By: Sonny Zulhuda
A close forum named Focus Group Discussion (FGD) on IPR and Open Data in the Digital Environment was recently held on 9th November 2018 at Al-Nawawi Conference Room, Ahmad Ibrahim Kuliyyah of Law, International Islamic University Malaysia (IIUM). The event was involving two universities from two countries which are the International Islamic University Malaysia (IIUM) and Universitas Padjadjaran (UNPAD), Indonesia.
In his welcoming remarks, the Dean of Ahmad Ibrahim Kuliyyah of Laws, Prof. Dato’ Sri Dr. Ashgar Ali Ali Mohamed extended his gratitude and warm welcome to the delegations from UNPAD. He believed that this two-way discussion should be conducted more regularly in promoting the intellectual discourse between two countries. In a reciprocal gesture, Prof Dr H Ahmad M. Ramli from the Faculty of Law, UNPAD in his keynote address appreciated the initiative by IIUM in conducting this group discussion.
This FGD was part of the research work under the Fundamental Research Grant Scheme, funded by the Ministry of Education, Malaysia. The group discussion was divided into 4 sessions, involving 11 speakers altogether; 7 from UNPAD and 4 from IIUM. Here are some excerpts:
Session 1: IPR Between Tradition and Innovation
Dr Miranda Risang Ayu from UNPAD talked about “The Protection of Cultural and Communal Intellectual Property: A Tension or Potency?”.
According to Dr Miranda, Intellectual Property is not only to protect the individual but also the community. She emphasized more on communal rights which grant exclusive rights based on territorial, origin and geographical indication. For example, In Indonesia, coffee and souvenir have been included as its Geographical Indication.
She also mentioned that the only way to protect the intellectual property is through digital documentation. The issue raised in Indonesia is most of its Traditional Knowledge (TK) and Traditional Culture Expression (TCE) are based on oral and it need to be documented as an evidence. The procedure to protect the oral tradition is to write them down, or by audio and video recording. Then, it will be evaluate by its legal sui generis means.
Dr Suzi Fadhilah Ismail from IIUM was invited to speak about “Traditional Knowledge Protection in Malaysia: Issues and Challenges”.
According to Dr Suzi Fadhilah, the main issue is which TCE need to be prioritize to be protected first. This is because of TCE often has conflict of interest on its holder, whether the owner of raw material, the manufacturer or the owner of the brands and ideas. She gave an example of ‘Merong Mahawangsa’ because there are some similarities in its character and story line with other epic story, but the owner cannot make so much profit out of it.
She added that TCE need more protection on the producer rather than community. For example in the case of John Bulun-Bulun design. The design has significant features of a drawing which include waterlilies, waterhole and geese. However, it was found out and produced by third party from other country and sold in Australia, the birth place of the owner, John Bulun-Bulun.
Dr Suzi also emphasized about the different between geographical indication and trademarks. In order to distinguish between geographical indication and trademarks, we need to look into their requirements. Trademarks are based on reputation of the goodwill to show its authenticity. Unlike trademarks, geographical indication is more general and lower the barrier of entry. For instance, protection for geographical indication for TCE such as Sabah Tea are based on its special characteristic and it is associated with the place. Therefore, the way forward is by looking into its potential under intergovernmental company to create database.
The 3rd speaker for Session 1, Laina Rafianti talked about “Tradition-based Performing Arts in the Digital Environment”.
In her presentation, Laina stated that TCE is based on Sui Generis protection. The example given is ‘La Galigo Ancient’ story, which involve performance rights. TCE is to protect the community by giving the protection to its performers. Thus, the producer is not the holder of the copyrights. Unfortunately, there are third parties who had republished the video and get more views compared to the original video uploaded by the producer. Therefore, tradition-based performance arts are protected under individual copyright. She added that, the use of TCE must consider the values that lives in the custodian of its community. The enhancement of TCE protection with respect to digital media by way of improvement of information technology capacity, better establishment of consent and contract in digital media, simplification on remuneration system for custodian, and the need of expanding collective management society range rather than music to give benefit for performers in Arts Performance such as dancers and performance art’s player.
During the 1st session, one PhD student from IIUM was asking a question on why do we need TCE protection as he think it is a way to restrict the people to enjoy it.In response to this question, Dr Miranda and Dr Suzi said, we need to refer back the philosophy of Intellectual Property that is to give the author benefit of enjoyment of his own work which have economical value. It is a proper recognition to the author or owner of the Intellectual Property. However, the benefit has its limitation, in order to avoid exploitation and the public can enjoy its value.
Session 2: E-Commerce, IPR and Trade Secrets
Dr Rika Ratna Permata from UNPAD talked about “The Implication of 3D Printings of IPRs in the Development of Creative Industry in Indonesia”.
According to Dr Rika, 3D printing gives the ability for others to duplicate any products from home. The advantage is it can minimize the cost of production. However, it can be a destructive technology. This is the example of digitalization, where people do not need to produce it manually, but it is computerize. Moreover, 3D printing has been increasingly use for commercial. As the consequences, there are so many unlawful production of products and this can be considered as an infringement of copyright and trademarks because the production done without any permission of the holder of the intellectual property. There are several ways to reduce or avoid counterfeit production, firstly by registering the work under copyright and trademarks, and secondly, develop specific regulation on 3D printing.
The next speaker, Helitha talked about “Protection Indication of Source in E-Commerce and Economic Growth For Local Community”.
The presentation was focus more on ‘Tenun Ikat Sumba’, a traditional clothes for women in Sumba community at West Nusa Tenggara, Indonesia. It has its own special characteristic features and the women of Sumba wear this traditional clothes during the sacred ceremony (or special ceremony). The clothes are produced in different way compared to normal clothes. The most significant about this clothe is its ‘Sumba Ikat’.
Recently, this traditional clothes has been found sold in electronic commerce. Thus, Indication of Source need more protection in the Internet commerce media by way of provide the product description correctly for product indication of origin, include the name of the product origin and the regional government need to declares their indication of sources through official websites and platforms owned by the government. By doing this, it will be a way of improving the economy of local community through the protection of the local products.
Assoc Prof Dr Juriah Abd Jalil also shared her research and views on the last topic for Session 2 titled “Criminalising Theft of Trade Secrets and Cyber Espionage in Malaysia”.
In her presentation, Dr Juriah mentioned that in Malaysia, there is no specific act to deal with Trade Secret. Even the common law only gives several remedies for it, but the number of legal suit is increasing. Third party try to get trade secret by spying, hacking or having employee as espionage. The issue raised is whether the company can prosecute them or not. This is because the law only provide the provision on stealing tangible property only, not including intangible property like intellectual property.
In Japan, the trade secret are protected under the unfair competition law which criminalizing 3 parties; the offender, the company who distribute and the seller. In the US, trade secret are protected and considered as National Security Agenda. Unlike Japan, Malaysia has opposite regulation which is competition law. Competition law is to promote competition, but it encourage the exploitation of rights. In providing civil remedies to protect the owner of the trade secret, Malaysia need specific law to govern it.
Another issue is whether we can regard the trade secret as national security agenda. However, breach of trade secret is not sufficient to be a threat to national security.
The speakers were asked by a student on the framework to resolve shared TCE which has more than one countries. In answering this question, the speaker was highlighted the importance of cooperation between the countries. It can be done by protecting it as intangible heritage and need to cooperate with an organization because it not involve economic rights.For instance, in history, Indonesia has been using Batik for a long time. However, in UNESCO, it describe Batik as Indication of Origin in other countries too, not only in Indonesia. In this case, Indonesia can apply geographical indication jointly with other nation.
Session 3: Content Economy: From Protection to Commercialization
Dr Ranti Fausa Maryana began the 3rd Session by giving a talk titled “Empowering Industrial Design: The Magical Transformation of Creative Economy into Creative Industry”.
She emphasized that Industrial Design can be as an instrument to transform the creative economy concept into the establishment of creative industries. There are three requirements of industrial design protection which are novelty, aesthetic impression and must be capable of mass production. In addition, creative economy and creative industries significantly contribute to youth employment as the generator of job and the tools to earn revenue to enhance socio-economic upgrading.
There are two purpose of the protection of industrial design. Firstly, in short term it generates greater revenue to business holder as the reward or remuneration. Secondly, in long term, it provides incentive to supply creative works in the future. The design plan on creative economy focus more on human empowerment.
However, the main constraint on this action is government financial situation. As the consequences, most of the creative industry business only capable to market their product locally. Fortunately, there is a solution to this problem when BEKRAF (Badan Ekonomi Kreatif Indonesia) recently introduced a framework for Investment Readiness level for the purpose of accessing investment readiness and anticipate technology life cycles at the same time. Thus, Indonesia can achieve creativity-based sustainable development and become weightless economy.
The discussion continued with the next speaker from IIUM, Dr Mahyuddin Bin Daud, who obtained his PhD on Cyber Law (Internet Content Regulation) from IIUM. Dr Mahyuddin discussed about topic titled “Content Regulation in Malaysia: Trends and Challenges”.
He explained that, by virtue of Section 124(e) of the Communications and Multimedia Act 1998 (CMA 1998), Malaysia embraces the self-regulation framework for Internet regulation. This is supplemented by the industry-driven Content Code, which further reiterates that content creators shall ensure no prohibited content to be published with intent to annoy, abuse, threaten or harass anyone. The CMA 1998 alongside with other recent legislations such as the Anti-Fake News Act 1998 employs the extra-territorial application and enforcement to ensure its regulatory net is wide enough to cover incidents occurring beyond Malaysian jurisdiction – taking note that Internet goes beyond geographical borders.
There are several issues and challenges of Internet in Malaysia, which are legal content, self-regulation framework, pornography, online fake news, no active duty to monitor the Internet for ISP (basically it based on the complaint), and the Internet is not required to develop content classification. The suggested way to resolve these issues are the government need to provide affordable high-speed broadband, uphold the internet freedom (with an exception of illegal content) and protection of national values according to vision 2020.
The 3rd speaker for Session 3, Tasya Safiranita was talked about the topic titled “Commercialisation of Copyright Content in the Over Top Media”.
According to Tasya Safiranita, Over The Top (OTT) is a service with content in the form of data, information or multimedia that runs through internet network. It can be said also OTT service is “ride” because it is operating on the internet network owned by a telecommunications operator.In this case copyright has a special role to protect on the internet media, but in fact some examples of companies in the service OTT is Facebook, Twitter, Youtube, Viber, and others. OTT service companies such as WhatsApp and others generally do not have any form of official cooperation with telecommunication providers. Based on this, communication technology is demanded and leads to efficiency boundaries of territory unimpeded by state borders, without time constraints. A lot of effort to be done and these are way forward for the betterment of OTT media.
There was a question raised by IIUM student during the Question and Answer session for Session 3 on how the implementation of Self-Regulationworks in Malaysia and is there a need for a company to give cooperation? In answering this question, Dr Mahyuddin Daud said that, self-regulation in Malaysian flavor, everybody abides to the code. In addition, the Multimedia Commission hold the license of all ISPs. They expect that everybody follows the rules, if not, the license will be taken or fine will be imposed. Commission and government agencies reach the public through awareness campaign.
Session 4: Open Data and Privacy Protection
Assoc. Prof Dr. Sinta Dewi Rosadi chose the topic “Privacy Protection in Indonesia: A Crossroad between Protection and Innovation”. She emphasized more on data protection where it is OK to collect the data with the permission and acknowledgment by the consumer, as long as the data will not be misused and manipulated from their original purposes. All consumers have rights to know the purpose of their database being used. Indonesia have to follow International guideline for data protection regulation, so the standard for privacy protection is more likely similar with other countries.
The last speaker, Assoc. Prof. Dr. Sonny Zulhuda, the prominent scholar in Cyber Law talked about on “Why Personal Data Protection Law is Critical for Governance and Transparency”. In Malaysia, Personal Data Protection law has been enforced in 2010. There are provisions in the Act which provide the consent of the data subject, the purpose of data collection, disclosure and the retention that data. Recently, Malaysia need to follow some of the guideline in GDPR because of the incident where Malaysia indirectly had collected the data of European citizen.
Dr Sonny also mentioned that even though Malaysia has Personal Data Protection Act 2010, but the act is only applicable and enforceable to all individuals and entities in Malaysia except the government. He also stressed that maybe Indonesia should not repeat the same mistake done by Malaysia and the Personal Data Protection in Indonesia must include the government so that the scope of data protection will be widen and fully covered.
The discussion ended at 12.45pm. Despite the time constraints, we have had a fruitful discussion on various topic presented by all speakers pertaining to Intellectual Property Rights and Open Data in Digital Environment between Malaysia and Indonesia. We believe that a lot of effort need to be done in order to enhance the protection of rights in digital era. The development of law should be in line with the rapid growth of digital environment so that it can cater the protection needs of the peoples as well as companies.
It is a hope that Ahmad Ibrahim Kuliyyah of Laws will continue to organize this type of discussion in the future which will benefit a lot people especially the IIUM research group, students as well as the community.
I credit my Postgraduate students Nur AdlinHanisah Binti Shahul Ikram and Mohamad Husaini Bin Hussein for initially providing this report.