Geographical Indication Protection of Tenun Gringsing Bali Fabric as A Society Cultural Heritage in Tenganan Pegringsingan
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Geographical Indication Protection of Tenun Gringsing Bali Fabric as A Society Cultural Heritage in Tenganan Pegringsingan
I Gede Agus Kurniawan1, Kadek Januarsa Adi Sudharma2
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1 Universitas Pendidikan Nasional, E-mail: [email protected]
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2 Universitas Pendidikan Nasional, E-mail: [email protected]
Info Article
Received: 16th Juli 2021
Accepted: 25th September 2021
Published: 30th September 2021
Keywords:
Legal Effectiveness Intellectual
Property Rights; Geographical Indication; Tenun Gringsing Bali Fabric
DOI:
10.24843/JMHU.2021.v10.i03.p03
Abstract
The Kain Tunun Gringsing Bali is a cultural heritage of the people of Tenganan Pegringsingan Village and has a philosophical value and sacred meaning behind every motif of the Balinese Tunun Gringsing cloth. In October 2016 the government has issued a Geographical Indication Protection certification for the Bali Gringsing Tunun Fabric. The purpose of writing this paper is to examine the granting of Geographical Indication Certificates to Bali Gringsing Tunun Fabrics both in terms of production and sales. The research in this article uses empirical legal research methods. The results of the study found that the evaluation after obtaining a protection certificate showed that there was no significant impact on the productivity of the Balinese Tunun Gringsing fabric craftsmen. This is due to the lack of socialization after and data collection so that it cannot be done in a concrete way the perceived impact of getting the exclusive right to protect the geographical indications of the Kain Tunun Gringsing Bali
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1. Introduction
Geographical Indications (Gis) are distinguishing marks associated with quality and reputable products with their place or area of production and thus help identify and differentiate those products in the market.1 Geographical Indication, or GIs, is a tool of intellectual propriety recognized by World Trade The Organization's TRIPs Agreement (and, as such, is protected in all 162 WTO Member States), which aims to capture socioeconomic value of local products by protecting and promoting their unique characteristics.
The essence of the definition provided by article 22.1 of the TRIPs Agreement: “Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is
essentially attributable to its geographical origin”. 2
There are several examples of well-known geographical and traditional names, scattered around the world with products of a certain reputation and quality and commercial denominations based on high value. The GIs are Argane Oil (Morocco), Café de Colombia (Colombia), Café Ziama Magenta (Guinea), Champagne (France), Darjeeling Tea (India), Feta (Greece), Gruyère (Switzerland), Habanos (Cuba), Harris Tweed (UK), Blue Mountain Coffee (Jamaica), Kampot Pepper (Cambodia), Kobe Beef (Japan), Mendoza Wine (Argentina), Napa Valley (US), Parmigiano Reggiano (Italy), Phu quoc nuoc mam (Vietnam), Pinggu Peach (China), Porto (Portugal), Rooibos (South Africa), Scotch Whisky (UK) and Tequila (Mexico).
Legal protection of Intellectual Property Rights (IPR) regarding to Geographical Indication, has been protected through Law Number 20 of 2016 concerning on Trademark and Geographical Indication (Trademark and IG Law). According to Article 1 number 6 of Trademark and IG Law, states as follows: “Geographic indication is a sign that indicates the origin area for goods and/or product due to geographical environmental factors including natural factor, human factor or the combination between those two factors, gives reputation, quality, and certain characteristic on goods and/or the produced products”.
Tenganan Pegringsingan Traditional Village is categorized as a geographical indication area of ‘Tenun Gringsing Bali’. It is caused by the existence of Tenganan Pegringsingan Traditional Village shows the geographical indication which is a sign of the origin area of a goods, caused by geographical environmental factors including natural factor, human factor or the combination between those two factors which gives a certain characteristic and quality on the produced goods. Moreover, in the purpose of obtaining legal protection for geographical indication, craftsmen of “Tenun Gringsing Bali” need to apply for registration of protection for geographical indication.
Based on the research background above, in 2016, precisely in October, a certificate of protection for geographical indication was issued for “Tenun Gringsing Bali” fabric. Before getting GI recognition, originally the fabric of “Tenun Gringsing Bali” is called as the fabric of “Tenun Gringsing Bali”, however after granting the GI certificate, the name was changed into the fabric of “Tenun Gringsing Bali”, with the purpose of having a different characteristic comparing with other ‘tenun’ facrics in the other regions of Indonesia.
Sugiri3 wrote in 2020 about GIs related to handicraft, not about the implementation of existing regulations but comparing the regulations of several countries in ASEAN and Seminari et. al. who wrote about the results of community service research to increase the production of pegringsingan fabrics in Tenganan Village. There are also many articles about Pegeringsingan weaving which only lead to economic reviews and promotion of the weaving. So, this article has a different review from other articles.
Based on the conditions above, it is urgently needed to evaluate the effectiveness of legal protection on the geographical indication of “Tenun Gringsing Bali” which has been obtained a certificate of geographical indication from Directorate General of Intellectual Property Rights at the Ministry of Law and Human Rights.
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2. Research Methods
In this study, empirical legal research will be used. The approach used in this scientific work is a statutory approach. The sources of legal materials used in this study are primary legal materials consisting of applicable laws and regulations. Secondary legal materials consist of research results, text books, scientific journals, newspapers, and internet news that are relevant to the problems being studied. Other non-legal materials such as legal dictionaries, encyclopedias and so on.
This study was conducted in Tenganan Pegringsingan Traditional Village, Manggis Sub-district, Karangasem Regency, Bali Province. The researcher chose the location due to the ownership of geographical indication certificate for “Tenun Gringsing Bali” fabric.
Picture 1: Tenganan Village
Picture 2: Karangasem Regency
The scope of this study is about legal effectiveness on the implementation of geographical indication protection of “Tenun Gringsing Bali” facric as a society cultural heritage in Tenganan Pegringsingan Traditional Village. This study used empirical juridical design. Specifically, the study investigated the impact of geographical indication protection on “Tenun Gringsing Bali” facric for the craftsmen in Tenganan Pegringsingan Traditional Village in particular and Bali generally. Since this study concerned on people’s living relationship in the society thus, reseach method for empirical legal can be categorized as a sociological legal research
Moreover, there were three data collection techniques used to analyze the research problems of this study. First, review of related literature by reviewing and analyzing on the results of leagal study, internet articles, and legal journals. Second, direct observation in which the observation was conducted by observing directly the condition of Tenganan Pegringsingan Traditional Village, visiting and interviewing weavers, and observing directly coloring and weaving process of “Tenun Gringsing Bali” fabric. Third, the interview technique by doing a direct, open, and structured interview section to obtain all information in all practical situations. The interview sections were conducted with the predetermined informants or respondents who were considered to know about geographical indication protection of “Tenun Gringsing Bali” fabric. They were the Head of Tenganan Pegringsingan Traditional Village, the Head and Secretary of PSIG-TGB (Protection Society of Geographical Indication “Tenun Gringsing Bali”), and several weavers of “Tenun Gringsing Bali”. Therefore, there will be obtained accurate and relevant data to answer the research problems then, those data will be processed and analyzed by using qualitative data processing techniques.
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3. Results and Discussion
Geographical indication (GI) is one of the new Intellectual Property Rights. Geographical indication (GI) as a trademark conveys a message. IG can be used strategically to advance regional and national industry. The ownership of rights on geographical indication is different from the ownership of other Intellectual Property Rights such as patent, copyrights, trademark, industrial design, DTLST, PVT, as well as the trade secret which the rights is owned individually. However, the ownership rights to geographical indication can be owned collectively by local producer community as long as the provisions in the Requirement Book on geographical indication are fulfilled.4
Geographical indication is a marker of origin for goods in which can be in the form of direct indication, for instance, “made in England” and indirect indication in the form of British Flag: Cheese “Mozarella” (Italia), “Feta” (Greece), “Camembert (France). Moreover, geographical indication has two functions.5 One one side of the function, it
gives protection for consumers in directly against to the act of using wrong or misleading indication. Then, on the other hand, it gives goodwill protection to whom it may entitled to geographical indication.6
In Article Government Regulation No. 51 of 2007 of the Geographical Indication, a geographical indication is a sign that indicates the origin area for goods, which due to environmental factors including natural factor, human factor, or the combination between those two factors, gives ceratin quality and characteristic on the goods produced. Protected goods are agricultural products, handicrafts, and processed products.
Article 53 section (1) and section (2) of the Trademark and GI Law stipulates that the protection of geographical indication uses a registration system (first to file system) which is registered by the Minister thus, the applicant is required to submit an application to the Minister. The registered geographical indications receive legal protection, as long as the characteristics and/or the qualities, which become the basis for the protection of geographical indication, are still exist.7
Geographical indication is also property rights which has economic value therefore, geographical indication is belong to one of the Intellectual Property Rights reserved. The importance of geographical indiction is as follows:
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1. Geographical indiction is the identification of goods originating from certain regions and it cannot be used for similar goods produced in other regions.
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2. Geographical indiction is the quality indicator of a goods which informs to the consumers that the goods are produced from a certain region in which the quality influenced by natural and human factors that cannot be found in another region. Geographical indiction can be used as a business strategy to market goods from a certain region therefore, the sale value can increase.8
Privileges value of a region can be increased in the eyes of its customers when a regional group and its members have the exclusive rights to use a certain geographical indication.9 It is like trademark, geographical indication can add to the streths of dynamic product marketing and due to geographical indication is shared therefore, they can be very good tools for their region or for community-based economic development. The things needed to remember is a sign protected as geographical indication, if it has been registered in the general list of geographical indication at the Directorate General of Intellectual Property Rights. Once registered, a geographical indication cannot be changed into public property. It means that the other parties who are not from regions which have a geographical indication, are prohibited in using the same mark (geographical indication) on the product that they produce.10
Legal basis: Law Number 20 of 2016 concerning on Trademark and Geographical Indication, and Government Regulation No. 51 of 2007 concering on Geographical Indication (hereinafter reffered to as PP No. 51/2007). The applicant or holder of geographical indication, is different from other Intellectual Property Rights such as patent, trademark, and individual copyrights. The ownership of geographical indication is collective, every person who is in the area producing products and/or those who have permission to do so, it is possible to jointly own have the rights and use the name of geographical indication on their production as long as the determined requirements collectively in the Requirement Book have been fulfilled.11
Article 56 section (2) PP No. 51/2007 determines that those entitled to submit applications are; a) institution, representing the community in the region that produces goods, consisting of b) an institution authorized for that, or c) consumer groups of the goods. The protection of geographical indication (GI) aims to protect the peculiarities of goods from counterfeiting or improper use as well as providing opportunity and protection to the people of the region producing typical product to get the maximum benefit from those typical products. Besides, GI protection is also beneficial for consumens since it guarantees the product quality.
Products which can be protected in the protection of geographical indication, protection of geographical indication is basically not limited to agricultural product only but also, all products which have the relation to geographical factors including natural factor and/or human factor as the dominance of the formation of typical characteristic and quality. It has also been known that the existence can be protected by geographical indication.12
Common Property characteristics revealed by Glenn G. Stevenson, refer to a unit of resources that has either a good bond due to physical factors, biological parameters, social or group which are described as users which is different from excluded parties of resources use. Several of the user are belong to parties whom participated in the utilization of resources, as well as understanding the existing rules (both explicitly and implicitly) about their rights and obligation about resources extraction. Besides, users are shared collectively in the exclusive use of rights to existing resources before they are used, and a group is described as the holder of existing rights.
If it is related to the existence of a geographical indication protection object which is related to goods/product produced due to the influence of natural factor thus, the criteria revealed by experts have shown that the geographical indication object is based
on common property.13 It makes the existence of groups/ interested parties in the region have the main role in the local potentials produced by a region.14 The influence of geographical environmental factor as a substantial element is giving an impact to the origin goods/product from a certain region. It has given an impact to the ownership concept of geographical indication as a part of IPR regim. 15
As a part of IPR, surely the general principles of property law is also prevailed for geographical indication regime, as the other IPR regimes. However, the typical characteristics of geographical indication with communal ownership have given different nuances in the implementation of IPR principles as it is.16 The concept of communal ownership basically comes from community unity existence which feels a sense of togetherness in having something with the same interests.17
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3.1.4. Protection Society of Geographical Indication “Tenun Gringsing Bali”, Tenganan Pegringsingan Traditional Village
The applicant for the geographical indication of “Tenun Gringsing Bali” is institutional community, business people, traditional perpetrators, and Karangasem Regency Regional Government – Bali Province as the Supervisory Board of “Tenun Gringsing Bali”. The institutional and application submission to obtain the geographical indication of “Tenun Gringsing Bali”, is supported by the Governor of Karangasem Regency. It has been stated in the Governor’s Support Letter No. 510/2883/Disperindag/Setda, dated on November 30, 2015 concerning on Reccomendations Area for Geographical Indication of “Tenun Gringsing Bali”.18
This institutional was formed by business people deliberation, traditional perpetrators, and Karangasem Regency Regional Governmen which was held on October 16, 2015 in Tenganan Pegringsingan Traditional Village, Manggis Sub-district, Karangasem Regency, Bali. It is named as Protection Society of Geographical Indication “Tenun Gringsing Bali” or abbreviated as PSGI-TGB.
Picture 3: Some Examples of “Tenun Gringsing” Motif
Tenun Gringsing Bali fabric is the Indonesian society creative product which specifically live and develop in Tenganan Pegringsingan Traditional Village. “Tenun Gringsing Bali” fabric is a world limited work of society traditional knowledge. Because of that, it has unique characteristics and full of values and philosophical meanings which is believed by the society. The existence of “Tenun Gringsing Bali” fabric is worth to be protected. “Tenun Gringsing Bali” can also be categorized as Indonesian’s intangible cultural heritage and containing important meanings to fulfil the society’s viewpoint about local wisdom.
In the relation to cultural heritage, “Tenun Gringsing Bali” fabric is an intangible cultural heritage since it gives wisdom, patience, and philosophical symbols which is full of meaning for human life. “Tenun Gringsing Bali” fabric deserves attention from various parties, both in terms of its protection and in its development meaning therefore, it can be beneficial for society’s life, especially for the people who support the culture of “Tenun Gringsing Bali” fabric. In this relationship, the role of government and local communities are very important.19
“Tenun Gringsing Bali” becomes famous throughout the world since its uniqueness contains noble values. When everything becomes famous, the value will increase. Therefore, many people want to know and have it. As a result, there has been a shift in values, from sacred-spiritual to commercial-material. Having a high material value makes many people tempted to own it or produce it outside its origin village. It is also accompanied by a claim that “Tenun Gringsing Bali” is originated from the other villages, because of that the protection for “Tenun Gringsing Bali” fabric is needed to remain its sustainability in its origin village and still prioritize the noble values its conveyed.20
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3.3. Legal Effectiveness on the Implementation of Geographical Indication Protection for “Tenun Gringsing Bali” Fabric
Picture 4: Geographical Indication Certificate for “Tenun Gringsing Bali”
Tenun Gringsing Bali fabric is a very unique textile product as a result of society’s creativity in Tenganan Pegringsingan Traditional Village, Manggis Sub-district, Karangasem Regency, Bali. The skill of weaving “Tenun Gringsing Bali” has been hereditary since centuries ago. This fabric is categorized as a very unique fabric product since its weaving technique is very complicated and in producing it takes a very long time. It is caused by stages of the production process is a natural process, especially the coloring process surely needs a certain period of time. Therefore, in producing one piece of fabric takes a minimum of 4 years.
“Tenun Gringsing Bali” fabric is a society cultural heritage in Tenganan Pegringsingan Traditional Village. As a sacred creation, “Tenun Gringsing Bali” fabric motives have a strong magical element. Several “Tenun Gringsing Bali” fabric motifs are made up yearly to get maximum coloring result and arise motifs. There are 27 main motives used for “Tenun Gringsing Bali” fabric recently and 10 of them are new motives. If the weavers of “Tenun Gringsing Bali” use the new motif outside the 27 main motives, the weaving result will be reffered to as “Tenun Gringsing Bali” if it is agreed by the traditional elder of Tenganan Pegringsingan Traditional Village.
The motives used in “Tenun Gringsing Bali” are inspired by the forms of animal (fauna), trees (flora), puppet and temple. However, since “Tenun Gringsing Bali” carriers a message of harmony then, any image chosen as a motif basically always depicts a tread wench. Various main motives of “Tenun Gringsing Bali” in Tenganan Pegringsingan Traditional Village recently called as the following name; “Wayang Kebo, Wayang Putri, Wayang Candi, Dingding Ai atau Batun Cagi, Cecempakan, Teteledan, Talidandan, Gringsing Isi, Gegonggangan, Pepare, Sitan Pegat, Cemplong, Lubeng, Sanan Empeg, Batun Tuhung, Enjekan Siap, dingding sigading”. Those 17 motives are classified as ancient motives. Furthermore, those which is classified as new motives are; “Patola, Cakra, Candi, Yudha, Padma, Padma sari, Pitara, Lanang, Ombo Jero Luh, Ombo Jero Gede”. Those 27 motives are genrally divided into 2 groups of
patterning techniques, namely;
“Masemanyut” pattern group; there are two motives in one piece such as puppet motif with “cemplong” motif and “cecempakan” motif with “teteladan”, etc.
“Prembon” pattern group; there are more than two motives in one piece such as “anteng” or “sabuk tubuhan” which consisted of “dinding ai” motif, “dingding sigading” motif, “cecempakan”, “teteladan”, etc.21
The development of the use and function of “Tenun Gringsing Bali” has been rapidly changed. It previously was used as a means of completing the ceremony, wrapper of sacred objects, and a traditional attire in Tenganan Pegringsingan Traditional Village but, it recently seems to be shifting. That shifts are making “Tenun Gringsing Bali” fabric as a wedding costume for the wedding outside Tenganan Pegringsingan Traditional Village, modern fashion, bag, decoration, etc. In other words, the people interest in using and even having the fabric increases as time goes by. The demand increasement automatically raises efforts to produce the fabric in a large quantity for a short time. Therefore, if it is compared to the production results before eighties, current production quality has slightly changed. Besides, there has been some people who tried to imitate “Tenun Gringsing Bali” motif on the other fabric type. Even there has been some people who have imitated “Tenun Gringsing Bali” with different fabric type and coloring pattern. Therefore, it needs protection efforts toward the origin of “Tenun Gringsing Bali” fabric in order to protect the characteristics and the sustainability of “Tenun Gringsing Bali” cultural value, and the craftsmen welfare in the origin village. It is because the protection on a regional specialty product can maintain and improve economic in a community.22
At present, Tenganan Pegringsingan community may rejoice in the re-production of “Tenun Gringsing Bali”. Rejoicing in this case means that many young people have been actively involved in the business production. It means that the people has been freed from the fear of “Tenun Gringsing Bali” extinction and the revival of “Tenun Gringsing Bali” brings a lot of blessings for the wider community. However, the caution on the people who will produce “Tenun Gringsing Bali” are still exist. Since the increasingly of well-knows regional products, there will be many artificial products which exploits the products’ fame.23
Legal protection on “Tenun Gringsing Bali” fabric is done through the application for registration of geographical indication protection, and in 2016 was approved with the issuance of “Tenun Gringsing Bali” certificate. Moreover, to find out legal effectiveness of geographical indication protection on “Tenun Gringsing Bali”, the researchers conducted structured and systematic observation and interview section with several people in Tenganan Pegringsingan Traditional Village. When the researcher conducted interview section with the secretary of PSIG-TGB, he said that after the issuance of geographical indication protection on “Tenun Gringsing Bali” fabric until up to the interview time, it had not shown any significant results or impacts on changes or
increased productivity of “Tenun Gringsing Bali” fabric.
This rises to the assumption that the lack of socialization by the local government to provide public information regarding the granting of exclusive rights to geographical indication of “Tenun Gringsing Bali” fabric. This is also strengthened by the research result of Almusawir Nansa, which stated that the role of local government is needed in the socialization of geographical indication registration to increase the economic value of a regional product. He added that in the purpose of measuring the quantity production, sales, and distribution,24 the additional data was needed. Those data will indicate changes in the increasement or decreasement in the craftsmen productivity and the value of “Tenun Gringsing Bali” fabric. Based on the results of evaluation data, surely showed that the impacts of granting exclusive rights to protect geographical indication on “Tenun Gringsing Bali” fabric. This result is also consistent to the results of Tandjung’ research, which stated that exclusive rights granting on geographical indication can improve the craftsmen’ product. It happened because the craftsmen have brought the region fame thus, the demand is increasing.25 Additionally, between the craftsmen and PSIG-TGB institution still continue to work together in maintaining and increasing the effectiveness of “Tenun Gringsing Bali” fabric production.26
The similar statement is also stated by “Perbekel” of Tenganan Pegringsingan Traditional Village. He stated that the impact is not seen yet since the exclusive rights granting on geographical indication protection is still new thus, the results cannot be measured yet.27 Svinary in (2018) also stated that it takes time for registration effectiveness on geographical indication to give impacts as expected.28
The research also conducted interview section with a number of weavers/craftsmen. They also stated about the same thing in which there has not been any impact from geographical indication protection, productivity, and sales results. It is believed that the lack of socialization form the government regarding to exclusive rights granting on geographical indication of “Tenun Gringsing Bali” fabric.29 The role of government totally supports the success of legal protection on regional speciality product.30
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4. Conclusion
Granting of Geographical indication certificate on “Tenun Gringsing Bali” fabric has not been seen to have a significant both in the production and sales field. Geographical indication protection of “Tenun Gringsing Bali” fabric is expected to minimize plagiarism on the motif of “Tenun Gringsing Bali” fabric which is sold in the market by the irresponsible weavers/craftsmen outside Tenganan Pegringsingan Traditional Village. Suggestions: 1. For Karangasem Regency Government, together with Department of Culture Bali Province and Department of Industry and Trade – Karangasem Regency, to work together in monitoring, collecting data, and evaluation continuously on productivity, sales, and distribution of “Tenun Gringsing Bali” fabric therefore, it is not claimed by other vilages as their product creation. 2. Karangasem Regency government together with the society needs to frequently do socialization to public about the ownership of exclusive protection rights of geographical indication on “Tenun Gringsing Bali” fabric and the threat of criminal sanctions attached to them if they are proven to commit plagiarism in the aim of raising fears for plagiarist to imitate “Tenun Gringsing Bali” fabric.
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