Creativity, like pornography, is hard to define causing US Supreme Court Justice Potter Stewart in the Eisenhower era to remark in a famous obscenity ruling “....it may be hard, but I know it when I see it.”
Two Indonesian companies, Out of Asia and John Hardy, have had conspicuous international success by combining traditional Indonesian craftsmanship with their own take on traditional motifs, adding good marketing skills and cash. However the John Hardy company is currently drawing serious flak, embroiled in an unseemly brouhaha over the emotive question of ownership of traditional motifs. This is one of Bali’s most well known and most successful companies, with over 800 local employees on a campus-like plant. However, hundreds of local artisans and entrepreneurs demonstrated recently at the office of the Regional Council in the belief that the company was ‘stealing’ Bali’s creative heritage by copyrighting some 800 traditional designs overseas with 400 further copyrights pending, then legally enforcing ‘ownership’ against any Balinese-based designer or entrepreneur with the temerity to sell their own designs overseas. The local ‘blogosphere’ is aboil with outraged, if uninformed, rhetoric demanding an end to the cunning foreigner’s exploitation of Bali’s creative “commons” and bullying honest craftsmen by using the law as a bludgeon to deny working people the fruits of their labour.
This current furore stems from a prosecution by the police of one Ketut Deny Aryasa who, with American businesswoman Christina Tobin, a frequent visitor to Bali, is part-owner of PT Bali Jewelry and was a former employee of John Hardy’s local manufacturing arm PT Karya Tangan Indah (KTI). He is charged in the Denpasar courts with violation of intellectual property rights, and could face jail time if eventually found guilty under Indonesia’s unusually severe penalties (by international standards) for such a comparatively minor offence. Meantime Pak Denye and his US partner are countersuing Hardy through their US company Bali Jewel Inc., alleging the company used intimidation and other wrongful tactics to prevent them selling in the US. Charges which both John Hardy’s CEO, Damien Denoncourt and Head Designer, Guy Bedarida, along with their local lawyer, emphatically deny. John Hardy, the man, no longer has any involvement in the matter, having sold out a year or so back.
On the face of it, what we are being led to believe is that a big wicked and faceless foreign company is stealing ownership for themselves of traditional motifs that have been part of the collective canon in Bali for centuries by copyrighting them overseas with the effect that nobody else will be able to sell their own designs based on these traditional motifs outside Indonesia.
If that were true then we should all be outraged and John Hardy should be thoroughly ashamed of themselves and deserve all the grief they get.
But it is not true.....
For the simple fact of the matter is...., no licensing authority in the world, including the US, will allow you to copyright a traditional motif. If they did such a thing, it would be wrong and the law would demand it be reversed. The accusation that John Hardy will have hundreds of copyrights of traditional motifs from Bali and that nobody else will be able to base their own designs on these motifs is simply not true and everybody can go home.
What is true, is that John Hardy has or is seeking to copyright its own design drawings based on these traditional motifs. And that’s a very different thing. It means if I design and seek to sell an earring based on a traditional motif, which is essentially the same as one made by John Hardy and based on their design, but changed in a few minor ways, then John Hardy can reasonably object that their copyright is being infringed and ask me to stop selling it. If I then say - that’s not true, I’ve never even seen your earring and claim the only similarity between mine and yours is the traditional motif, then it becomes a matter of opinion and, I suggest, common sense. If the parties cannot agree, then a legal judgement has to be obtained. It really is no different from drawing the line on the plagiarism of songs or writing.
So in reality, common sense opinion is what should inform this question. In my hypothesis above, there is an honest conflict of opinion which usually gets sorted out between parties in a spirit of good will without making lawyers richer than they already are. If however someone’s business model is based on taking my designs, tweaking them a tad and undercutting me in one of my main markets, then I reckon I’ve got reason to object.
National and local media, including Jakarta Post, Tempo and Bali Times, variously report that from 2000 - 03 Pak Denye worked for John Hardy Jewelry (KTI) in the media department, and the company say that he signed an agreement pledging not to copy company designs. He was not, they say, employed as a designer. The company’s lawyers say that while still working for John Hardy, Pak Denye and Ms. Tobin set up Bali Jewel together and on his quitting KTI began selling their jewellery in the US. Nothing illegal about that, unless they were starting up thier business using designs which didn’t belong to them, something Pak Denye and Ms Tobin deny they ever did.
The question for the court comes down to common sense; looking at the respective designs, is this design by Company A original or have they copied or been unduly influenced by the design of Company X? The fact that the part-owner of Company A used to work for Company X is something a court might take into account, though it doesn’t prove anything in itself.
Of course it is possible for two creative minds to come up with the same or very similar idea simultaneously, but it doesn’t happen often. More often it’s not simultaneous, which makes the question of influence more complex. Then again, there’s nothing wrong in being influenced by someone else’s work. If there were, most of world’s art would go unexhibited and unpublished.
Anyway, a Balinese judge is to be the judge of all that, and that’s exactly as it should be.
The danger in all this is that a local cult of victimhood sets in to the detriment of all. The idea one hears from time to time from some Indonesians that somehow “foreigners are smarter than us, they know how the rest of the world works and are stealing our ideas”, and the corollary that ‘”we should tax, disadvantage or get rid of the foreigner first” is both wrong (for the most part) and self defeating. The trouble is that many of these people often mean they don’t like to think of foreign investors making any money in Indonesia. They’d much rather nobody made any money at all than the foreigner got a fair return on his money. On the other hand, all the smart Balinese businessmen I know are the ones who know exactly how to use foreigners to advantage. Not the ones who ditch their foreign partners and then watch helplessly as their businesses fade into the woodwork because they mistook ‘look’ for ‘substance’.
On the face of it, a registration of traditional motifs, as has been suggested, is an excellent idea. So long as it reinforces the existing idea of the collective creative commons. Attempting to ‘nationalise ’creativity’ is not just absurd, but likely to lead to World Wars of Creativity or the Great Creative Depression, as countries seek to carve out or protect their share of animus mundi. China couldn’t hang onto the secret of silk any more than the Brazilians could stop entrepreneurial Brits hotfooting it off to Malaya with rubber plants stuffed up their trunks. Indonesia, a nation blessed with huge creative assets, seems to be being pretty grown-up about batik (and look how that’s exploding creatively), if narked by upstart Malaysians nicking their songs (and the odd island here and there).
I mean look at the Americans, I’m English and the Americans long ago blagged off with all our stirring stirring chest-bursting toons from “Land of Hope & Glory”, “Jerusalem!” to “God Save The Queen” no less, and I don’t begrudge ‘em, do I? ‘Cept I reckon they should’ve been made to keep the words. I can just hear it now, wafting across Harvard Yard....
And did those feet, in Ancient Time
Walk across England’s mountains green...
or better yet:
Confound their politiks,
Frustrate their knavish tricks,
God Save our Queen!
Nah..... they went an’ changed the words, didn’ey. No respect for creativity you see....
Indonesia and Bali stand to benefit enormously from the free-flow of creative ideas. Anything that gets in the way of that by expanding private ownership at the expense of the creative commons is a bad idea. It can’t work anyway. Stealing other people’s ideas on the other hand, is not just wrong, ....it’s lazy, what’s more it’s bad for business - for everyone. We all have a right to protect our livelihood. Though I have to say, as a writer, I’d be a rich man today if I got $100 every time someone not only steals my immortal prose, but adds insult to injury flogging google ads alongside of it.
