Gending Sriwijayadance As Indonesian Cultural Heritage: In The Legal Perspective Of Intellectual Property

This title (paper) has been presented at International Knowledge virtual Conference 2021 (IKC2021) organised by Pustaka Negeri Sarawak. The paper was prepared by Annalisa. Y, Anisa Amalia A.H, and Murzal. from Faculty Of Law Sriwijaya University, Palembang, Indonesia.

Abstract

Gending Sriwijaya Dance as an Indonesian Cultural Heritage is a traditional dance of the people of the city of Palembang, South Sumatra. Historically, the center of the Sriwijaya kingdom was in the city of Palembang, which is known as the cultural center. Gending Sriwijaya Dance was designated as an intangible cultural heritage in 2014 based on the Decree of the Minister of Education and Culture of the Republic of Indonesia Number 270/P/2014. The purpose of this paper is to describe the existence of the GendingSriwijaya Dance in South Sumatra which is legally protected in several laws and regulations in Indonesia. The research method in this paper uses normative legal research by examining primary and secondary legal materials. This study uses a statutory, historical and conceptual approaches. The results show that historically the emergence of this dance began with a request from the Japanese government which was initiated in 1942-1943 in the Residency of Palembang to Hodohan (Japanese Information Service). Gending Sriwijaya dance is a symbol of respect for the people of South Sumatra for the great guests who visit the landd of Sriwijaya. In the Advancement of Culture, the existence of this dance is a form of cultural advancement where the State advances Indonesian National Culture in the midst of world civilization and makes Culture an investment to build the nation's future and civilization.

Keywords: traditional cultural expressions; copyright; promotion of culture; gendingsriwijaya dance; cultural heritage.

Introduction

Gending Sriwijaya Dance is a welcome dance which is a symbol of respect from the people of South Sumatra to the honorable guests who visit Sriwijaya. The emergence of this dance originated from a request from the Japanese government in the Residency of Palembang (currently a Province of South Sumatra) to Hodohan (Japan Information Service) to create a song and dance that will be used to welcome guests visiting South Sumatra in an official event. The Gending Sriwijaya dance was performed for the first time on Thursday, August 2, 1945, precisely in the afternoon in a welcoming ceremony for the dignitary of the Japanese nation M. Syafei as Chairman of the Sumatran Tjuo Sangi In (Sumatra People's Representative Council) in the courtyard of the Great Mosque of Palembang City. The first performance of the Gending Sriwijaya dance featured by dancers who were virgin and had beautiful faces(Treny Hera 2016).

The Gending Sriwijaya dance is danced by approximately 13 dancers consisting of 9 core dancers, all of whom are women with their respective roles, namely one main dancer carries the slap (containing betel leaf, gambir, tobacco, areca nut and lime); two dancers carry pridon (a receptaclemade of brass metal to spit for people who eat betel), six accompanying dancers (three on the right and three on the left), one person carries a greatness umbrella (carried by a man), one Gending Sriwijaya singer, and two spear bearers (male). Nine dancers symbolize the number of rivers in South Sumatra(Treny Hera 2016). This dance is a combination of dance, poetry, and rhythm.The dancers in front brought slaps as an opening to be served to special guests who came, accompanied by two dancers who brought pridons made of brass. Opening offerings, according to the original dance, may only be performed by princesses, sultans, or nobles. The bearer of the pridon is usually a friend or servant of the princess. So did the other dancers. This dance is inspired by the success of the local wisdom of the Sriwijaya Kingdom. The meaning of the Gending Sriwijaya dance movement symbolizes the relationship between humans and the creator, the relationship between humans and humans, and the relationship between humans and the universe (Treny Hera 2016). These dance movements contain the meaning of life and commemorate the glory of Sriwijaya in South Sumatra.

Gending Sriwijaya Dance was created by 7 people where each person has their own role in composing the making of Gending Sriwijaya Dance. Achmad Dahlan Mahibat and Haji Gung and Miss Tina worked on the song of Gending Sriwijaya Dance and continued to work on lyrics and rhythms which then was perfected by Nungtjik AR. Then Sukaenah A. Rozak with Miss Tina took care of the property and clothing that the dancers would wear, and motion guide by cultural practitioners RM Akib and R Husin Natodoradjo (Dance Gending Sriwijaya, 2010, retrieved from https://warisankultur.kemdikbud.go.id/) . Gending Sriwijaya dance was also created with different cultural influences which are reflected in the color and completeness of the clothes and accessories used. The combination of Malay, Javanese and Chinese culture is very harmonious and balanced. Javanese elements can be found in the dresses worn by dancers, namely a kind of dodot, when using a sewn songket or songket. Then one can recognize Malay culture from the characteristics of the clothes in the form of baju kurung, scarves and sarung. The style of Chinese culture can be recognized from the colors, motifs, and images of dancers' accessories, namely golden red clothes, the use of nails, patterned dragons and snakes. This blend of cultural elements is reflected in the clothes of the dancers. In addition, dancers use “aesan gede”, an ornament that uses sarung and kemben, the Kasuhun crown(Treny Hera 2016). During the Indonesian Independence period, Gending Sriwijaya was used as a dance to welcome official government guests visiting South Sumatra(Ari Welianto 2021). The protection of the Sriwijaya Gending Dance has been stated in various regulations, one of which is Law Number 28 of 2014 concerning Copyright. Dance is a protected creation based on creation in the fields of science, art, and literature as stated in Article 40 paragraph (1) letter e of Law No. 28 of 2014 concerning Copyright.

Based on the article, it is explained that the juridical basis for protection from the existence of copyrighted works in the field of dance in Indonesia, such as the Gending Sriwijaya Dance, which originated from South Sumatra. As a classical dance art, Gending Sriwijaya Dance can also be categorized as a Traditional Cultural Expression, wherein article 38 number (1) of Law No. 28 of 2014 concerning Copyright also explains that "Copyrights on traditional cultural expressions are held by the State." Traditional Cultural Expressions/Expressions of Folklore can be categorized as a form of traditional intellectual property. Gending Sriwijaya Dance can be categorized as an Intangible Cultural Heritage of South Sumatra Province based on the Decree of the Minister of Education and Culture of the Republic of Indonesia Number 270/P/2014 concerning the Determination of Indonesian Intangible Cultural Heritage in 2014. Intangible cultural heritage is non-holdable (intangible/abstract), such as concepts and technology where their nature can pass and just disappear along with the times. There is a dilemma in protecting Intellectual Property Rights regarding cultural heritage in Indonesia, due to the lack of awareness among community members about the importance of legal protection for knowledge and traditional cultural expressions so that undesirable things can happen in the future regarding the ownership of the cultural heritage.

To perform the Gending Sriwijaya Dance, you must apply the applicable Standard Operating Procedure and the Gending Sriwijaya Dance performance is only allowed to welcome certain people, namely:
a. President as Head of State
b. Ambassador of the Republic of Indonesia
c. Commander of the Armed Forces
d. Incumbent Ministers

Besides these four groups, the Gending Sriwijaya Dance should not be allowed to perform, sinceit has sacred values that must be upheld, and can be categorized as a traditional value owned by the Sriwijaya Gending Dance as an Intangible Cultural Heritage owned by the people of South Sumatra(Dian Permata Suri, Interview 9 April 2021). Based on the above background, the problem that will be answered in this paper is how the legal protection of the Sriwijaya Gending Dance as an Intangible Cultural Heritage in Indonesia. The purpose of this paper is to find out the legal protection arrangements for Gending Sriwijaya Dance as Copyrights owned by traditional community groups. In addition, it is also to analyze that the Sriwijaya Gending Dance is an intangible cultural heritage which is implemented in the State of Indonesia, as well as an art that is part of Copyright as regulated in Law Number 28 of 2014, as an Expression of Traditional Culture and as a Cultural Advancement.

Legal Protection Of Sriwijaya Gending Dance As Intangible Cultural Heritage In Indonesia

Gending Sriwijaya Dance as an Intangible Cultural Heritage

In 2014, based on the Decree of the Minister of Education and Culture of the Republic of Indonesia Number 270/P/2014 concerning the Determination of Indonesian Intangible Cultural Heritage, the Sriwijaya Gending Dance has been established as one of the Intangible Cultural Heritage owned by Indonesia. Thus, the existence of the Gending Sriwijaya dance has been officially recognized as part of the Intangible Cultural Heritage based on the provisions stipulated in the Regulation of the Minister of Education and Culture of the Republic of Indonesia Number 106 of 2013 concerning the Intangible Cultural Heritage of Indonesia. With the stipulation of the Sriwijaya Gending Dance as an Indonesian Intangible Cultural Heritage, it should be the duty of everyone and the Indonesian people to preserve the existence of such a cultural heritage. The implementation can be carried out in a coordinated manner by the Regional Government to each person and the existing customary law community. This was done as one of the efforts in preserving the Sriwijaya Gending Dance as one of the Intangible Cultural Heritage of Indonesia. The preservation of the Sriwijaya Gending Dance is carried out by continuing to wear or present the dance, if there are dignitaries who visit the Sriwijaya land. This is done as a way to introduce and maintain the existence of Gending Sriwijaya Dance.

Legal Protection of Dance under the Copyright Act and the Law for the Promotion of Culture

Legal Protection of Dance Based on Law No. 28 of 2014 concerning Copyright
Indonesia as a developing country that is rich in natural resources, arts, and culture have a variety of traditional knowledge. Its requires recognition and legal protection that is able to take care of ownership of traditional knowledge, as the creation of a nation that gained internationally recognition(Rongiyati 2011).In this case, it discusses Law No. 28 of 2014 concerning Copyright and Law No. 5 of 2017 concerning the Advancement of Culture. Article 40 paragraph (1) letter e of Law Number 28 of 2014 concerning Copyright explains that:
"Creation that is protected includes works in the fields of science, art, and literature, consisting of drama, musical drama, dance, choreography, wayang, and pantomime"
Based on the article, it is clear that the protection of the arts includes dance, such as one example, namely the Gending Sriwijaya Dance which is the cultural heritage of Sriwijaya land (Palembang, South Sumatra). Meanwhile, the protection of classical dance has been stated in Article 38 of the Copyright Law, namely:
1) Copyrights for traditional cultural expressions are held by the State.
2) The state is obligated to make an inventory, and maintain traditional cultural expressions as referred to in paragraph (1).
3) The use of traditional cultural expressions as referred to in paragraph (1) shall regard to the values that live in the community that bears it.
4) Further provisions regarding Copyrights held by the State on traditional cultural expressions as referred to in paragraph (1) shall be regulated by a Government Regulation.

Elucidation of Article 38 states that "Traditional Cultural Expressions" include one or a combination of forms of expression such as motion, including, among others, dance; and other folk cultural products as outlined in article 38, in this case including the art of dance whose creators are not known, where this is one way to prevent commercialization or monopoly as well as various actions that can damage or commercial use without the permission the State of Republic of Indonesia as Copyright Holder(Sukihana and Kurniawan 2018).

Copyright aims to provide rewards for the creator and this is a moral argument, an author's right system, namely the emphasis on protecting the personality of the creator through his creation more than protecting the copyrighted work itself(Rahmi Jened 2001). Sanctions or criminal provisions for parties who have caused harm to copyright have been regulated in articles 112-120 of the Copyright Law. The contents of Article 112 are "Everyone who without rights commits the acts as referred to in Article 7 paragraph (3) and/or Article 52 for Commercial Use, shall be punished with imprisonment for a maximum of 2 (two) years and/or a fine of IDR 300,000,000 (three hundred million rupiah) at the most.” For a criminal offense against copyright is to adhere to a denunciation offense, where only the aggrieved party can sue. In other words, a denunciation offense is a criminal act that can only be prosecuted if there is a denunciation from the person who has been harmed.


Legal Protection of Dance Based on Law no. 5 of 2017 concerning the Advancement of Culture
Article 1 of Law No. 5 of 2017 concerning the Promotion of Culture explains that "Culture is everything related to creativity, taste, initiative, and the work of the community." Meanwhile, "Cultural Advancement is an effort to increase cultural resilience and the contribution of Indonesian culture in the midst of world civilization through the Protection, Development, Utilization, and Fostering of Culture." This law explains the importance of providing protection for culture as the identity of a nation. Classify objects of Cultural Advancement as mentioned in article 5 include: oral traditions; manuscripts; customs; rites; traditional knowledge; traditional technology; art; language; folk games; and traditional sports.

Gending Sriwijaya dance can be categorized as art, where in the explanation of article 5 letter g states that "art" is an individual(Roisah et al. 2014), collective, or communal artistic expression, which is based on cultural heritage or based on the creativity of new creations, which is manifested in various forms of activities and/or medium. The arts referred to include performing arts (such as the Gending Sriwijaya Dance), visual arts, literary arts, films, music arts, and media arts.

In determining a culture to become an intangible cultural heritage, of course, it cannot be separated from the role of the local government which has attempted to collect and register its cultural arts at the Ministry of Education and Culture of the Republic of Indonesia. Article 11 of the Law for the Advancement of Culture explains that:
1) District/municipality Regional Cultural Ideas become the basis for preparation and are included in the provincial Regional Cultural Thoughts.
2) Provincial Cultural Ideas become the basic material for the preparation of the Cultural Strategy.
3) The Cultural Strategy becomes the basis for the preparation of the Master Plan for the Advancement of Culture.
4) The Master Plan for the Advancement of Culture becomes the basis for preparation and is included in the long-term development plan and the medium-term development plan.

Article 16 of the Law for the Advancement of Culture also explains the inventory of culture which in this case consists of several stages, namely:
1) Inventory of Cultural Advancement Objects consists of the following stages:

a. recording and documentation;

b. determination; and

c. data updating.

2) Inventory of Objects for the Advancement of Culture is carried out through the Integrated Cultural Data Collection System.
Regarding the inventory of a culture that exists in South Sumatra, until now, the South Sumatra Provincial Government has continued to carry out a series of activities to collect various cultures that exist throughout the South Sumatra area. One of them is the way that each region is free to recommend its culture, which is then registered as the cultural heritage of the Indonesian state. Since 2013 until now, it is known that there are around 34 cultures from various regions in South Sumatra have been registered as Indonesian Intangible Cultural Heritage originating from South Sumatra, and one of them is Gending Sriwijaya Dance(Dian Permata Suri, Head of the Cultural Values and Regional Language Section of the Culture and Tourism Office of South Sumatra Province. Interview took place at the Office of Culture and Tourism of South Sumatra Province, April 9, 2021). Hereinafter, the Central Government and/or Regional Governments in accordance with their respective authorities are required to record and document the Objects of Cultural Advancement (Article 17 of the Law on the Advancement of Culture). Although recording and documentation can be carried out by everyone, in order to ensure that there are parties who record and document objects of cultural promotion, the law imposes obligations on the Government, both the Central Government and Regional Governments, to carry out recording and documentation(Agus Sardjono 2019).

Based on these articles, a series of efforts to protect the culture of each region has been explained. Like the Gending Sriwijaya Dance, which has been designated as an Intangible Cultural Heritage of Indonesia, of course, it has gone through various series. The steps in the Advancement of Culture include:

1. Inventory.
Article 18 paragraph (1) of the Law for the Advancement of Culture affirms that 'everyone' can record and document objects of cultural promotion. It means that anyone can freely make notes to the local government regarding their culture to be submitted as an Intangible Cultural Heritage. However, to ensure that the existence of culture belongs to certain community groups, then Article 19 of the Law on the Advancement of Culture emphasizes the necessity to verify and validate that the results of recording and documentation are correct and can be accounted for(Rongiyati 2018).

2. Development
Based on the Law for the Advancement of Culture of 2017, the Government is responsible for carrying out activities for the development of cultural elements. The provisions regarding this development are closely related to the provisions regarding the inventory of objects for the promotion of culture. To know that an invention comes from the development of traditional knowledge, it is certain that a database on traditional knowledge is a must. Without a database it is impossible to prove that an invention is derived from the development of traditional knowledge.

3. Utilization
The Law for the Advancement of Culture of 2017 opens up wide opportunities for the public to use the object of cultural promotion as a source in making products. In the context of benefit sharing on the utilization of objects of cultural promotion, the community that bears the benefits of benefit sharing after the utilization of objects of cultural promotion. It's just that the use of the object of cultural advancement must be done without destroying the noble values and wisdom contained in the traditional art itself. In addition, the utilization carried out by large companies or foreign parties must be carried out by first obtaining permission from the public authority.

4. Promotion
Promotion effort in intangible cultural heritage is an effort to introduce the existence of Indonesian traditional culture to the world.The promotion is carried out so that Indonesian culture can be known by other nations. When the nations of the world enjoy Indonesian cultural products, it is not impossible that the cultural elements will develop in such a way, which in the business realm will become the superior product of the Indonesian.

5. Preservation
The Law for the Advancement of Culture of 2017 requires the Government to carry out conservation or maintenance efforts. Likewise, the wider community is also given the opportunity to actively participate in preserving the objects of cultural advancement. Preservation efforts have been stated in Article 24 paragraph (4) which includes the following activities:
Maintenance of Objects for the Advancement of Culture is carried out by:
a. maintain the nobility and wisdom of the Object of Cultural Advancement;
b. using the Object of Cultural Advancement in daily life;
c. maintain the diversity of Objects for the Advancement of Culture;
d. revive and maintain the Cultural ecosystem for each Object of Cultural Advancement; and
e. bequeath the Object of Cultural Advancement to the next generation.

Based on the efforts that have been outlined, the process of maintaining the Gending Sriwijaya Dance is also carried out by keep maintaining its nobility and wisdom.In this case, the dance form of the Gending Sriwijaya Dance is maintained as the original dance or as it was created. As for the use of Sriwijaya Gending Dance, it is still used with rules that are only intended for certain people. Gending Sriwijaya Dance also continues to be passed on to future generations, by introducing and teaching a series of dances and the rules used by Gending Sriwijaya Dance.

Legal Protection of Sriwijaya Gending Dance Based on the Regional Regulation of the Province of South Sumatra Number 4 of 2015 concerning the Preservation of Regional Culture

Based on the general provisions in Article 1 of the Regional Regulation of South Sumatra Province No. 4 of 2015 concerning the Preservation of Regional Culture, it is explained that "Culture is the whole idea, behavior and work of humans and/or human groups both physical and non-physical which is obtained through the learning process and adaptation to environment." This means that every thing caused or created by humans obtained in the process of learning and adaptation from the environment can be defined as culture. Article 2 of the Regional Regulation of South Sumatra Province No. 4 of 2015 also includes the objectives of cultural preservation, namely: cultural preservation aims to:

(1) protect and secure regional cultural heritage from becoming extinct or recognized as culture by other countries/regions

Point a of Article 2 of the Regional Regulation of South Sumatra Province No. 4 of 2015defines that every person or community has a sense to protect and secure the existing regional cultural heritage so that the culture can remain sustainable. To achieve the goal of cultural preservation, the role of the community is also very. The role of the local community can be carried out by individuals, community organizations in the field of culture and/or cultural communication forums.

Based on article 9 of the Regional Regulation of South Sumatra Province No. 4 of 2015 the Cultural Preservation process is carried out through 5 stages, namely Protection, Development, Utilization, Maintenance, Guidance and Supervision. Based on these stages, the Regional Government plays an important role in the preservation of a culture, in this case the community also helps collect and provide information related to its cultural heritage which can then be processed by the regional government regarding the provision of legal protection. The financing for the implementation of cultural preservation activities is carried out by the Provincial Government which comes from the Regional Revenue and Expenditure Budget and other legal and non-binding sources based on the provisions of the legislation.

Protection of the Art of Gending Sriwijaya Dance based on Regional Regulation No. 4 of 2015 concerning Cultural Preservation. Article 1 explains that the value of tradition, which is an abstract concept of a big problem of humanity is so important and useful in human life which is reflected in attitudes and behavior that always hold fast and are based on customs. Reflecting on the history of the formation of the Sriwijaya Gending Dance, which was intended as a welcoming dance for dignitaries visiting South Sumatra, even now the Gending Sriwijaya Dance is still intended that way.

Conclusion

The form of legal protection for the Sriwijaya Gending Dance has been regulated in Indonesian legislation. The need for this protection is so that in the future there will be no violation of the law, both in the fields of copyright, cultural promotion, traditional cultural expressions and intangible cultural heritage. Gending Sriwijaya Dance is a dance offering for the honorable guests who come to Sriwijaya land as a high respect to them. The meaning of the Gending Sriwijaya dance movement symbolizes the relationship between humans and the creator, the relationship between humans and humans, and the relationship between humans and the universe.

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