1. Case study : Digitisation & online publication of Indonesian Cultural Heritage in the Netherlands 1

2. Index 1.Indonesian Materials as Intangible Cultural Heritage 2.Digitisation & Online publication Case Study: Museum for the Tropics 1.Copyright - Objects, subjects, rights and exceptions 2.Neighbouring Rights - Objects, subjects, rights and exceptions 3.Protection of TCE & digitisation/publication of Indonesian folklore Unpublished and orphan works and permission renewal Protection of folklore in Indonesia 3. Conclusion 2

3. 1.Indonesian Materials as Intangible Cultural Heritage UNESCO 2003 Convention in the Safeguarding of the Intangible Cultural Heritage Intangible Cultural Heritage: the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage Public tasks: Identification, documentation, safeguarding and presentation of intangible cultural heritage Tropenmuseum (Museum for the Tropics) – Amsterdam National Museum of Ethnology – Leiden Nusantara – Delft Netherlands Indies Movies Archive 3

4. Museum for the Tropics (Tropenmuseum) The Tropenmuseum presents, studies and promotes knowledge of and interaction with other cultures. The museum offers perception and experience to a wide and diverse audience using the full spectrum of museological means, which includes exhibitions, collections and expertise, publications, the historic building and educational and other activities. The Royal Tropical Institute’s museum is internationally involved in the areas of culture and development. Collection: ethnographical information - Intangible Cultural Heritage; - Photo’s - Paintings - Audiovisual recordings - Objects/artefacts - Traditional Cultural Expressions 4

5. Museum for the Tropics (Tropenmuseum) www.tropenmuseum.nl 5

6. Western approach: individual property Individual property is protected Collection-items of Museum for the Tropics can traditionally be protected by Intellectual Property (copyright, neighbouring rights, databases right) which right holders are individuals, private or governmental institutions. Berne Convention TRIPS-agreement (WTO) WIPO Copyright Treaty, Phonogrammes treaty 6

7. Copyright - Digitisation & Online Publication Copyright – Objects Literary, scientific or artistic works Unique, original character Personal Imprint of the creator Non exhaustive list: books, pamphlets, newspapers, periodicals and all other writings; dramatic and dramatico-musical works; recitations; choreographic works and entertainments in dumb show; musical works, with or without words; drawings, paintings, works of architecture and sculpture, lithographs, engravings and the like; geographical maps; drafts, sketches and three-dimensional works relating to architecture, geography, topography or other sciences; photographic works; cinematographic works; works of applied art and industrial designs and models; computer programs and the preparatory material; 7

8. Copyright - Digitisation & Online Publication Copyright – Subjects: Right holders Creator, successors, beneficiaries Government Employer General: the creator of a work [author, photographer, sculptor, architect, programmer etc] automatically becomes copyright holder to a work 8

9. Copyright - Digitisation & Online Publication Copyright – Duration 70 years p.m.a. Orphan works: 70 years after first publication Unpublished works: 70 years p.m.a. Public domain -Out of copyright works -Non-IP protected material Private domain - In copyright works 9

10. Copyright - Digitisation & Online Publication Copyright – Exclusive rights Exploitation Rights Reproducing the work Digitising analogue original works by Making (preservation) copies of a digital work Downloading a work from internet Making the work available to the public Uploading a digital reproduction to a website Adding works to a publicly accessible database Posting audiovisual (digitised) works to youtube Lend/rent digital copies (e-books) of work Moral Rights Droit de divulgation [publication right] Droit de paternité [right to be mentioned as author] Droit au repentir [right to withdrawal] Droit au respect [right to prevent modification] 10

11. Copyright - Digitisation & Online Publication Copyright – exceptions Education exception reproduction & making available of single works allowed for non-commercial educational purposes equitable remuneration Applicable to non-commercial, publicly accessible libraries, archives and museums: Preservation exception Reproduction of single collection-items For purposes of restoration, retention and rendering accessible Access to closed-circuit networks exception Making digitised collection-items available to the visitors Stored on the closed-circuit network of the CHI By means of in-house computer terminals 11

12. Neighbouring rights - Digitisation & Online Publication Neighbouring rights – Objects & [Subjects] Performance [the performer] Recording [the performer /| producer of film] The first fixation of sounds /| images Phonogram Recording of sounds (of a performance) Broadcast Distribution of programmes Neighbouring rights – Duration 50 years From first performance, manufacturing of, sound recording, fixation or broadcast 12

13. Neighbouring rights - Digitisation & Online Publication Neighbouring rights – exclusive rights Exploitation rights Performer Recording of a performance Reproduction/rental/sales/other ‘bringing into circulation’ Broadcasting/rebroadcasting or other communication to the public Phonogram producer Reproduction of a recording manufactured by him Rental/sales/other ‘bringing into circulation Broadcasting/rebroadcasting or other communication to the public Moral Rights of performer Right to be mentioned as performer under his name Right to prevent alteration Right to prevent modification/distortion/mutilation 13

14. Neighbouring rights - Digitisation & Online Publication Neighbouring rights – exceptions (parallel to copyright) Education exception Recording, reproduction, broadcast allowed for non-commercial educational purposes Applicable to non-commercial, publicly accessible libraries, archives and museums: Preservation exception Reproduction of first recording /| AV-fixation For purposes of retention and rendering accessible Access to closed-circuit networks exception Making available recordings/fixations forming part of the collection of the CHI Stored on the closed-circuit network of the CHI By means of in-house computer terminals 14

15. Copyright - Digitisation & Online Publication Copyright – Neighbouring rights: Application Composition: new interpretation of a traditional song Sound recording of performance CD-sale museum shop Analogue Archiving Digital Archiving Making available in house Neighouring rights: -Performers -Phonogram manufacturer Copyright: - composer Making available online CHI 15

16. Other legal, moral and practical issues Orphan works and unpublished works Orphan works, of which creator cannot be found after a diligent search, may not be digitised and published during copyright period Unpublished ethnographical works, that have been recorded (with permission) for archival purposes, may not be disclosed online: new permission is necessary during copyright period Traditional Cultural Expressions are often orphan works and unpublished works in view of the Dutch Copyright Act. 16

17. Other legal, moral and practical issues Reproduction and making available of Intangible Cultural Heritage: Traditional Cultural Expressions Western concept of ICH as subject to ‘private’ ownership might not be ‘compatible’ with non-western (non-individualistic) cultures Indonesian indigenous traditions may be based on community- culture Therefore, Intangible Cultural Heritage, f.e. Traditional Cultural Expressions are cultural/economic assets to local local communities International Protection of TCE since UN: Declaration on the Rights of Indigenous Peoples (WIPO: Revised Draft Provisions for the protection of Traditional Cultural Expressions/Expressions of Folklore) Art. 10 Copyright Act Indonesia 17

18. Other legal, moral and practical issues Reproduction and making available of ICH : TCE UN: Declaration on the Rights of Indigenous Peoples Article 31 1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions. 18

19. Other legal, moral and practical issues Reproduction and making available of ICH : TCE Indonesian Copyright Act Article 10 1.The State shall hold the Copyright for works from prehistoric remains, historical and other national cultural objects. 2.The State shall hold the Copyright for folklores and works of popular culture that are commonly owned, such as stories, legends, folk tales, epics, songs, handicrafts, choreography, dances, calligraphies and other artistic works. 3.To publish or reproduce the works as referred to in paragraph (2), any person who is not the citizen of Indonesia shall, firstly, seek permission from the institution related to the matter. 4.Further provisions regarding Copyright that are held by the State, as referred to in this Article, shall be regulated by Government Regulation. Article 31 1. The Copyright on works which are held or exercised by the State, pursuant to: a. Article 10 paragraph (2), shall be valid without any time limit; 19

20. Other legal, moral and practical issues Reproduction and making available of ICH : TCE Indonesian Copyright Act Article 15 e. limited reproduction of a work other than computer program limitedly by using any means whatsoever or by employing a similar process by a public library, scientific or educational institution and documentation centre of non-commercial nature, solely for the purpose of conducting their activities; 20

21. Other legal, moral and practical issues Reproduction and making available of ICH : TCE Indonesian Copyright Act Public domain -Out of copyright works -Non-IP protected material Private domain -Original works, - Protection for 50 years p.m.a. Communal domain perpetual prot. TCE, stories, legends, fol tales, epics, songs, handicrafts, choreography, dances calligraphies and other artistic wors Implications for digitisation/making available process Museum for the Tropics? 21

22. Conclusions 1.CHI’s play an important role in the protection of cultural diversity by safeguarding Intangible Cultural Heritage: for example Museum for the Tropics 2.Digitisation & online publication of collection items facilitates the public tasks of CHI’s 3.Protection of individual intellectual property rights might cause an obstacle for digitisation and online publication of cultural/ethnological information 4.Despite exceptions to copyright and neighbouring rights, a gap exists in digitally accessible cultural information due to copyright protection of orphan works and unpublished works 5.Indonesian Copyright Law institutes the perpetual protection against unauthorised reproduction and making available to the public of certain Traditional Cultural Expressions Question: Should the protection of TCE’s (as stated in Indonesian Copyright Law) impose a barrier for digitisation and online publication of non-commercial ethnographical institutions in view of their public tasks on the safeguarding and providing access to information representing and therefore protecting cultural diversity? 22