Legal Protection of Oukup Karo Treatment as a Form of Communal

Intellectual Property Rights

Ellieka Sari and Runtung Sitepu

Doctoral Program in Law, Universitas Sumatera Utara, Medan, Indonesia

Keywords: Traditional Knowledge, Oukup Karo, Regulations, Legal protection.

Abstract: Traditional knowledge of medical treatment is a Communal Intellectual Property Right (Communal

Intellectual Property Rights) which must be legally protected. Communal Intellectual Property Rights

according to Law No. 28 of 2014, no. 5 of 2017, and no. 20 of 2016 concerning Copyright, Promoting

Culture, and Brands and Geographical Indications, respectively. This study examines the openness of works

of traditional knowledge related to medicine enough. Alignment and harmonization of national and

international instruments. The government has begun to curb businesses through cooperatives, industry and

trade services in order to run businesses through cooperatives. In 1982 Indonesia adopted the tunis model

law and established the 1982 copyright law, including including sufficient traditional knowledge as a legal

umbrella for protection from the perspective of communal intellectual property rights. This research is a

normative legal research: Normative legal methods refer to legal norms in various laws and regulations.

Data collection was carried out through literature review and supported by empirical data through

interviews with business owners, sellers of basic ingredients, consumers, and the department of

cooperatives, industry and trade. Data were analyzed qualitatively using a legal theory approach.

1 INTRODUCTION

Indonesia has a variety of cultures and religions,

beliefs, ethnicities, languages and customs. There

are five ethnic Bataks, one of the ethnic groups in

North Sumatra is the Karo Batak customary law

community. They prefer to be called "Karo". They

are located in Karo district, as well as expansion

areas such as Deli Serdang, Langkat, Simalungun,

and Medan and Binjai municipalities. In other areas

throughout North Sumatra and Indonesia in small

numbers to date it has spread throughout Indonesia.

Indonesia is blessed with quite unique culture

and customs that produce traditional traditional

works, one of which is the work of traditional

knowledge which is the nation's identity and assets.

The traditional knowledge that was studied was that

it became the Karo ethnic identity. Oukup is an

intellectual work in the field of traditional

knowledge and technology that contains

characteristics of traditional inheritance that are

produced, developed and maintained by indigenous

peoples, including: Technical skills (know how),

skills, innovation, concepts, learning and other

habitual practices that shape lifestyles traditional

societies include agricultural knowledge, technical

knowledge, ecological knowledge, medical

knowledge including medicine related to healing

procedures (Erni Widhyastari, 2019).Selama ribuan

tahun, masyarakat adat di seluruh dunia telah hidup

secara berkelanjutan di wilayah mereka (Clarkson et

al. LaDuke, 1994). The knowledge that indigenous

peoples develop to ensure their survival has changed

over time to meet new challenges; in many ways it

remains as relevant today as it is historically.

(Deborah Mc.Gregor, 2020)

Traditional knowledge, as a cumulative

accumulation of knowledge, practice and belief, is

essential for the maintenance of the homeland and

agricultural resources on which people depend and

enter into the decision-making process at almost

every stage of production, management, distribution

and consumption of these resources. (Berkes, 2004).

The integrity of traditional knowledge has become a

world debate on its valuable contribution to climate

change strategies (Ford et al., 2016). Traditional

Knowledge (TK) is well known for its contribution

to climate change adaptation strategies and based

natural resource conservation. (Bernadette

Montanari et al, 2019). Traditional Knowledge (TK)

Sari, E. and Sitepu, R.

Legal Protection of Oukup Karo Treatment as a Form of Communal Intellectual Property Rights.

DOI: 10.5220/0010294600003051

In Proceedings of the International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies (CESIT 2020), pages 57-63

ISBN: 978-989-758-501-2

is a community-based knowledge system that has

been developed, preserved and maintained from

generation to generation by local and indigenous

communities through continuous interaction,

observation and experimentation with the

surrounding environment (Pushpangadan P, et al,

2005), AICRPE (Ethnobiology Project coordinated

by All India) Final Technical Report 1992-1998).

Traditional knowledge related to biodiversity

developed and held in indigenous and local

communities was thus found to be the most valuable

clues to modern technological innovation and in

developing new foods (functional foods, medicinal

foods, and nutraceuticals), pharmaceuticals

(pharmaceuticals). ). (Pushpangadan et al, 2018).

Traditional medicine has long served humanity

as the main source of therapeutic aids. The

significance of research in traditional medicine is

increasingly being recognized because there is

substantial evidence that explains the prospects for

further research based on the use of traditional

medicinal plants (WHO, 2002). The scope and

usefulness of traditional medicine research are

considered to be of greater importance in the field of

human health care. (West R, 1984). A trip to

pharmacology: curare in medicine). Ultimately,

traditional knowledge and skills must be

approached, in a respectful and ethnically

appropriate manner that benefits the communities

involved, without disturbing the community

ecosystem. The research design must have social

value and instill awareness to improve the health and

socio-economic development of the community.

(Garima Pandey *, 2017). It is quite beneficial for

the recovery of health for those who are recovering

from illness and post-partum normal mothers (who

undergo cesarean section according to doctor's

instructions or midwife). Sauna baths bring about

many acute changes in hormone levels, some similar

to other stressful situations, some specifically for

saunas. (Ilpo T. Huhtaniemi1 et al, 2019). Sauna

bathing is a popular recreational activity. (Min

Zhuo1 et al, 2018). Most importantly, it provides

legal protection for business actors with "sauna

baths" in managing adequate business places. They

are the ones who develop a modern sauna bath.

Because the development of this Sauna Bath will

bring income for the local government. Meanwhile,

the development of a sauna bath for everyone,

especially the Karo tribe, is only for the

development of the Cultural Aspects. Because this is

a cultural preservation and the development of

traditional sauna baths. Because you feel the benefits

of sauna bathing for people who are recovering from

illness or for mothers who give birth it makes

stamina better. Also, business actors who sell basic

materials need legal protection in obtaining

sufficient basic materials. Because there are still

many of these materials that have not been

cultivated and must be looked for in the forest

around the village on Karo land. So to keep getting

the basic ingredients of oukup, the plants must be

reproduced. So to make this happen, cooperation can

be made with the Department of Agriculture and the

Forestry Service, of course, in the cultivation of

planting the basic materials for this purpose. In this

case, it is considered important that it is important to

provide legal protection for business actors in

managing adequate business premises.

Every business must think of profit (benefit), as

well as business ventures. Expected protection is

from the legal aspect (legality) so that businesses

can be formed on a legal basis such as cooperatives

in accordance with government recommendations

through the ministries of cooperatives, industry and

trade. In this case, Oukup Business Actors are

expected to be assisted to be more advanced in doing

business, still. Traditional knowledge includes

intellectual property rights so legal protection must

be made so that certainty and justice for the

communal is created.

The complexity of the issue of legal protection of

intellectual property rights in the era of globalization

is followed by various discourses. (Pulung Widhi

Hari Hananto *, et al, 2019). The correlation

between the economic benefits enjoyed and the

inherent economic value fosters the concept of

property from intellectual work (Escudero, 2012).

The interview results with the Department of

Cooperatives, Industry and Trade of Karo Regency

in the field of SMEs (Small and Medium

Enterprises), the type of Oukup, has not yet formed a

union in one container "Legal Entity namely

Cooperatives" implemented in practice. Based on

the results of interviews with the cooperative,

industry and trade offices of the Karo district in the

field of small and medium businesses (SME), it was

found that legal protection for the types of oil has

not yet been implemented in practice. So far,

traditional industries such as Oukup are still under

the ministry of tourism and the creative economy

makes it difficult for local governments to regulate

them. However, currently it is controlled by the

Ministry of Cooperatives, Industry and Trade in the

SME sector. However, for the protection of

consumers, business actors must have permission

from several related agencies, including: Health

Service, High Prosecutor's Office, Regional / City

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies

Governments through the Civil Service Police Unit.

In the future, the Actors and sellers of basic

materials must be able to be protected legally so that

they can be fostered and developed sustainably

(Interview with UKM staff, 2020). Furthermore,

business actors will receive legal protection,

certainty and fairness in operations and

development. On the other hand, the sellers of basic

materials also need to be protected in terms of

getting basic ingredients that are indeed difficult to

obtain. If they are protected by the law, plant

material can be propagated and they are no longer

looking for forests in the forest. Business Actors

hope there is legal protection for them. Because the

business they have founded is required to obtain

permits from several related agencies, including: 1.

Health Service, Traditional Medicine Permit, 2.

High Prosecutor's Office in the form of a spiritual /

traditional treatment registration form., 3. The

Cooperative, Industry and Trade Office

accommodates actors Business in the form of a

business association in the form of a Cooperative

Business Entity. 4. Civil Service Police Unit Order

license from the local regional / city government. As

a good citizen and business actor, those who already

have a business license are sufficient to support the

government in obtaining non-tax local revenue.

However, business actors have not received any

protection from the government. Specifically for

capital assistance, the Business Actor has not yet

received (Interview with a number of business

operators, 2020).

So far, the government has been impressed by

letting business people manage business ventures

without going through legal entities. One of the

impacts of a business without legal umbrella is the

potential for misuse of business forms in illegal

activities. If this business is run according to rules

such as by establishing a Cooperative as a place for

adequate business and other traditional medicines,

both the business actor and the product will be

protected. One of them is that business actors can

avoid illegal levies which have always been

deposited. So they are legally protected. One of the

things that disturbs business actors is extortion

(illegal levies) which they have had to pay to certain

parties and are not responsible.

The author concludes from the opinion of

business actors, both sellers of basic ingredients and

business actors in the sauna bath therapy section.

The most important thing is legal protection for

them is the cultural aspect. Because the legal aspect

already has related parties, the local government

through the Cooperative Health Service, the

Cooperative, Industry and Trade Office, the High

Court and the Civil Service Police Unit. In practice,

there is no good cooperation between Oukup

Business Actors and Local / City Governments. If it

is managed properly, if it is made like a Bali Spa or

Sauna Bath from Japan, it can certainly increase the

benefits that can generate income for the Regional /

City Government.

Some of the national journals have examined the

adequacy of the field of ecotourism and

environmental services as well as

anthropology.Jurnal Internasional yang mengkaji

tentang oukup Karo belum ada tapi seperti Mandi

Sauna (Sauna Bath) di daerah lain sudah ada masih

seputar bidang Kesehatan dan Farmasi. The legal

theory that becomes the knife of analysis used in this

paper is the theory of legal protection, the theory of

certainty and justice and the theory of traditional law

haar. Some things that were discussed in this

research were the opportunity for traditional

knowledge works to be sufficiently protected by law

and efforts to prepare a legal umbrella for the

harmony and harmonization of national and

international instruments from the perspective of

communal intellectual property rights.

2 METHOD

The author conducted research in Medan, Pancur

Batu and Kabanjahe. Data were obtained from

several business operators on the Jamin Ginting

Road in Medan, several sellers of basic ingredients

in the traditional market in Pancur Batu, and

interviews with the Karo District Cooperative,

Industry and Trade Office in the SME level.

The type of literature used is reference literature

that refers to secondary data materials for normative

legal research. Based on the binding power,

normative law is divided into primary, secondary,

and tertiary legal material. These materials are

obtained through library studies to be further

analysed qualitatively, holistically, and

comprehensively (Lexy j Moelon).

In addition to literature, direct interviews were

also conducted with one intellectual expert from the

USU academy, one expert on customary law among

academics at USU, three from the Cooperative

Office, Karo Regency Trade Industry, namely the

Head of Office, Head of Division and Head of UKM

Section, three Actors Oukup business is on the road

Jamin Ginting, Padang Bulan Medan, three sellers of

basic ingredients in Pancur Batu, Deli Serdang

Regency, and nine good enough recovered

Legal Protection of Oukup Karo Treatment as a Form of Communal Intellectual Property Rights

Consumers and post-partum mothers and normal

cesareans. Interviews were conducted with a model

providing questions that have been prepared by

telephone are guided free.

Data analysis in this study was conducted in a

series of activities starting from data collection to

drawing conclusions. The analytical method is

carried out with a qualitative method that is focused

on the depth of study between the concepts used or

found in research. This research is normative (Jhony

Ibrahim, 2008) empirical using secondary and

primary data. (Soerjono Soekamto, 1990) The

implementation of research is limited only to the

issue of protecting the legal knowledge of traditional

knowledge.

3 RESULTS AND DISCUSSIONS

3.1 Legal Protection of Traditional

Medical Works

Referring to the Law No. 6 of 1982 revised with

Number 28 of 2014 concerning Copyright, Number

5 of 2017 concerning Cultural Promotion, and

Number 20 of 2016 concerning brands and

geographical indications. The Ministry of Law states

that traditional knowledge includes: Technical skills

(know how), skills, innovations, concepts, learning

and other habitual practices that shape the lifestyles

of traditional communities including agricultural

knowledge, technical knowledge, ecological

knowledge, medical knowledge including medicine

related healing procedures.

Traditional knowledge in detail including:

Customs of the people, rituals (magic) and

celebrations, traditional economic systems, social

organization systems, knowledge and behavioral

habits about nature and the universe, and traditional

medicine, skills in making traditional crafts,

traditional food / drinks, and modes traditional

transport (Dewa Putu Gede, 2019).

Oukup as traditional medical knowledge of the

Karo traditional law community was mixed by

predecessors about hundreds of years ago. The

method is a steam bath (Sauna Bath), the prepared

mixture of oukup is boiled in a cooking container

(pot) on the stove with a fire temperature that is hot

enough. Then the steam from the boiled water from

the mixture is used as a treatment called oukup.

Karo. Initially traditional knowledge was discovered

or mixed by ancestors who did not have a religion

(who had a profession as a shaman / sibaso teacher).

Some of the goals of traditional medicine are

recovery for those who are recovering from illness,

recovery of extra energy for mothers after childbirth

normally. But for mothers who give birth a cesarean

section need advice and instructions from the

obstetrician or midwife who handles labor.

The treatment procedure is sufficiently divided

into several stages: Before doing the oil, the patient

must be spotted / massaged first; When undergoing

o adequate, the patient is treated from the steam of

the herbs that have been boiled; and after it is

finished, the patient takes a warm bath which is

given yellow or parem. These stages are usually

carried out for four consecutive days. The remaining

warm enough concoction water can also be bathed

by the patient.

The benefits of medication have been tried and

felt by many users both in the city and in the region.

Furthermore, the results of this study are expected to

be very useful to legally protect sufficient

knowledge that exists with business actors, sellers of

basic ingredients, consumers and no less important

is the government, in this case the Karo district

government as its guardian. Upholding traditional

communal knowledge is very beneficial for all

parties, especially the government and community

activists and users to legally protect the Intellectual

Property Rights in the traditional work.

One of the bad habits in Indonesia is that if there

is an original then there is always a fake. One effect

of this habit is the lack of government appreciation

for one's work. Another impact of this custom is that

there are many Indonesian works that are claimed by

foreign countries such as the gondang Sembilan

Mandailing claimed by the State of Malaysia.

Luckily Malaysia cannot make patent rights except

for the right to use.

In designing communal property rights many

obstacles are often found. There are two reasons

why most indigenous peoples cannot accept the

unpleasant reality in which their work is claimed by

others, namely: 1) The authors, artists, and creators

of traditional societies very rarely receive adequate

financial rewards for intellectual property in the

form of exploited traditional knowledge. 2) The

unauthorized use of exploited traditional knowledge

works is considered to offend the creator community

such as commercialization which is prohibited by

religion or custom (Tim Linsey, 2001). Based on

these obstacles, in this study steps were taken to

protect traditional knowledge so that one day it

could be a geographical indication of the Karo

Regency to support the Tourism and Economy of the

local area.

CESIT 2020 - International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies

3.2 Legal Umbrella Efforts against

Communal Intellectual Property

Rights

Protection of traditional knowledge refers to the

National Legal Instrument, henceforth referring to

the International Legal Instrument. The National

Legal Instrument was started in Law 6 of 1982

revised through No.6 of 1982, and revised Number

28 of 2014 concerning Copyrights, Number 5 of

2017 concerning Cultural Promotion, and Law

Number 20 of 2016 concerning Brands and

Geographical Indications. (Saidin, 2016). Whereas

the International Law Instrument began in 1976

through the World Intellectual Property

Organization (WIPO) and progressed to the Tunis

Model Law on Copy Right (Tunis Model Law).

Then The Tunis Model Law and the United Nation

on Education Social and Cultural Organization

(UNESCO) arrange The Model of Provocation for

National Media Againts Illicit Explotation and Other

Prejudicial Actions (Model Provisions) (Saidin,

2016).

The instruments governing National Law and

International Law Instruments are in harmony and

harmony. But the rules governing traditional medical

knowledge about oukup have not yet been regulated

in the form of regional regulations. In this case, the

national instrument is assumed to be in harmony and

harmony with international instruments. The

reference for harmonization and harmonization of

regional regulations to national legal instruments is

the recruitment of laws and regulations of the

Republic of Indonesia. The law must remain a

guideline for the regulations below such as the

protection of communal intellectual property rights.

According to Rob Edger, it is found that the

object of geographical indication protection is part

of the common property, which is basically the use

of the object carried out jointly by the parties

concerned in the region. Common property

ownership is inherent in the nature of communal

rights. Collective rights or group rights are

formulated by Rob Edger, as "are rights held by

groups or sets, rather than by individuals" l. A

'group' is generally a set of individuals with strong

racial, state, religious, or linguistic ties. (Rob Edger,

2009). The collective rights formulated by Rob

Edger give meaning as the rights possessed by a

group in relation to the power of race, state, region

or language. The course of history shows that

collective rights are more directed towards issues

that concern the public interest. While the use of the

term ownership for the regime of geographical

indications, is more appropriate as a right that is not

only collective but refers to the communal nature

(based on local communities) (Djulaeka, 2014).

In the perspective of intellectual property rights,

the communal ownership system is unknown or not

even recognized. (WTO Member Agreement as part

of legal protection based on community rights).

Customary Law introduces the attitude of

togetherness and mutual cooperation as a mirror of

the creation of a peaceful, prosperous, just and

prosperous society. Customary Law has its roots in

traditional culture and the law that lives among

people incarnates the real legal feelings of the

people (Soepomo, 2003). History shows that both

Van Vollen Hoven and Ter Haar strive to maintain

and implement customary law as appropriate for

Indonesian people (Nurul Barizah, 2010).

With a starting point on the mindset of the

concept of Customary Law, I Gede A.B Wiranata

revealed, that in the order of communal thinking,

individuals will always place a pattern of behavior

prioritizing the group ego and personal ego will be

defeated by group superiority. (I Gede A.B

Wiranata, 2005).

Movable objects can be recognized as tangible

and non-tangible objects. In the perspective of the

study of property law (assets) and its relation to

intellectual property rights, the territorial jurisdiction

is more appropriate. In accordance with the law of

wealth in the perspective of private law (Civil), the

law governs the possession of rights over objects

other than land (Iman Sudiyat, 1981). Legal

transplants that can adopt customary law with

international legal instruments can be assessed from

a different answer in the form of comparative law

(methods or techniques of learning and research)

(Alan Watson Translation, 1993). Legal

transplantation then refers to civil law adopted from

the Netherlands.

4 CONCLUSIONS AND

RECOMMENDATIONS

4.1 Conclusions

Indigenous and tribal peoples' laws require the

protection of traditional works as ancestral heritage.

This is because the customary law community wants

to show their existence and identity as a social group

in the midst of a larger social life. The openness of

works of traditional knowledge in this case o Karo

as an alternative treatment needs to be protected.

Legal Protection of Oukup Karo Treatment as a Form of Communal Intellectual Property Rights

Indonesia adopted the Tunis Model Law which

refers to Law No. 6 of 1982 revised No. 28 of 2014

Advancement of Culture, No.20 of 2016 concerning

Brands and Geographical Indications. But in good

practice the rules that protect business actors, sellers

of basic ingredients are sufficient and consumers do

not have definite rules. However, in good practice,

the rules protecting Oukup Business and Sufficient

Basic ingredients Actors, and Consumers have no

definite / specific rules.

4.2 Recommendations

Implementation of the protection of traditional

knowledge specifically o Karo needs to get attention

in its own regulations. The Government, in this case

the Karo Level II Regional Government Karo

through the Department of Cooperatives, Industry

and Trade and the Ministry, Health Service, High

Court, Regional / City Government through the Civil

Service Police Unit, are expected to be able to make

traditional knowledge rules in the form of regional

regulations and to socialize the cooperative business

form as a legal entity and to think about the

cultivation of basic ingredients, in particular the

making of Karo oukup, of course.

From history it is clear that harmony and

harmonization began in 1982, the UUHC adopte`d

the Tunis Model Law. National Legal Instruments

and International Legal Instruments can be used as a

basis for Traditional Knowledge. At the national

level the basis for traditional knowledge protection

refers to Law No. 6 of 1982 (UUHC) revision No.28

concerning the Advancement of Culture and Law

No.20 of 2016 concerning Brands and Geographical

Indications. The North Sumatra Ministry of Law and

Human Rights continues to try to divideento enough

Karo to be preserved. Implementers to curb business

operators are carried out by cooperatives, industry

and trade services. Health Service, High Prosecutor's

Office and Local / Municipal Government through

the Civil Service Police. According to the author,

this regulation on Oukup Karo, at least can issue a

"Circular" issued by the Karo Adat Association /

Institution. Collected in one forum called BABKI

(Indonesian Karo Cultural Customary Center).

Chaired by Drs. Sarjani Tarigan, MSP. Because if

you have to wait to make a Regional Regulation on

oukup, it can wait quite a long time. Meanwhile, the

problem regarding the Karo oukup business has long

been rolling in the business actors and the people of

Medan in particular. Especially about the dilemma

of "plus-plus" which is very unsettling for the

community.

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Legal Protection of Oukup Karo Treatment as a Form of Communal Intellectual Property Rights