Universitas Brawijaya, Kota Malang, Indonesia
Article 38(1) of Indonesia’s Copyright Law (Law No. 28 of 2014) vests authority over Traditional Cultural Expressions (TCEs) in the state through the phrase “held by the state,” yet leaves the scope of that authority, the protective principle, and benefit-sharing mechanisms undefined. This ambiguity exposes traditional batik motifs to misappropriation, including foreign claims and culturally inappropriate commercial use. Using normative-juridical analysis with statutory, conceptual, comparative, and teleological approaches, this study reconstructs the phrase as public trusteeship rather than ownership or administrative control. Constitutional jurisprudence and international instruments—the UNESCO Convention, UNDRIP, the Nagoya Protocol, FPIC, and ABS—converge on a participatory, benefit-oriented state role. The study proposes Enabling Protection: a hybrid framework recasting state authority toward facilitative stewardship, combining defensive registration with custodial empowerment through FPIC and ABS.
Batik is one of Indonesia’s most significant traditional cultural forms. Its documented origins are traceable at least to the tenth century through the Gulunggung inscription of 929 CE, which records processes of cloth-making (Sulasiah, 2024; Yuliati, 2010). What began as a courtly craft has become a globally recognised cultural symbol; UNESCO inscribed Indonesian batik on the Representative List of the Intangible Cultural Heritage (ICH) of Humanity in 2009. That recognition confirms its status as a Traditional Cultural Expression (TCE)—a cultural inheritance transmitted across generations and freighted with spiritual symbolism, philosophical meaning, and social value (Asri, 2018; Baskoro & Hafizhah, 2023).
Individual traditional batik motifs carry profound normative significance. The Parang Rusak motif, traditionally attributed to Panembahan Senopati and designated by Sultan Hamengku Buwono I as a forbidden motif (awisan dalem) in 1785, symbolises leadership, authority, and royal power, and was historically reserved for the nobility (Quddus et al., 2025). The Kawung motif represents wisdom and equilibrium (Hastangka, 2013), while Udan Liris denotes prosperity and fertility. Within the Surakarta court context (Ditha et al., 2022), specific motifs were regulated through the Maklumat Solo and the Serat Tatakrama Kedhaton, a manuscript dated 1788–1820 that prescribes dress codes for palace servants according to rank and function (Eskak & Susanto, 2021). These motifs are not merely decorative; they function as normative-ritual systems recognised under living customary law (Haar, 1976).
Despite this cultural depth, traditional batik motifs are increasingly vulnerable. Data from the Directorate General of Intellectual Property (DJKI) show that, of 2,335 registered Communal Intellectual Property (CIP) records, 1,338 (59%) are classified as TCEs (Yatini, 2021), yet existing legal protection remains inadequate. Several recent incidents demonstrate the acute protection gap. In July 2020, China’s Xinhua News claimed batik as a traditional Chinese craft (Putra, 2022); the Indonesian footwear brand Brodo used the sacred Parang Rusak motif on shoe soles, in clear violation of customary norms (Nariswari & Wisnubrata, 2021); and a French national obtained copyright registration (No. 030376) over a Balinese flower motif, then used the registration to sue authentic Balinese silver artisans (Paramisuari & Purwani, 2018). Indonesia thus possesses a legal framework that fails to protect its custodians—a paradoxical formalism that this study seeks to diagnose and remedy.
Article 38(1) of Law No. 28 of 2014 provides that “[c]opyright on Traditional Cultural Expressions is held by the State.” The provision is intended to signal state responsibility for protection, but it does not specify the scope of that authority. It is not clear whether “held” denotes administrative control, representative authority as guardian, or legal authority akin to material ownership (Widyanti, 2021). Three competing readings remain plausible—full ownership (dominium), administrative control (beheersdaad), or trusteeship (public trust)—and the legislator has supplied no metric for choosing among them. The result is legal uncertainty that harms custodians by casting the state as a “holder” without any corresponding obligation to return benefits to those who create and preserve cultural value.
Existing Indonesian scholarship on TCE protection operates predominantly within a defensive paradigm focused on preventing foreign claims through registration and documentation. Sakul (2020) examines the international-law dimensions of copyright protection for batik, while Yulia (2023) analyses CIP within the national legal system from a customary-law perspective. Neither study addresses the more fundamental question identified here: does the existing framework actually produce benefits for custodians? The present study identifies a critical theoretical gap—the absence of an enabling dimension in the current architecture—and conceptualises Enabling Protection as a necessary complement to existing defensive approaches.
Within international scholarship, similar concerns have animated several strands of analysis on which the present study explicitly builds. Drahos (2014) characterises post-colonial intellectual property regimes for indigenous knowledge as “extractive,” arguing that symbolic recognition without substantive entitlement reproduces the very vulnerabilities that protection purports to redress. Coombe (1998) frames cultural property as relational rather than proprietary, emphasising the dialogic processes by which communities sustain meaning. Carpenter, Katyal, and Riley (2009) offer the most influential alternative architecture in recent property scholarship: a “stewardship model of property” grounded in peoplehood, in which non-owners hold fiduciary obligations toward cultural resources. Antons (2009) maps the variety of Asia-Pacific approaches to TCE protection and identifies the recurring challenge of reconciling state administration with community authority. Dutfield (2004) and Yu (2008) analyse the limits of conventional intellectual property doctrines as applied to traditional knowledge and intangible heritage, while Forsyth (2013) and Graber (2012) examine implementation gaps in sui generis regimes. These literatures inform the analysis that follows, but, as yet, they have not been systematically brought to bear on Article 38(1) of Indonesia’s Copyright Law.
Against this background, the study formulates three research questions. First, what is the proper meaning of the phrase “held by the state” in Article 38(1) of the Copyright Law within a benefit-oriented protection framework? Second, what legal principles govern state authority—under both national law and international conventions—over the TCE of traditional batik motifs? Third, what is the ideal legal protection model for traditional batik motifs that are “held by the state” so as to deliver benefits to the Indonesian nation?
This study employs a juridical-normative research design, supported by a limited set of qualitative empirical materials used solely to enrich interpretive context. Four interrelated approaches structure the analysis. The statutory approach analyses regulations governing the protection of TCEs hierarchically, beginning with the 1945 Constitution as the superior norm and proceeding to relevant international instruments—the 2003 UNESCO Convention, the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), and the 2010 Nagoya Protocol—together with implementing national legislation. The conceptual approach examines the doctrinal constructs that underlie state authority over communal cultural resources: dominium, beheersdaad, the public trust doctrine, FPIC, and ABS. The comparative approach is described separately below. The teleological approach interprets norms in light of the philosophical and social objectives that the legislator pursued (Marzuki, 2017).
The comparative approach merits explicit methodological justification, as the reviewers correctly emphasised. The selection of comparators rests on four criteria: (i) representation of distinct protection logics rather than mere descriptive variation—namely, defensive documentation, participatory institutional architecture, sui generis registration with prior informed consent, and regional model legislation; (ii) availability of evaluative scholarly literature sufficient to support analytical rather than descriptive comparison; (iii) operational maturity, in the sense that the regime has produced observable implementation outcomes; and (iv) relevance to Indonesia’s legal-cultural setting, whether through civil-law tradition (Peru) or through shared regional and intangible-heritage concerns (Thailand, the Pacific). Four comparators were chosen on these criteria: India (defensive—TKDL combined with the Biological Diversity Act 2002), Thailand (participatory institutional—the 2016 ICH Act and the national commission), Peru (sui generis—Law 27,811 of 2002 with collective-knowledge registry and prior informed consent), and the Pacific Model Law 2002 (regional framework introducing “Traditional Cultural Rights” and a Cultural Authority). The four comparators jointly map the protection logics most relevant to the reconstruction of Article 38(1) proposed in this study.
The legal materials used in this study comprise three categories. Primary legal materials include the 1945 Constitution, Law No. 28 of 2014 on Copyright, Law No. 5 of 2017 on the Advancement of Culture, the relevant Constitutional Court decisions, and the international instruments listed above. Secondary legal materials include legal textbooks, peer-reviewed journal articles, expert opinions, and official documents of international bodies such as the World Intellectual Property Organization (WIPO) and UNESCO. Tertiary legal materials include reference works and qualitative empirical inputs used to enrich interpretive context.
Two qualitative empirical inputs supplement the doctrinal analysis. The first is a single semi-structured key-informant interview conducted in 2025 with Mr. Iqbal, Secretary of the Policy Formulation Team of the DJKI, in his official capacity. The interview, lasting approximately ninety minutes, addressed the administrative interpretation of the phrase “held by the state,” the role of custodial communities in the CIP inventory process, and the procedural status of the National Inventory of Communal Intellectual Property under Government Regulation No. 56 of 2022. The transcript was coded thematically using descriptive coding followed by axial categorisation, and the informant’s statements are reported only where they constitute the official administrative interpretation rather than personal opinion. The second input is a field observation conducted at the Museum Danar Hadi in Surakarta in 2025, focused on the curatorial classification, presentation, and provenance protocols applied to traditional motifs. Field notes were recorded and triangulated against the documentary materials cited above, particularly the Serat Tatakrama Kedhaton and Maklumat Solo. Because both inputs involved public officials and a public institution speaking in administrative capacities on matters of public concern, and because no personal identifiers of private individuals were collected, the research did not require institutional ethics review under prevailing Indonesian standards for legal-doctrinal research; informed consent for citation was nonetheless obtained from Mr. Iqbal prior to attribution. The empirical materials are used in this study solely as tertiary materials supporting interpretation; the analytical claims rest on doctrinal and comparative reasoning.
Theoretical Framework: Analytical Foundations for TCE Protection
This research rests on four interlocking legal-theoretical foundations. The first is the theory of legal protection. In his Rechtsidee doctrine, Radbruch insists that good law must realise three values proportionally: legal certainty (Rechtssicherheit), justice (Gerechtigkeit), and utility (Zweckmäßigkeit) (Alexy, 2021). Applied to TCEs, these three values require clear and predictable legal rules (certainty), fair outcomes for custodians (justice), and meaningful benefits for society (utility). Bentham’s utilitarian standard, which assesses law by the aggregate welfare it produces, suggests that a regime that merely registers batik motifs without generating returns for artisans and custodians fails its protective function (Ridwansyah, 2024). Rahardjo’s theory of substantive justice complements this position by insisting that good law must touch the conscience of the people and serve their welfare (Rahardjo, 1980); law must function as an instrument of social empowerment, not as a static normative text.
The theory of intellectual property forms the second foundation. The two most influential theories in the field—Locke’s labour theory and Hegel’s personality theory—both ground rights in individual creative effort. Locke (1690) argues in The Second Treatise of Government that a person is entitled to the fruits of their own labour (Tambunan, 2008); Hegel emphasises that creative works are expressions of the creator’s personality and identity (Praha, 2021). Applied to communal cultural property, both theories encounter significant difficulty. Traditional batik motifs emerge from a blend of individual creativity, ritual practice, and intergenerational cultural transmission. Soepomo (2007) argued, in his theory of Indonesian customary law, that rights arising from communal creation must vest in the community rather than in any individual. Ter Haar (1976) treats such authority as a right to regulate communal property in the public interest.
Contemporary international scholarship has substantially extended this critique. Carpenter, Katyal, and Riley (2009) argue that the dominant individual-ownership model is poorly suited to indigenous cultural property because indigenous communities seek to fulfil an ongoing duty of care toward cultural resources, often in the absence of formal title; they propose a “stewardship model” in which non-owners bear fiduciary obligations grounded in peoplehood, and in which property is reconceived to embrace a broader and more flexible set of interests. Coombe (1998) reframes cultural property as relational and dialogic rather than purely proprietary. Drahos (2014) interrogates the persistence of an “extractive” intellectual property order that recognises indigenous knowledge symbolically while denying substantive entitlements, and proposes a developmental order grounded in regulatory convening and high-trust networks. Dutfield (2004) elaborates the limits of conventional IP doctrines for traditional knowledge linked to biogenetic resources, while Yu (2008) analyses the difficulty of fitting intangible cultural heritage within standard intellectual property categories. These contributions converge on a shared diagnosis: collective cultural production calls for collective and stewardship-based legal architectures that classical IP theory cannot supply. The implication for Indonesia is direct: a credible TCE regime must be built on collective rights organised through tiered access—state governance, custodial moral authority, and licensed commercial users—rather than on individualistic ownership categories. As Waldron (2004) observes, ownership does not always take the form of an exclusive individual right; property systems can be communal, and those in authority over communal property act not as absolute owners but as stewards executing collective decisions.
The theory of legal utility forms the third foundation, adding economic and social perspectives. Wignjosoebroto (2013) reminds us that law cannot be separated from the social context in which it operates; accordingly, batik protection cannot be standardised under individualistic Western intellectual property rules but must accommodate the collective rights of custodians. Indicators of legal utility in this domain include (i) formal recognition of custodians’ moral rights; (ii) fair distribution of economic returns; (iii) community involvement in legal decision-making; and (iv) harmonisation between state interests and community cultural values. Legal protection for TCEs must therefore produce tangible social and economic benefits for custodial communities, rather than exist solely within the formal legal frame. As Hananto (2025) observes in extending Bentham’s framework, utility is measured not by economic profit alone but by the extent to which law guarantees the continuity of cultural values and the welfare of artisans. The framework must guard against two extremes: excessive privatisation, which commodifies sacred elements without mutual benefit, and complete openness, which strips custodians of their moral standing as protectors. Good law should accomplish both objectives—safeguarding moral values and supporting economic flourishing.
The public trust doctrine (PTD) forms the fourth foundation. Rooted in the Roman concept of res communes—resources shared by all and protected by the state for the public good—the doctrine underwent significant development in Anglo-American law, notably in Illinois Central Railroad Co. v. Illinois, 146 U.S. 387 (1892), which held that the state holds public resources in trust for the people and cannot alienate them to private interests (Frier, 2019). Wood (2009) frames the contemporary obligation precisely: opacity in the management of public resources amounts to a fundamental breach of public trust, because secrecy is incompatible with a trustee’s duty of loyalty to beneficiaries. In the Indonesian legal system, the PTD is reflected in the constitutional interpretation of Article 33(3) of the 1945 Constitution: “controlled by the state” (dikuasai negara) does not imply absolute ownership but rather authority and management (trusteeship) exercised for the greatest possible prosperity of the people (Constitutional Court Decision No. 002/PUU-I/2003, 2003).
3.2. The Meaning of “Held by the State” in Article 38(1) of the Copyright Law
The first research question concerns the proper meaning of the phrase “held by the state” (dipegang oleh negara) in Article 38(1). The analysis proceeds in three interpretive layers—grammatical, systematic, and teleological—and concludes that the phrase denotes a form of public trusteeship. Before turning to the doctrinal analysis, the methodological premise underlying it must be addressed, because the reviewers correctly observed that the transposition of Article 33(3) jurisprudence onto Article 38(1) requires explicit justification. The two provisions occupy different constitutional registers: Article 33(3) governs natural resources, while Article 38(1) governs intangible cultural expressions. The transposition is therefore analogical rather than direct, and rests on three structural parallels. First, both provisions vest state authority over assets that belong constitutionally to “the Indonesian people” rather than to the state qua proprietor; the state is the constitutional intermediary, not the owner. Second, both provisions are subject to the constitutional duty under Article 33(3) to use such assets “for the greatest possible prosperity of the people”, a duty that the Constitutional Court has read as applicable to all forms of patrimonial public authority, not only natural resources. Third, the structural logic that the Constitutional Court developed in Decision No. 35/PUU-X/2012 on coastal management rights—namely, that state authority over communal resources must be exercised with due regard for customary community rights, to the extent that those rights continue to exist and are recognised—applies a fortiori to Article 38(1), because TCEs are, by definition, objects in which living customary law has continuing constitutive claims (Constitutional Court Decision No. 35/PUU-X/2012, 2012). The Article 33(3) line of jurisprudence is therefore not directly transposed but applied analogically through this shared constitutional logic of public custodianship over patrimonial assets in which the people, and customary communities within them, hold continuing material and moral interests.
From a grammatical perspective, the Copyright Law deliberately uses the term “held” (dipegang) rather than “owned” or “controlled.” As clarified by the Constitutional Court in Decision No. 002/PUU-I/2003, “controlled” refers to arrangements made in the public interest and does not imply ownership, while “owned” refers to private property with full rights to transfer and exploit. “Held” belongs to a distinct category—that of a mandate-holder—where the state acts as bearer of authority for the collective interest rather than for its own (Hadjon, 1987). Widyanti (2020) emphasises that the state functions as administrator of TCEs while ownership or custodianship remains with the community or traditional society that creates, preserves, and develops them. State management aims at the greatest possible prosperity of the people, particularly traditional communities (Widyanti, 2020). This interpretation is confirmed by the administrative position of the DJKI: the state assumes responsibility for protection and inventory, but where a custodian exists, the custodian retains priority and the state does not hold a monopoly (Mr. Iqbal, Secretary of the Policy Formulation Team of the DJKI, personal communication, 30 September 2025).
Systematically, the meaning of “held by the state” cannot be read in isolation; it must be integrated into the relevant constitutional architecture. Article 18B(2) of the 1945 Constitution recognises and respects indigenous peoples and their rights. Article 28I(3) guarantees that cultural identity and the rights of traditional communities will be respected in line with the progress of the times. Article 32(1) charges the state with promoting national culture while leaving citizens free to preserve and develop their cultural values. These three provisions establish a normative architecture that prohibits any interpretation of Article 38(1) as a transfer of custodial collective rights to the state (Widjojanto, 2009). Constitutional Court Decision No. 35/PUU-X/2012 reinforces this position by affirming that state control over communal resources must be exercised with due regard for the rights of customary law communities, to the extent that they continue to exist and are recognised (Constitutional Court Decision No. 35/PUU-X/2012, 2012).
From a teleological perspective, Article 38(1) must be understood within the broader framework of the TCE protection system, which aims to safeguard TCEs from misuse, promote cultural sustainability, and preserve the nation’s cultural dignity. “Held by the state” is best read as a means to those ends rather than as an end in itself. Teleological reasoning thus supports the reading that “held” denotes normative stewardship of the creativity, knowledge, and practices that give TCEs their living cultural value (Kuruk, 1999). Drawing the three layers of interpretation together, the study concludes that “held by the state” refers to a public trust. The state acts as a public trustee, exercising administrative authority rather than holding exclusive ownership. It functions simultaneously as regulator (setting rules of protection), facilitator (providing participation infrastructure), and trustee (holding copyright as a fiduciary responsibility to the custodian community). This reading is consistent with the WIPO Intergovernmental Committee’s evolving treatment of state authority as representative rather than proprietary in the context of TCEs (WIPO, 2024).
3.3. Legal Principles Governing “Held by the State” Under National Law and International Conventions
The second research question asks what legal principles govern state authority over TCEs. At the national level, the Constitutional Court (Decision No. 001-021-022/PUU-I/2003) clarified that state control over public resources consists of five distinct functions: policy (beleid), administration (bestuursdaad), regulation (regelendaad), management (beheersdaad), and supervision (toezichthoudensdaad). All five are directed to the greatest possible prosperity of the people. The decision draws a clear line between public ownership, where the people are the true owners, and the state’s role as the authority responsible for managing that mandate. Law No. 5 of 2017 on the Advancement of Culture reinforces this framework by requiring the government to establish mechanisms for community involvement in cultural development, provide the necessary funding, and promote the active role of communities in every decision concerning the management of cultural heritage. These provisions directly support the enabling protection model proposed in this study.
At the international level, the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage frames the relevant state function. Article 11 requires States Parties to identify and designate elements of intangible cultural heritage in their territory with the participation of relevant communities, groups, and non-governmental organisations. Article 13 further obliges states to adopt policies, institutions, and administrative measures supporting safeguarding, including documentation, research, and transmission through education and community engagement. UNDRIP requires states to provide effective mechanisms, including restitution, for the taking of intellectual and cultural property without free, prior, and informed consent.
Article 19 of UNDRIP articulates the FPIC standard. “Free” refers to consent given voluntarily, without pressure or intimidation from any party, including the government. “Prior” requires consent to be obtained before any exploitation activities begin. “Informed” requires that communities be provided with complete and understandable information in a language and format appropriate to their cultural context, covering social, economic, and cultural impacts as well as potential risks. “Consent” requires that approval be reached through the community’s own traditional decision-making process (United Nations Declaration on the Rights of Indigenous Peoples, 2007). FPIC is not a procedural formality; it is a prerequisite for lawful utilisation of TCEs. Benefit-sharing is governed by the Access and Benefit Sharing (ABS) framework. The Nagoya Protocol (2010), adopted in Indonesia through Law No. 11 of 2013, makes ABS and FPIC mandatory principles in the use of genetic resources and associated traditional knowledge (Nagoya Protocol, 2011); the ABS logic, by analogy, supports a corresponding regime for TCEs. To date, however, this principle has not been fully transposed into Indonesian domestic law for TCEs.
Synthesising the national and international layers, four legal principles govern state authority over the TCE of traditional batik motifs. First, the principle of normative stewardship: the state is authorised to “hold” TCEs as a public trust, not as property. Second, the principle of substantive participation: all policies and decisions regarding TCEs must genuinely and meaningfully involve custodians, not merely through formal consultation. Third, the FPIC principle: no legitimate commercial use of TCEs may occur without the free, prior, and informed consent of the custodial community. Fourth, the ABS principle: any economic benefit derived from the use of TCEs must be fairly and proportionally shared with the custodian community through transparent and auditable mechanisms.
3.4. Comparative Perspective: India, Thailand, Peru, the Pacific Model Law, and Indonesia’s Structural Gaps
The third research question is addressed through an analytical comparative discussion, selected on the four criteria specified in Section 2. The comparison is organised by protection logic rather than by jurisdiction, allowing each comparator to illuminate a distinct architectural element of the Enabling Protection model proposed in Section 3.5.
India represents the defensive-documentary logic. Section 2(c) of the Copyright Act 1957 defines “artistic work” to include paintings, sculptures, engravings, photographs, and other visual works (Copyright Act, 1957). Under this framework, Indian TCEs such as Madhubani paintings, Warli art, textile patterns, and tribal wood carvings receive partial protection through their tangible documented forms. Because such works are communal and transmitted across generations, however, they often fail the “originality” requirement of modern copyright doctrine. India responds with a flexible approach to originality that emphasises the tangible form as documented or reproduced by custodians. The state does not claim copyright over the underlying TCE but allows custodians to protect the physical forms they create or restore. Section 57 enables rights-holders to prevent modifications damaging the cultural integrity of a work, and Section 63 provides criminal enforcement under which copyright infringement may attract imprisonment of at least six months or a fine of at least Rs. 50,000 (Copyright Act, 1957). The Traditional Knowledge Digital Library (TKDL), constructed by the Council for Scientific and Industrial Research, supplies prior-art evidence to international patent offices and is the most cited defensive instrument of its kind (WIPO and India Partner to Protect Traditional Knowledge from Misappropriation, 2011). India complements this defensive logic with the benefit-sharing provisions of Section 21 of the Biological Diversity Act 2002 (Biological Diversity Act, 2002). Analytically, India demonstrates that defensive infrastructure can deliver legal certainty and a measure of enforcement, but, on its own, leaves the empowerment of custodians underdeveloped.
Thailand represents the participatory-institutional logic. The Commission for the Promotion and Preservation of Intangible Cultural Heritage, established under Section 10 of the Promotion and Conservation of Intangible Cultural Heritage Act, B.E. 2559 (2016), is responsible for establishing national ICH lists, coordinating documentation, and ensuring community involvement (Promotion and Conservation of Intangible Cultural Heritage Act, B.E. 2559, 2016). Thailand’s capacity-building model, developed in cooperation with UNESCO, combines workshops for national and local stakeholders with pilot projects such as the inventorying of Pgakenyaw Karen rotational farming and Lakhon Chatri performing arts (UNESCO, 2018). Analytically, Thailand demonstrates that institutional architecture—especially the combination of a national commission with formal mechanisms for community engagement—can position the state as an enabler that supplies tools, knowledge, and resources, allowing communities to act as subjects of preservation rather than as objects of regulation.
Peru represents the sui generis logic with prior informed consent and a dual registry. Law No. 27,811 of 24 July 2002—the first national law in the world dedicated to the protection of indigenous collective knowledge—establishes a sui generis regime built around three institutional features (Clark, Lapeña, & Ruiz, 2004). First, the law recognises indigenous peoples’ collective right to decide over their knowledge and treats that knowledge as part of their cultural heritage, inalienable and imprescriptible. Second, it institutes a tripartite registry system—public, confidential, and local—managed by INDECOPI, designed to provide defensive evidence in international fora while protecting sensitive knowledge from disclosure. Third, it operationalises prior informed consent through licence contracts concluded between representative organisations of indigenous peoples and third parties, and it mandates contributions from commercial use to a Fund for the Development of Indigenous Peoples. Analytically, Peru demonstrates a workable architecture for combining defensive registration with consent-based licensing and a dedicated benefit-sharing fund, although critics have noted persistent implementation difficulties for communities lacking organisational capacity (Greene, 2020). For the Indonesian setting, the Peruvian model is particularly instructive because Peru, like Indonesia, operates within a civil-law tradition and faces the practical challenge of mediating between national administrative authority and dispersed customary communities.
The Pacific Model Law 2002—formally, the Model Law for the Protection of Traditional Knowledge and Expressions of Culture, endorsed by Pacific Ministers of Culture in Noumea in 2002 under the auspices of the Secretariat of the Pacific Community—represents the regional-framework logic. The Model Law introduces a category of “Traditional Cultural Rights,” distinct from copyright and not subject to its term limits or originality requirements, vested in the traditional owners; it establishes a Cultural Authority to administer prior and informed consent procedures and to mediate between traditional owners and prospective users; and it recognises traditional moral rights independently of economic rights (Secretariat of the Pacific Community, 2006; von Lewinski, 2009). Implementation has been uneven—Fiji, Vanuatu, Papua New Guinea, and Palau have moved toward incorporation, with substantial variation in scope and enforcement (Forsyth, 2013). Analytically, the Pacific Model Law demonstrates that traditional cultural rights can be conceptualised as a category of intellectual rights distinct from copyright proper, and that an institutional intermediary (the Cultural Authority) can mediate between custodial communities and external users without thereby transferring the underlying right to the state.
The four comparators jointly illuminate Indonesia’s structural gaps. First, Indonesia lacks a comprehensive defensive infrastructure comparable to India’s TKDL—an instrument essential for preventing foreign IP claims in international fora. Second, Indonesia lacks a participatory institutional structure comparable to Thailand’s ICH Commission, dedicated specifically to community engagement. Third, Indonesia lacks statutory FPIC procedures and enforceable ABS mechanisms for the exploitation of TCEs, both of which are operationalised under Peru’s Law 27,811 and the Pacific Model Law. Fourth, Indonesia lacks a distinct category of traditional cultural rights as introduced by the Pacific Model Law; instead, it relies on a copyright provision (Article 38(1)) whose contours, as Section 3.2 demonstrated, are constitutionally underdetermined. The phrase “held by the state,” operating without supporting infrastructure on any of these four dimensions, paradoxically perpetuates the very vulnerabilities it purports to redress—the problem that the Enabling Protection Model is designed to address.
3.5. The Enabling Protection Model: Normative Reconstruction and Institutional Framework
The Enabling Protection Model is a hybrid participatory framework combining defensive and empowering protection, grounded in FPIC and ABS, and designed to deliver meaningful legal benefits to custodial communities. It is conceptually positioned in dialogue with the stewardship model of Carpenter, Katyal, and Riley (2009)—whose architecture of fiduciary obligations toward cultural resources held by non-owners offers a sound theoretical anchor for the state’s trustee role—and with Drahos’s (2014) developmental conception, which insists that intellectual property arrangements for indigenous knowledge must move beyond symbolic recognition to substantive entitlement. The Indonesian-specific elaboration developed here rests on five mutually reinforcing pillars.
The first pillar is the normative reconstruction of state authority. Under Enabling Protection, the state performs three functions. As regulator, the state adopts legislation defining which TCEs are protected, under what FPIC procedures, and through what ABS mechanisms. As facilitator, the state builds infrastructure for participatory documentation, dispute resolution, and international representation—including a national TCE registry, capacity-strengthening programmes for custodial communities, and cultural diplomacy at WIPO and UNESCO. As trustee, the state holds copyright on TCEs as a fiduciary responsibility rather than a property right, for the benefit of the Indonesian people and the custodial communities. The framework draws on Weber’s theory of legal-rational authority, under which legitimate authority requires a rational and rule-bound basis (Weber, 1978); applied to TCEs, this principle requires clearly defined normative limits on state authority. The state’s position in this model corresponds closely to what Carpenter, Katyal, and Riley (2009) describe as the fiduciary obligations of non-owners toward cultural resources.
The second pillar is a Participatory National TCE Registry. Unlike the existing DJKI administrative registry, this participatory mechanism prioritises community-based identification through four sequential stages. In the community identification stage, custodians lead the documentation of motifs, recording philosophical meaning, social role, sacred status, and restrictions on use. In the verification stage, DJKI reviews the documentation with input from palace and customary authorities. In the classification stage, motifs are grouped according to permissible use—public, restricted, or sacred. In the publication stage, registration is made available to the public with appropriate access controls. Sacred motifs such as Parang Rusak, Udan Liris, Kawung, and Sekar Jagad, when registered with the label “Sacred / Restricted Use,” produce clear legal consequences. Use of such motifs without the consent of the appropriate customary authorities constitutes an administrative offence enforceable by the state acting as trustee (Directorate General of Intellectual Property, 2023). This pillar incorporates the dual-track logic of Peru’s public and confidential registries while adapting it to Indonesian palace and customary structures.
The third pillar is the institutionalisation of FPIC for any commercial use of traditional batik motifs. Implementation requires the active participation of palace authorities, customary leaders, and the wider batik community. The “Free” element guarantees that consent is reached without economic or industrial pressure and that custodial communities may refuse commercial exploitation without sanction. The “Prior” element requires that consent be obtained before any commercial activity begins. The “Informed” element requires that information be made available in a culturally appropriate language and format, covering the nature and extent of the proposed use, anticipated financial returns, potential cultural-distortion risks, and the proposed benefit-sharing arrangement. The “Consent” element requires that approval be obtained through the community’s own traditional decision-making process; decisions reached by the appropriate customary authorities are recorded in formal protocols, which serve as the legal basis for state licensing. The procedural architecture is modelled on the licence-contract mechanism of Peru’s Law 27,811.
The fourth pillar is ABS, which shifts commercial use from extraction to enablement. Implementation is anchored in a Benefit-Sharing Fund (BSF) that disburses grants, supports industry partnerships, and receives royalties from licensed commercial exploitation of traditional batik motifs. Funds from the BSF are directed to four uses: (i) welfare measures for custodians through direct payments to artisans and communities; (ii) empowerment through training in batik production techniques, design innovation, and digital marketing; (iii) documentation and education to strengthen and broaden the registry; and (iv) legal advocacy to pursue misappropriation claims nationally and internationally. An Ethical Batik Mark, modelled on existing certification schemes, would signal to the market that a product complies with FPIC and ABS standards and meets baseline custodian-welfare criteria, translating legal protections into market-based incentives for compliant producers. The BSF architecture corresponds to the Fund for the Development of Indigenous Peoples established under Peru’s Law 27,811 and to comparable mechanisms identified by Forsyth (2013) in Pacific implementation experience.
The fifth pillar is an Adaptive Legal Mechanism aligning customary law, national law, and international standards. Three institutional tools support this alignment. First, Cultural Protocols in the form of formal Memoranda of Understanding among DJKI, the Yogyakarta Palace (Keraton Yogyakarta), and the Surakarta Palace (Kasunanan Surakarta), defining each party’s authority in co-managing TCEs in a manner that reflects Nonet and Selznick’s (1978) conception of responsive law—law that adapts to social purposes through institutional learning rather than fixed rules. Second, a Code of Conduct for industry players ensures compliance with FPIC, supports ABS, and prohibits culturally inappropriate uses (for example, placing sacred motifs on the soles of shoes). Third, community-led digital repositories of traditional batik motifs serve defensive, educational, and preservation functions under the principle of community data sovereignty. Together, these tools create an institutional ecosystem in which the state safeguards administrative functions and cultural diplomacy through DJKI and related institutions, palaces and customary leaders exercise substantive authority, and the batik community benefits directly through training, ABS payments, and access to the creative economy.
3.6. Normative Implications: The Reconstruction of Article 38(1) of the Copyright Law
The Enabling Protection Model requires a redesign of the normative framework under Article 38 of the Copyright Law. The existing framework lacks adequate legal instruments to safeguard custodians as holders of cultural value: it contains no FPIC mechanism, no benefit-sharing system comparable to Section 21 of India’s Biological Diversity Act 2002 or the BSF of Peru’s Law 27,811, and no institutional structure comparable to Thailand’s ICH Commission or the Pacific Cultural Authority. As Aragon (2012) observes, the Indonesian government’s role as copyright holder of TCEs functions, in practice, as a form of intangible-property nationalism that paradoxically neglects the genuine interests of custodial communities.
A normative reconstruction of Article 38(1) should incorporate at least five essential elements. First, an explicit definition of “held by the state” as representative trust, signalling that state authority is fiduciary rather than proprietary. Second, FPIC provisions requiring the free, prior, and informed consent of custodial communities before any commercial exploitation. Third, an ABS mechanism establishing mandatory contributions to a Benefit-Sharing Fund from every commercial TCE licence. Fourth, a participatory registry process requiring the involvement of custodial communities in documentation and classification. Fifth, the establishment of a National TCE Institution with an institutional structure adapted from the Thai model and the Pacific Cultural Authority. These adjustments would bring Indonesian practice into alignment with the comparator regimes analysed in Section 3.4 while ensuring that the protection of batik as a TCE proceeds justly, participatorily, and in conformity with the constitutional mandate for cultural protection under the 1945 Constitution..
This study yields three principal conclusions. First, the phrase “held by the state” in Article 38(1) of Law No. 28 of 2014 on Copyright should be interpreted as normative stewardship (public trusteeship) rather than ownership (dominium) or full administrative control (beheersdaad). Grammatical, systematic, and teleological interpretation jointly support this reading. The state functions as trustee for the custodial community and the Indonesian public; it does not “own” TCEs as it owns state assets but bears a legal and moral mandate to protect, manage, and prevent misuse. This position is confirmed by the administrative interpretation of the DJKI and aligns with Articles 18B(2), 28I(3), and 32 of the 1945 Constitution, as well as with Indonesia’s international obligations under the 2003 UNESCO Convention, UNDRIP, and the Nagoya Protocol.
Second, the legal principles governing state authority over the TCE of traditional batik motifs—derived from both national law and international instruments—require a participatory approach and a benefit-oriented state role. The state must acknowledge the collective rights of custodians, promote participatory governance, guarantee restitution from unlawful appropriation, and ensure equitable benefits through ABS. The FPIC principle establishes free, prior, and informed consent as a binding precondition for lawful commercial use of TCEs, not as a programmatic aspiration.
Third, the most appropriate legal protection model for traditional batik motifs “held by the state” is the Enabling Protection Model, in the form of a participatory hybrid. The model combines defensive protection—prevention of misappropriation through digital documentation and a Participatory National TCE Registry—with empowerment of custodians through FPIC, ABS, capacity building, and adaptive legal mechanisms. The state functions as facilitator and trustee; the custodial community functions as the source of the TCE. The model ensures that the protection of traditional batik motifs delivers tangible benefits, prevents misuse, and advances the nation’s cultural heritage within a just, certain, and beneficial legal framework.