Waqf of Trade Secret: An Analysis in Indonesian Legal Perspective

Abstract

Since 2004, the Indonesian Government has tried to expand waqf assets through Law Number 41 of 2004 concerning Waqf (Waqf Law), one of which is Intellectual Property Rights (IPR). However, the Implementing Regulations of Waqf Law do not contain provisions on the IPR regime that can be used as waqf. The problem is the different characteristics of each IPR regime, especially the Trade Secret. The characteristics of the Trade Secret are that confidentiality is maintained for protection. In its implementation, the Waqf Pledge Deed Maker (PPAIW) must state the assets and information of waqf objects. This study aims to identify criteria for trade secrets that can be used as waqf assets. The results show that waqf with trade secret assets must fulfill the following conditions: (1) Trade secret owned by Waqif legally proven by its use in business activities continuously (2) Trade secrets have economic value (3) Trade secrets can be accounted for in Shari'a (4) Waqif previously made efforts in maintaining confidentiality (5) Transition of trade secrets through waqf accompanied by an agreement to maintain secrecy with Nazhir and the inclusion of clauses on the obligation to keep secrets in the Waqf Pledge Act made by PPAIW. The Indonesian government should revise the regulation of waqf implementers that seem obsolete by including the IPR waqf mechanism.