Recognising Geographical Culture As Intellectual Property

A written account of author Samuel Langhorne Clemens famously known as Mark Twain comments at length upon the duality presiding in India, calling it “… the country of a hundred nations and a hundred tongues, of a thousand religions and two million Gods, cradle of the human race, birthplace of human speech, mother of history, grandmother of legend, great-grandmother of traditions … the one land that all men desire to see, and having seen once, by even a glimpse, would not give that glimpse for the shows of all the rest of the world combined”.

Truly so, India is a nation full of diversity, feeding on a variety of cultures and traditions spread equally among a vast geographical expanse, some of which are aged hundred years and more. For example, amid tiny lanes in a town of Gods, one will find Banarasi silk being woven in several homes, while in the arid land of Kutch colourful woolen shawls adorn the courtyard of a weaver’s household. Not just handloom and handicraft, India is also home to a variety of agricultural products like Darjeeling tea and aromatic coffee beans of South India. Such richness of heritage places the nation in high regards.

With passage of time, the regions where the products originate have established a strong affinity and sense of affection. In fact, some regions are better known through the years mainly due to the unique products originating from there, for e.g. Kanchipuram village in Tamil Nadu, where weaving of Kanchipuram silk sarees takes place or Kolhapur city in Maharashtra where Kolhapuri chappals are made. Moreover, the products often develop a certain quality when originating from a particular source, such quality cannot be found elsewhere. This goes true majorly for agricultural products that are region specific but also for handicraft or handloom products that emanate from a place, wherein such uniqueness is traced that cannot be copied by artists elsewhere.

Why the emphasis on source of origination, one might wonder. For much of its history, the notion of a distinctive link between regional products and their places of origin has been articulated in the language of terroir.[1] This polysemous term acts as a cipher for the influence of geographical origin on the end product’s quality.[2] Thus, the importance of origination of source is highly apparent and intellectual property law gives express recognition to products originating and known by a specific geographical source under the umbrella of geographical indications (GI). This legal regime facilitates knowledge of provenance (origin) of a certain product in a marketplace.

 

Geographical indications — A global and domestic perspective

At the global level, recognition to geographical indications system is provided under the Agreement on Trade-Related Aspects of Intellectual Property Rights (Trips) while at the domestic level, nations have carved specific laws, such as India’s legislative effort titled The Geographical Indications of Goods (Registration and Protection) Act, 1999.

Trips Article 22.1 provides definition to GIs as “geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.”[3]

Section 2(e) of the Geographical Indications of Goods (Registration and Protection Act, 1999) defines the term as “geographical indication” in relation to goods, means an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating, or manufactured in the territory of a country, or a region or a locality in that territory, where a given quality, reputation or characteristics of such goods is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes places in such territory, region or locality, as the case may be.[4]

GIs is a unique recognition of genesis provided to agricultural products, foodstuffs, wine and spirit drinks, handicrafts and industrial products. According to the World Intellectual Property Organization (WIPO), the “basic concept underlying GIs is simple, and familiar to any shopper who chooses Roquefort over ‘blue’ cheese or Darjeeling over ‘black’ tea … [these are] well-known examples of names associated throughout the world with products of a certain nature and quality, known for their geographical origin and for having characteristics linked to that origin”.[5]

The exclusivity of geographical indications lies in that the right is not merely individual but is given to a group of producers of a product, thus making it a community right. Such group of producers may be organised as an entity in form of a cooperative or an association, which represents the group. A GI right enables the right-holder to use the indication to prevent its use by a third party whose product does not conform to the applicable standards. For example, producers of Darjeeling tea can exclude use of the term “Darjeeling” for tea not grown in their tea gardens or not produced according to the set standards of production. However, such exclusion is permissible only in the jurisdictions in which Darjeeling is protected as a GI.[6] Moreover, a protected geographical indication does not enable the holder to prevent someone from making a product using the same techniques as those set out in the standards for that indication. Protection for a GI is usually obtained by acquiring a right over the sign that constitutes the indication.[7]

The very act of establishing a separate system to accommodate regional products indicates that GI regimes are expected to do different kinds of legal work and three interrelated features account for this: (1) as Trips acknowledges, a GI identifies a product for which a causally demonstrable link to a specific region exists; (2) this in turn suggests a collective—as opposed to individual—interest in the use of the sign by all legitimate producers within the region, since the product’s reputation and associated knowhow is generated by collective effort; and (3) this collective interest provides the basis for greater State involvement, since both legal entitlements and legal obligations need to be defined, allocated, and coordinated.[8]

 

Enriching development through Geographical Indications

Studies have identified the strength of GIs. At a time when there is an increasing gap between developing and developed nations, urban and rural areas, GIs can play a significant role in uplifting rural economies. In most cases, GI gives recognition to products from rural regions that remain less known or in some cases even unknown due to lack of knowledge among public. But with a GI tag, entitlement to use is provided merely to regional producers thus value generated by the intellectual property right accrues to the regional producers. A pertinent example lies in the case of Darjeeling tea whereby due to its protection as GI, the producers’ association has successfully enforced the right against tea produced in countries like Sri Lanka, Nepal and Kenya attempting to pass off as Darjeeling tea. Such protection and recognition create a market niche for the products and generate a premium brand price which acts as a booster to the value of such products, thus contributing to the creation of local employment which may prevent the growing rural migration.

Additionally, as mentioned above, regions have often been identified by products, like the saree type patola adding fame to the town of its creation — Patan and the sweet rasagulla affiliated strongly with the State of West Bengal. In many cases this has led to a tremendous increase in local tourism like in the case of Kutch handloom which accrued benefits of the local tourism schemes promoted by the State Government; market spaces were created for the local artisans in order to attract the tourists attending the annual Rann festival. Thus, geographical indications may bring value to a region not only in terms of jobs and higher income, but also by promoting the region as a whole and in this regard, GIs may contribute to the creation of a “regional brand”.[9] However, several conditions must be present in order for the product to attain success as a GI; such as the formation/design of the regional GI scheme. Products identified by a GI are often the result of traditional processes and knowledge carried forward by a community in a particular region from generation to generation.[10] Similarly, some products identified by a GI may embody characteristic elements of the traditional artistic heritage developed in a given region, known as “traditional cultural expressions”. This is particularly true for tangible products such as handicrafts, made using natural resources and having qualities derived from their geographical origin.[11]

 

Conclusion

Although they are one of the oldest forms of intellectual property, geographical indications have been majorly recognised only in the recent years. However, the realisation of its unlocked potential is now in surge. The fact that GIs are attached with a territory means they can be effective tools for promoting rural development.

India is one of the few nations which provide for a separate law on geographical indications, thus respecting, identifying and acknowledging skills and knowledge lying in each of its State and different regions therein. A total of 326 products[12]—agricultural, handicrafts and handlooms,
foodstuffs and others have been recognised as GIs and many more are lined up.

The recent flare in news surrounding geographical indications in India should be taken as a positive signage of building up of the rural Indian economy, bit by bit. By addressing and welcoming cultures and traditions in various forms like geographical indications or traditional knowledge, intellectual property law is benefitting the society in two ways: (i) introducing valuable and unique domestic goods that are ages-old in many cases, to the public, thus contributing to an increase in public knowledge, linking closely the stakeholders; and (ii) strengthening confidence of rural producers in the law. Further, GIs have an unleashed potential to skew the so-called distance between the developing and developed nations — if Patents are their weapons of choice, GIs can be ours! Thus, with Geographical Indications nations like India can truly flaunt the wealth of heritage and recognise them through Intellectual Property Rights.

 

Hetvi Trivedi is Research Associate, GNLU-GUJCOST Research Centre of Excellence in IP Laws, Policies & Practices.

[1] Daniel W. Gade, “Tradition, Territory, and Terroir in French Viniculture: Cassis, France, and Appellation Contrôlée”, 94(4) Annals of the Association of American Geographers 848 (2004).

[2] Ibid.

[3] Agreement on Trade-Related Aspects of Intellectual Property Rights, available at <https://www.wto.org/english/docs_e/legal_e/27-trips.pdf>.

[4] The Geographical Indications of Goods (Registration and Protection) Act, 1999, available at <http://www.ipindia.nic.in/writereaddata/Portal/IPOAct/1_49_1_gi-act-1999.pdf>.

[5] Dev S. Gangjee, Proving Provenance? Geographical Indications Certification and its Ambiguities, World Development, Vol. 98, pp. 12-24, 2017, available at <http://yucita.org/uploads/yayinlar/diger/makale/new/8-1-s2.0-S0305750X15000935-main.pdf>.

[6] Geographical Indications <http://www.wipo.int/geo_indications/en/faq_geographicalindications.html>.

[7] Ibid.

[8] Dev S. Gangjee (n 5).

[9] Geographical Indications — An Introduction, at p. 17, available at <http://www.wipo.int/edocs/pubdocs/en/geographical/952/wipo_pub_952.pdf>.

[10] Id., at p. 18.

[11] Id., at p. 18.

[12] Geographical Indications Registry, available at <http://www.ipindia.nic.in/writereaddata/Portal/Images/pdf/GI_Application_Register_new.pdf>.

One comment

  • Avatar

    Protection of origination of source is very important. Indeed, India has been successful in protection the GJ ” Darjeeling” tea. It is not the individual rights that define GI but rather community rights. I hope that many other countries, especially developed countries, would recognize more GI protection and more products. It is all about community rights. Bashar Malkawi

Join the discussion

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.