Indigenous Data Sovereignty and Blockchain: Reconfiguring Legal Protection of Communal intellectual Property in Indonesia

Abstract

This article reevaluates Indonesia’s legal framework for the protection of Communal Intellectual Property (CIP), exposing the fundamental weaknesses of Ministerial Regulation No. 13 of 2017 and Government Regulation No. 56 of 2022, which rely on administrative state custodianship without ensuring community sovereignty, Free, Prior, and Informed Consent (FPIC), or enforceable Access and Benefit-Sharing (ABS) mechanisms. Using a normative legal methodology enriched by socio-legal and comparative analysis (Philippines: IPRA 1997; Thailand: TK Act 1999; Peru: Law No. 27811; Bolivia: constitutional recognition of communal rights), the study reconstructs the regulatory model through the theoretical lenses of Living Law (Ehrlich), Responsive Law (Nonet and Selznick), and Pancasila Legal Theory. The findings reveal three central gaps. First, the positivization of CIP that concentrates authority in the state creates a sovereignty imbalance and undermines indigenous legal autonomy. Second, the absence of operational FPIC and ABS mechanisms reduces communities to data providers rather than legal subjects. Third, comparative experiences from ASEAN and Latin American jurisdictions provide strong precedents for the recognition of communal rights, community protocols, and equitable benefit-sharing frameworks. The article proposes a blockchain-based co-governance model using a permissioned ledger and smart contracts to ensure transparent and collectively validated registration, consent, and benefit distribution. The study’s practical contribution includes drafting key provisions for a sui generis CIP Law, establishing a joint State, Community CIP Council, mandating FPIC and ABS, and integrating a blockchain-enabled national registry that embodies Pancasila’s foundational values of deliberation, solidarity, and social justice.