The Promise, Perils and Politics of Protecting Place-Based Products
Total Page：16
File Type：pdf, Size：1020Kb
11 Geographical Indications: The Promise, Perils and Politics of Protecting Place-Based Products Rosemary J. Coombe, Sarah Ives and Daniel Huizenga INTRODUCTION GIs may serve such laudable objectives, positive social outcomes are not guaranteed, Geographical indications (GIs) are increas- nor are benefits from their use necessarily ingly promoted as a means to protect the distributed equally. Historically, they have livelihoods of rural farmers and serve local figured in a politics of privileging elites, rei- and indigenous development needs. States, fying cultural traditions and legitimating international institutions, NGOs and devel- particular power relations. Focusing on opment agencies advocate the use of GI numerous examples, we explore the promise protections to promote a form of develop- and the perils of using GIs to achieve devel- ment that will ensure community security opment objectives and urge consideration of and environmental sustainability while safe- a wider range of social objectives when guarding intangible cultural heritage. We designing the means of their implementation. situate the development of GIs historically Let us start with a simple example: and explore the political and economic con- ditions in which a renewed interest in the use The Karoo region presents images of wholesome- of GIs for rural development and indigenous ness, windmills, sheep farms, endless vistas, hospi- tality and wholesome food … The region is famous community aspirations has recently emerged. for its sheep meat with its distinct taste and tex- GIs are promoted through use of a rhetoric ture. Karoo sheep meat’s distinctive character is that represents a holistic ‘community’ having derived from grazing on indigenous Karoo veldt a singular tradition, deriving from a singular vegetation. The name ‘Karoo’ has been abused culture, rooted in a singular place, with its and misappropriated by many businesses not own naturally distinctive ecosystem which it based in the Karoo. The economic benefits have been taken from the people of the Karoo. Now for stewards as resources for the future. We call the first time a certification mark will guarantee this the ‘social imaginary’ of GI protections that you are buying true Karoo meat. (Karoo Meat and caution against its literalization. While of Origin 2012–2013) BK-SAGE-DAVID_HALBERT-140357-Chp11.indd 207 8/12/2014 9:06:36 PM 208 THE SAGE HANDBOOK OF INTELLECTUAL PROPERTY This is the text that opens the homepage of identity. These rhetorical forms are neither the Certified Karoo Meat of Origin website true, nor necessarily false, we suggest, but written by a Foundation which acts as the the deployment of such strategies may bring ‘custodian of the intellectual property rights benefits in some regions while undermining that vest in the name “Karoo”’. Established sustainable development objectives in others. in 2009, the Foundation aims to ‘trace, We show how such marketing strategies may record, preserve and commemorate the rich have unintended social consequences and heritage which evolved in the Karoo region’, could give rise to unexpected social disputes, while promoting its economic development as well as contests over the proper scale for by investing in the reputational assets of this marking the provenance of goods described arid and economically marginal area of South in cultural terms. While holding social appeal Africa. To this end, the Foundation has for framing development aspirations in some developed a certification scheme in which all regions, this social imaginary obscures those who produce or trade in ‘authentic’ important social complexities in contexts Karoo sheep meat can use the new mark. where tradition and indigeneity are contested Proponents of the mark extoll a regional cul- terms through which different social groups ture based upon the tranquility and honesty attempt to maintain or to assert gains in sta- of the Karoo way of life, such that the ‘Karoo tus, income and opportunity, as the following concept’ has become synonymous with qual- chapter, focused on South African rooibos, ity, tradition and wholesomeness (Kirsten will attest. 2006). The Foundation declares that the ini- tiative will create new opportunities for local people to take a more active interest in their natural and cultural heritage, as well as spur THE MANY MEANINGS OF development initiatives sensitive to ecologi- GEOGRAPHICAL INDICATIONS cal concerns on behalf of ‘the beneficiary community in the Karoo’. This example Few forms of intellectual property (IP) are as condenses many emergent hopes and expec- confusing as geographical indications (GIs). tations for the benefits to be derived from the use of a particular kind of intellectual prop- Partly this is because as a form of legal pro- erty known as a geographical indication (GI). tection, GIs are so recent; only with the pas- We begin by explaining what a geographi- sage of the Trade-Related Aspects of cal indication (GI) is, by situating the term Intellectual Property Agreement (TRIPS historically and explaining the way it dif- Agreement) in 1994 did they become known fers in important ways from other forms of as a distinctive category of intellectual prop- intellectual property (IP). We then discuss erty. Multiple jurisdictions with different the political and economic conditions under legal traditions use a variety of discrete legal which GIs have attracted new interest from vehicles, including indications of source, a diverse group of international actors. We appellations of origin, denominations of suggest that a certain ‘social imaginary’ origin and collective trademarks and certifi- (Castoriadis 1987, 1997; Gaonkar 2002; cation marks, which we will refer to collec- Maza 2005; Taylor 2004; Touraine 1981; tively as marks indicating conditions of Wagner 2012; Zavela 1992) of a harmonious origin (MICOs). MICOs continue to be the community with a naturalized relationship preferred legal means of protecting names to a territory and its resources is fostered by and symbols that mark a specific good as the use of GIs. Those who are encouraged having a quality, reputation or characteristic to develop GIs come to understand this as that is attributable to its geographical origin. a strategy of legitimation, both for claiming The TRIPs Agreement definition adds economic revenues and for asserting cultural that the reputation or characteristic be BK-SAGE-DAVID_HALBERT-140357-Chp11.indd 208 8/12/2014 9:06:36 PM GEOGRAPHICAL INDICATIONS 209 ‘essentially’ attributable to geographic origin. the use of a GI-protected mark in commerce. While this qualification has no clear meaning The broad international obligations set by in the Agreement, the language is significant the TRIPS Agreement do not require that in that it signals a demand for clear evidence countries commit any particular resources of an essentialized natural or cultural linkage to enforcement. Given the lack of common between a product and its place of origin. international commercial law, marks need to In some common law jurisdictions, a be applied for in all relevant countries. Not MICO may be recognized even when it is surprisingly, many countries in the Global not registered if it has come to serve as an South would prefer to see a common inter- indication of source for consumers. Although national registration system established for lack of registration makes it more difficult to all GI-protected goods, not just wines and prevent others from utilizing a mark, because spirits, which are currently given higher it requires that evidence of use and reputation protection. be established in a court of law, it also eases Clearly a large, diverse and unwieldy group costs of entry into markets for producers and of legal protections already come under the collective associations seeking to establish umbrella term ‘GI’. Nonetheless, to make the a reputation for an indication prior to incur- field more confusing, many countries that ring the costs of registration. Unfortunately, did not historically protect such indications marks do need to be registered in their coun- have used the TRIPs term ‘geographical indi- try of origin to receive international protec- cation’ as a generic name for the new forms tion under the TRIPS Agreement (Article of protection they have legislatively cre- 24.9), making this less expensive and infor- ated to comply with their new international mal option suboptimal for countries in the trade obligations. This is particularly true of Global South. countries in the Global South, which have Having a recognized GI enables the holder only recently developed such protections. of the protection (who may be a certifying However, because the TRIPS Agreement authority) to prevent the use of the same mark does not specify what form such protection by others outside of the protected area and should take, and only requires that unspeci- by those within it that do not follow the pre- fied ‘basic provisions’ be put into place for scribed conditions for producing the goods protection (Article 22.1), countries may call that bear it. This does not prohibit producers their protections ‘GIs’, but actually employ from using the same techniques to make the governance frameworks historically used product as long as they do not use the protected for denominations of origin or for collective name to market it. It simply sets standards for trademarks. Alternatively, they may combine producers within a geographical region who elements from different legal forms of pro- want to identify their