are two mechanisms available to protect traditional knowledge: legal protection and non-legal protection. Legal protection is provided by the state, for example, through the creation of binding regulations, such as legislation concerning traditional knowledge. Non-legal protection, on the other hand, can be provided by non-governmental organizations, religious institutions, or individuals through educational activities regarding traditional knowledge.

            Traditional Knowledge This traditional knowledge must be protected because it is crucial to the identity of an indigenous community. It is an innovation, creation, and cultural expression produced and maintained from generation to generation by an indigenous community. Indonesia, particularly Maluku Province, is rich in this traditional knowledge, including knowledge of traditional medicine, management of natural resources, both marine and terrestrial, and other forms of artistic creation. Traditional knowledge not only can it be a source of inspiration in developing modern innovations, but by preserving traditional knowledge then we have also helped maintain the existence of an indigenous community. Therefore, the existence of traditional knowledge need to receive proper recognition and protection in the legal system.

            However, the current problem is that Indonesia has thousands of residents who are categorized as indigenous peoples, but until now even though Indonesia has Law number 19 of 2002 concerning Copyright which recognizes some of the works of indigenous peoples as objects of protection, the Copyright Law only regulates individual ownership, and not collective ownership. In addition, the term of copyright ownership in the Copyright Law is limited in time, then what about the protection of the works of indigenous peoples such as Sasi which are passed down from generation to generation and owned collectively, can the law also protect them?

Protection in intellectual property rights is more focused on protection

individual, but to balance individual interests with the interests of society, the intellectual property rights system is based on the following principles:

a.       The principle of justice (the principle of natural justice)

The creator of a work, or another person who works to produce results from their intellectual abilities, deserves to receive compensation. This compensation can be material or non-material, such as a sense of security due to protection and recognition for their work. The indigenous people of Kei Kecil Island have created a marine governance system to protect the sea from excessive exploitation, so it is only right that the indigenous people of Kei Kecil Island are recognized as the owners of the Sasi. Recognition as owners is a reward for the indigenous people of Kei Kecil Island. The law provides this protection for the benefit of the creator in the form of a power to act in the framework of their interests, this protection is called rights.

 

b.      Principles of culture (the culture principle)

We conceptualize that human work is essentially aimed at enabling life, and that from that work a movement of life will arise that must produce more work. Recognition of human creations, works, ideas, and inventions in the field of natural resource management, which are standardized in the intellectual property system, is an effort that cannot be separated from the realization of an atmosphere that is able to arouse enthusiasm and interest to encourage the birth of new creations, in order to maintain the sustainability of nature from extinction.

           

            Apart from the two principles above, there are also several theories that can be used as a basis for protection traditional knowledge. These theories are:

a.      Natural Right Theory

This theory is based on natural law. According to Natural Right Theory, by nature, humans are moral agents. Humans are mental substances and have rights, and the human body itself is actually the wealth of the human being in question.[3] The most important thing inherent in humans is their freedom. With this freedom, humans are free to do whatever they want. However, this freedom is not absolute; it is still bound by morality and the freedoms shared by others. Freedom allows humans to be creative in managing their lives, utilizing their minds to create something useful for themselves and for many others. This effort to utilize the brain's work is what produces a creation, and then naturally belongs to the Creator. The Creator has the right to utilize it, whether economically, socially, or culturally. Conversely, others are obliged to respect these rights. From this explanation, it can be concluded that if a work is useful for the lives of many people, then it is only right that the creator of that work reaps the benefits of their creation. A creator is not only an individual, but a Creator can also be a group of people. Most importantly, the resulting work can be useful for the benefit of humanity, so creators, both individuals and groups, deserve protection.

 

b.      Labor Theory

If on Natural Right Theory emphasis on human freedom to act and do things, then on Labor theory the emphasis is on the process aspect of producing something and what is produced.[4] All humans have brains, but not all humans are able to utilize their brain functions to produce something. A person produces something because they are motivated to achieve. This means that producing a work is not automatic, but rather through mandatory stages. The creative process results in power (rights) over the creation. In other words, others may not claim the creation of others, and the Creator must be given legal protection. Likewise, Sasi, as a form of traditional marine governance, was not automatically discovered by the indigenous people of Kei Kecil Island. Sasi has been practiced by the indigenous people of Kei Kecil Island since ancient times until today. This is evident from the poem that has been passed down orally since ancient times, the verse reads:[5]:

 

Itdok fo ohoi itmian fo nuhu

Itdok itdid kuwat dokwain itwivnon itdid mimiir

Itwarnon afa ahoi nuhu enhov ni customary law

Itwait teblo uban ruran

Ikbo customary law enfangnan enbatang haraang

Nit yamad ubudtaran, nusid teod erhoverbatang fangnan

Duad engfangnan wuk

 

We inhabit villages where we live and eat from the land

We take our place and keep what is ours.

We shoulder all the interests of our village with its customary laws

We live as honestly as possible and keep walking straight ahead.

In this way, custom will protect us

So that our ancestors will also take care of us

And God will bless us.

The poem that is the basis of the customary law of the people of Kei Kecil Island is proof that Sasi was created through a process and therefore deserves legal protection.

 

c.       Social Exchange Theory

According to this theory, creators need to receive compensation for the work they have produced.[6] Others may benefit from the work, but they must also give something back to the creator. A kind of exchange takes place, a mutually beneficial relationship. The creator will feel appreciated for their work and efforts, thus motivating them to produce more useful works. For the indigenous people of Kei Kecil Island, compensation is not necessarily monetary. Recognition of their work is enough to make them feel recognized.

 

d.      Functional Theory

This theory is based on the principle that states that all social structures or priorities lead to integration and adaptation of the existing system.[7] In order to fulfill their needs, people strive to be more creative in processing their resources, both natural and human resources, by producing new creations. In line with the concept of system integration and adaptation believed in by functional theory, the creation must be functional in the life of society. This means that the creation must make a positive contribution to the social system, and not weaken the integration of the existing system or society. Creations that have a negative impact on society are not worthy of protection, because one of the requirements for protection of Intellectual Property Rights is that they must be useful (functional) for humans. Sasi as a marine governance system aims not only to gain economic benefits from the sea as a source of life for the people of Kei Kecil Island, but Sasi also functions as a tool to preserve these marine resources. A tool to preserve marine resources, because in Sasi there is a prohibition on taking marine products within a certain period, how marine products can be taken without damaging the surrounding ecosystem, and sanctions for members of the customary law community who violate the rules of this Sasi.

 

After we have discussed the general principles in legal science, and the theories known in protection traditional knowledge, it would be good if we also took a moment to look at some universal principles known in the protection of traditional knowledge. These principles are:

 

a.       Principles of legal protection of works traditional knowledge

The law only protects creators who, using their intellectual power, produce an original work that has never existed before. Originality is the most important requirement for intellectual property rights.

b.      The principle of balance of rights and obligations

The law regulates various interests related to traditional knowledge fairly and proportionally, so that no party feels their interests are being harmed. Intellectual property rights, which are based on individualism, must be balanced with a commitment to the public interest (communalism). Therefore, the law must also provide protection to customary law communities that live communally.

 

c.       The principle of justice

Intellectual property rights laws must protect the interests of creators. Furthermore, they must not result in losses for the wider community. The indigenous legal community on Kei Kecil Island did not demand that the state provide monetary compensation for traditional knowledge For indigenous peoples, recognition of their existence as citizens of the Republic of Indonesia is sufficient.

 

d.      Principles of economic and moral protection

The creation of intellectual works requires time, intellectual creativity, facilities, considerable costs, and dedication. Intellectual works have significant economic value. Therefore, creators must be legally guaranteed the economic benefits of their work. Furthermore, creators are also protected by moral rights, namely the right to be recognized as the creator of an intellectual work. One form of moral rights protection is the inclusion of the creator's name on every work they produce. This is not yet common in Indonesia.

 

e.       Principles of morality

Morality in the protection of intellectual property rights encompasses intellectual honesty. Intellectual works produced must not conflict with human morality. Sasi is not a work that conflicts with morality. Instead, it upholds morality and strives to preserve nature, even in simple ways.

 

CONCLUSION

From the simple explanation above, it can be concluded that:

1.      The collective ownership system is not something that violates legal principles;

2.      Protection of a work is not only limited by the time specified in a law, but legal rules also open up the opportunity for a work to be protected without a time limit, as long as the public interest requires it.

 

 

 

REFERENCES

1.      Bosko, Rafael Edy. 2006. Indigenous Peoples' Rights in the Context of Natural Resource Management. Elsam. Jakarta.

2.      Daulay, Zainul. 2011. Traditional Knowledge Concepts, Legal Basis, and Practice. Rajawali Press. Jakarta.

3.      Irawan, Candra. 2011. Indonesian Intellectual Property Rights Law Policy. Mandar Maju. Bandung.

4.      Kelsen, Hans. 1978. Pure Legal Theory: The Basics of Normative Legal Science. Nusa Media. Bandung.

5.      Margono, Suyud. 2003. Law and Copyright Protection. CV Novindo Pustaka Mandiri. Jakarta.

6.      Rahail, JP 1995. Bat Batang Fitroa Fitnangan Traditional Land and Sea Use of Kei. Sejati Foundation. Jakarta.

7.      Rachmawaty. 2011. Larvul Ngabal An Element of the Peak of Kei Cultural Resilience. The Sentinel: Research and Publication Syndicate.