Magazine 2017
International Peer-Reviewed Journal
RESEARCH HORIZONS, VOL. 7 SEPT. 2017
CULINARY CULTURE CREATIONS IN BALI: MAKING THE
RECOGNITION CONCEPT WORK RATHER THAN MERELY
DEBATING THE BENEFIT SHARING CONCEPT
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Ni Ketut Supasti Dharmawan,
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Desak Putu Dewi Kasih,
Putu Aras Samsithawrati,
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I Gede Agus Kurniawan.
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ABSTRACT
Various culinary culture expressions have been developed in Bali global tourism destination. This article
highlights the suitable protection models for those Balinese culinary culture that are purposed to
elaborate the connection of tourism activities with the need of culinary cultural, to analyze several legal
regimes to protect the merge of food culture, and to analyze whether the whole cultural heritage, particularly
culinary cultural need to be protected as a property. Several concepts are discussed in this article
namely: individual reward concept, benefit sharing concept, as well as recognition concept and Balinese
philosophy of Tri Hita Karana. This study used normative legal research. Recent development of culinary
cultural in Bali is not only for the need of daily local people and their ritual religious, but also for global
tourism needs. Efforts to preserve and protect culinary culture go beyond Intellectual Property Regimes,
even debating the possibility to use benefit sharing approach under traditional knowledge and traditional
cultural expression sui-generis model. However, it tends to raise potential conflict in its implementation.
Therefore, making recognition concept work to preserve and protect culinary culture in global tourism
for better prosperity and to keep harmony life for local people become necessary to be concerned.
Keywords : Tourism, Culinary Culture, Intellectual Property Law, Benefit Sharing, Recognition
Introduction
The development of tourism industry, including culinary culture cannot be denied influenced by the advanced
information technology beyond globalization era, such as the sophisticated of TV channels. In its current
development, art and culture aspects as part of tourism resources and capitals are not only in the form of
tangible, but also began to develop more into intangible cultural such as culinary culture which is developed
from the traditional cultural heritage of the local Balinese community. Bali as a tourism destination since the
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970s has been already developed based on cultural tourism, then in 2012 the Government of Bali Province
enacted Government Regulation No. 2 of 2012 concerning Bali Cultural Tourism.
Article 1 (14) of Government Regulation of Bali Province No. 2 of 2012 provides that Bali Cultural Tourism is a
Balinese tourism based on Balinese Culture inspired by the teachings of Hinduism and the Tri Hita Karana
philosophy as the main potential by using tourism as the vehicle of its actualization, resulting in a dynamic
interrelationship between tourism and culture that makes them develop Synergistically, harmoniously and
sustainably to be able to provide prosperity to society, cultural and environmental sustainability. In addition,
Article 1(15) determines that Tri Hita Karana is the living philosophy of Balinese society which contains three
elements that build balance and harmony of relationship between human with God, human with human, and
human being with its environment which become source of prosperity, peace, and happiness for human life. In
simple word, it can be understood that the philosophy of Tri Hita Karana is the life philosophy of the Balinese,
in which human beings balance between God, humans and nature (Peters & Wardana, 12).
In connection with Bali Cultural Tourism, currently more and more culinary culture which is passed down from
generation to generation developed not only for daily food life of Balinese people as well as for the need of
ritual religious, but also it has developed creativelly to support tourism needs. Of course, this phenomena can
be understood, by considering the concept of tourism is very multidimensional, including also enter the realm
of food and beverage culture presented to the tourists. Tourism is a composite of activities, services, and
industries that deliver a travel experience: transportation, accommodations, eating and drinking establishments,
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shops, entertainment, activity facilities, and other hospitality services available for individuals or groups that are
travelling away from home (Goeldner & Ritchie, 6). In order to support Bali as the best global tourism destination,
various culinary cultures are developed both by professional chefs for hotels and restaurants as well as the
local Government.
In recent development of culinary culture, some questions raised regarding the legal protection of it, whether
this type of culinary culture creations need to be protected as a property as well as the type of food industry in
general that is commonly protected through the intellectual property law regimes, or may be more suitable
under sui-generis law related with traditional knowledge and traditional cultural expressions. More critical question
also relevant to be discussed whether the global legal regime can guarantee that by protecting culinary which
is developed from the local culture it will bring prosperity and benefit for local communities.
Research Methods
This research uses combination legal research method, normative legal research and empirical legal research.
In recent development of legal research, there are more room suitable for non-doctrinal methodologies. Ian
Curry-Summer et.al. argue that law mirrors all walks of life. The law does not stand alone, but is closely
connected to society. In concluding academic legal research, it is therefore impossible to remove the societal
field in which the research takes place. Good legal research offers new insights, ideas, arguments or point of
view and solutions for existing problems. All of this is importance to legal development and the functioning of
the law in and for society (Summer et.al.,3-4). In addition, Terry Hutchinson argues that non-doctrinal
methodologies can be used effectively in the legal context in combination with doctrinal studies (Hutchinson,
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8). In connection with legal research method as mentioned above, this research used several approaches,
namely: statute, conceptual, analytical and socio-legal approaches as well as qualitative descriptive analysis.
Globalization and Its Legal Regimes for Culinary Culture Protection
In the development of tourism it seems very important to pay attention to the benefits for the local community.
It is only natural that a growing tourism industry in an area based on culture including culinary culture can also
contribute to the welfare of the existing community in such region. Jan Hendrik Peters & Wisnu Wardana argue
that Bali has the philosophy of Tri Hita Karana (THK), but in the development of cultural tourism model in the era
of 1999, the tourism has become a mass tourism which implementation is far away from THK. The development
of cultural tourism is also need to bring benefit for the local communities that support the cultural tourism
activities and not harm the cultural, spiritual and religious magic of Bali. In addition, cultural tourism development
strategy should be based on THK and Community-based-tourism (Peters & Wardana, Op.cit.,341-388). In the
context of the development of culinary culture protection in Bali, both communities and tourism sectors as well
as government need to seriously pay attention to the notion of THK and CBT models, to keep communities
who preserve the local culture benefit and life with harmony with their surrounding including their highly
creations of food culture. Shortly, tourism brings prosperity for Bali of course including its communities, and
not Bali for tourism
Globalization brings both positive and negative impacts in the development of trade, especially information is
transformed so quickly either through television media or other social media such as websites, instagram,
facebook, and other forms of sophisticated social media. The development of tourism business including
culinary culture also cannot be separated from the rapid development of globalization with the positive and
negative sides. Globalization with its positive side can be seen from the factors such as the incorporated as well
as the integration of various new potentials in the development of tourism, including the potential development
culinary culture tourism. Nowadays, tourists are not only travelling to a tourist destination just to enjoy the
natural beauty of the mountains, beaches, and cultural tourism such as: traditional dances, paintings and other
handicrafts, but they also want to enjoy the culinary culture that is served as it is originally from the local culture
of society. Mintz (1996) argues that culinary culture is related to preferences and taste flavours that are rooted
in the social and economic conditions underlying the food culture in an area. While other experts Askegaard
and Madsen (1998) argue that culinary culture varies widely, both at the micro level (family) and at the macro
level (country, region and social group) consisting of a number of cultural components including taste, linkages
to gender issues and the value attached to the food. Further Lang & Rayner (2001), Lang & Heasman (2004),
Lang & Haesnman (2006) and Lang et.al. (2009) state that food culture is not just about the meaning, practice,
and knowledge of agriculture where it is managed by a certain group of people, but also about how we relate
to the food, where and how it can be bought, how the conception of quality and normality of the food, and how
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our aspirations to the food (Fitzpatrick, 31-32). Tourists who travelling far away from their home countries get
information concerning the delicious of that dishes through the global media such as TV Channels as well as
others social media.
The unique and delicious flavours, made from herb products is one of the attractions of culinary dishes, which
at the same time differentiate it with various food culture from western countries. In the development, more and
more people enjoy the beauty and uniqueness of the culinary culture that comes from the Asian region, including
Bali. This culinary is preserved by the local community as a source of food culture that was originally passed
down from generation to generation in its own community which now has begin to develop into mega culinary
business. This phenomenon, of course on one hands is promising, But, on the other hand, critical thinking is
needed whether by protecting this type of dishes through intellectual property regimes, the local community
will benefit. Economic globalization affects people everywhere including their daily lives, such as affects their
job, their food, their health, their education, until their leisure time. However, many scholars who opponent to
the current globalization process where TRIPs-WTO regimes is considered as the mirror of economic globalization
argue that social cultural, and environmental interests and the interests of developing countries are not sufficiently
taken into account. Therefore, the process of globalization does not bring benefit for developing countries. On
the other word, developing countries do not flourish in today’s world. Peter Van Den Bossche questioned
whether economic globalization: a blessing or a curse? (Bossche, 4-9).
From the perspective of intellectual property law, culinary, particularly in the form of food industry which is
individual rights seems relevant to be protected through the patent law regime, especially for industry food
product. In this context, patent protection for the technological innovation in the field of the process of making
food or cooking technique. For example, food in the US can be protected under the type of Utility Patent. Of
course, if such invention meets to the novelty requirement. Cooking technique must be extremely unique food
techniques; a high threshold of originality and creativity is met. If the statutory requirements of novelty and non-
obviousness are satisfied then a process is in fact patentable. According to 35 U.S.C. § 101, “Whoever invents
or discovers any new and useful process, machine, manufacture, or composition of matter or any new and
useful improvement thereof, may obtain a patent thereof, subject to the conditions and requirements of this
title.” One of the examples is the Case of Jack Guttman Inc. v. Kopykake Enterprises Inc. Such case relates to
a breach of a food process patent that using technology, which is a baker produces “a birthday cake decorated
with an edible version of the birthday child’s photograph” (Arons, 138-145).
Another intellectual property law regimes are also suitable to protect food sector in global market are: Patent
for food products especially food making processes, food technology innovations related to new ingredients
in producing food products; Trade Mark. to protect food products particularly in relation to branding strategy
as well as ensuring the product is distinctive and valued; Copyright to protect literary works such as recipes
and the history of food products in written books; and Trade Secret to protect typical and unique food recipes
(
Intellectual Property Law in the Food Sector, http://www.eversheds-sutherland.com/global/).
The entire regimes of intellectual property laws above are sufficient to protect individual intellectual property
rights as stipulated under TRIPs Agreement. This international agreement is considered as the most comprehensive
agreement governing intellectual property rights. The intellectual property law regime essentially protects the
works of human creativity related to moral interests, social interests and economic interests. Reward Theory
that emphasizes the creativity and innovation of human intellectual work will be rewarded in the form of incentive.
The essence of Reward Theory is: Innovation, Reward, and Incentive. (Mac Queen, et.al, 10-11). Food industry
can be considered as part of individual property rights. Therefore, the protection is covered by TRIPs regimes.
Meanwhile, culinary culture that develops from one generation to the next, maintained by the community,
seemly it is more appropriate considered as communal heritage rather than individual belonging. As a
consequence, intellectual property laws under TRIPs Agreement seemly become not in line for the protection
of culinary culture even may brings difficulty if we still force it for creative dishes that rooted from local culture.
Should we still think that culinary culture is an intangible cultural property? If yes, we may be relevant to
elaborate the provisions of sui-generis Traditional Knowledge and Traditional Cultural Expressions.
The World Intellectual Property Organization (WIPO) defines Traditional Knowledge (TK) as a living body of
knowledge that is developed, sustained and passed on from generation to generation within a community,
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often forming part of its cultural or spiritual identity. Therefore, the elements of TK are as follow: knowledge,
know-how, skills, innovations or practices; that are passed between generations; in a traditional context; and
that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or
custodian. Meanwhile on the other side, WIPO defines Traditional Cultural Expressions (TCEs) as the forms
where traditional culture is expressed whether in tangible, intangible or mostly combination of those two. In
any material object, there is often a symbolic or religious element from which it cannot be separated. Songs,
dances, designs, handicrafts, tales or many other artistic or cultural expressions are some examples of TCEs
(
WIPO Booklet,15,17).
In order to discuss protection of TK and TCEs, it is important to make clear who are the holders of TK and
TCEs? What does ‘protection” mean?, TK and TCEs are understood as belonging collectively. As a consequence,
any right and benefit should invest in communities who preserve them rather than in individuals. Concerning
protection of TK and TCEs, WIPO comes to a very specific understanding by using Intellectual Property (IP)
regimes and their principles to prevent unauthorized uses TK and TCEs by third parties. There are two approaches
from IP system to protect TK and TCEs namely “positive’ protection and “defensive” protection. First approach
is positive protection refer to prevent unauthorized exploiting TK and TCEs commercially including culturally
offensive. Controlling the used of TK and TCEs by third parties as well as benefiting from commercial exploitation
of TK and TCEs by third parties are example of positive protection. Second approach is defensive protection
refer to stop people outside the community getting IP rights over TK and TCEs. India as an example has been
used this approach as defensive strategies by compiling traditional medical knowledge database (Ibid., 23-
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6). Both approaches are needed in order to protect TK and TCEs, particularly in WIPO perspective, “benefit
sharing” concept has used as a legal basis of positive protection approach. The benefit sharing concept also
exists in the Convention on Biological Diversity (CBD) as well as in the International Treaty on Plant Genetic
Resources (ITPGR).
Several cases related with bio-piracy of traditional knowledge have been occurred in developing countries,
India as an example with its bio-piracy case such as the Neem tree case, Curcuma longa, until Mosanto in its
breeding programs (Bhattacharya, 54). Protecting TK, TCEs, including Plant Genetic Resources (PGR) TK and
TCEs regimes with their benefit sharing concept and documenting system as part of defensive protection in
theory look simple and may appropriate for some communities. But for others may be do not work properly.
There are problem in implementation.
The problem in implementation also emerges related to protect culinary culture in Bali. With regard to the
development of culinary culture in Bali, several efforts have been done not only at the provincial level such as
the Bali Arts Festival (Pesta Kesenian Bali) which is held once a year cantered at Art Center Denpasar-Bali, but
also at the district level such as Tabanan District started its concern for “culinary cultural tourism” through a
newly organized event entitled “Tanah Lot Creative Food and Art Festival 2017.” The aim of developing culinary
culture creative is to develop local cultural heritage for the prosperity and to improve the livelihoods of the
community. Another aim of the Tanah Lot Creative Food Festival 2017, which its icon is “Kuwir” (Duck) as its
unique culinary, is intended to make creative culinary efforts of the Micro, Small, Medium enterprises (MSMEs)
in Tabanan to be enjoyed by local, national and global communities of tourism. (Direct observation Press
Release from the Regent of Tabanan-Bali, Mrs Eka), In order to promote the cultural tourism culinary, one of
famous Chef in Indonesia-Chef Juna, helped to demonstrate the cooking of Tabanan’s superior culinary called
as “Tum Kuwir”. In the event of Tanah Lot Creative Food and Art Festival, people who develop business in the
form of MSMEs are facilitated in addition to coaching through the creative economy of MSMEs. Furthermore
they are also provided places as their showcase which they can use as marketing tool of their unique culinary
based on traditional culture. The festival itself lasted for three days from the date of 7 to July 9, 2017 located
in Tanah Lot tourism destination, Tabanan-Bali. In the press release when a journalist asked concerning protection
of creative food, the Regent of Tabanan answered that they will protect their food culture.
Discussing about food sources in Bali are not always easy. Each regency tend to claim that several unique
food culture is developed from their community which is passed down from generation to generation. Tabanan
Regency for an example, they promote culinary culture such as: “Tum Kuwir”, “Lawar Kelungah” and “Entil”.
Those creative culinary, in fact also exist at other regencies in Bali such “Entil” exist in Buleleng Regency as
well as “Lawar Kelungah” exist at Jembrana Regency. Another example, “Belayag Buleleng” developed and
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rooted from Buleleng Regency. This type of culinary culture, in fact also exist at Karangasem Regency. As a
consequence, if we use the benefit sharing concept under TK and TCEs regimes to protect these creations
culinary culture, who should receive the benefit sharing?, which communities should sign the benefit sharing
agreement?. In our point of view, the problem is not only difficult to determine where the benefit sharing should
go, but also it is potential to rise conflict among societies. Of course, this situation might bring societies go far
away from their philosophy Tri Hita Karana. As we know, the Tri Hita Karana, the philosophy of Balinese, in
which human beings balance between God, humans, and nature. So, should we determine cultural as a property?,
should we merely rely on benefit sharing concept?
Recognition Concept: is it a solution protecting culinary culture?
By understanding deeply the Balinese philosophy of Tri Hita Karana, in correlation with the development of
culinary culture, to preserve life in harmony and not always thinking about cultural as a property, it seems by
allowing, by making “recognition concept” work for culinary culture in Bali, in our point of view it might brings
prosperity for societies naturally. For instance, by recognizing several Balinese food culture such as “Balinese
Sate Lilit” or “Sate Lilit Bali”, “Balinese Be Tutu” or “Be Tutu Bali”, “Balinese Be Genyol” or “Be Genyol Bali”,
“Balinese Lawar” or “Lawar Bali”, “Balinese Belayag” or “Belayag” and others Balinese culinary culture creations.
People who need to consume originate Balinese culinary culture they will come to Bali.
As discussed previously, protecting culinary culture through TK and TCEs model are important. However, some
difficulty may occurred such as benefit sharing (positive protection approach) is potential to rise a conflict, and
documenting system (defensive protection approach) is potential to remove their own society to use public
domain, it is caused by our neighbour societies have already documented and claimed public domain strictly.
Another problem may occurred relating documentation model tends to be used to exploitative the intangible
heritage cultures rather than to protect them (Brown, 49). Therefore, “recognition concept” may be the solution
that needs to be concerned.
Conclusion
Culinary culture expressions can be protected under Intellectual Property Rights regimes especially those in
the form of individual food industry as well as through TK and TCEs protection either positive protection
approach or defensive protection approach. In several situation, they may do not work properly. Efforts to
preserve and protect culinary culture go beyond Intellectual Property Regimes, even debating the possibility
to use benefit sharing approach under traditional knowledge and traditional cultural expression so called sui-
generis model. However, it tends to raise potential conflict in its implementation. Therefore, making recognition
concept work to preserve and protect Balinese culinary culture in global tourism for better prosperity and to
keep harmony life as it is driven by the Balinese philosophy of Tri Hita Karana for local people become necessary
to be concerned.
References :
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Cambridge University Press. New York
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John Wiley & Sons Inc. Hoboken. New Jersey. USA
Hutchinson, Terry. 2002. Researching and Writing in Law. Lawbook co. A Thomson Company. Riverwood,
NSW, Australia
Peters, Jan hendrik & Wisnu Wardana. 2013. Tri Hita Karana the Spirit of Bali. Kepustakaan Populer Gramedia.
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Summer, Ian Curry et.al. 2010. Research Skill Instruction for Lawyers. School of Law. Utrecht University.
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Journal
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Internet
Intellectual Property Law in the Food Sector, 2013, http://www.eversheds-sutherland.com/global/en/what/
publications/shownews.page?News=en/ireland/ip-law-in-the-food-sector-june-2013, accessed 30 May 2017
Laws and Regulations
Convention on Biological Diversity (CBD)
International Treaty on Plant Genetic Resources (ITPGR)
TRIPs Agreement
Government Regulation of Bali Province No. 2 of 2012 on Bali Cultural Tourism
*Lecturer of Private Law Department at Faculty of Law University of Udayana, Bali-Indonesia.
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* Lecturer of International Law Department at Faculty of Law University of Udayana, Bali-Indonesia.
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** Doctorate degree student of Faculty of Law University of Udayana, Bali-Indonesia.
Email: [email protected]
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