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Part IV - The shifting Relationship between Geographical Indications, Traditional Knowledge, and Cultural Heritage

Published online by Cambridge University Press:  22 June 2017

Irene Calboli
Singapore Management University
Wee Loon Ng-Loy
National University of Singapore
Publisher: Cambridge University Press
Print publication year: 2017
Creative Commons
Creative Common License - CCCreative Common License - BYCreative Common License - NCCreative Common License - ND
This content is Open Access and distributed under the terms of the Creative Commons Attribution licence CC-BY-NC-ND 4.0

18 The Geographical Indication Act 2013: Protection of Traditional Knowledge in Bangladesh with Special Reference to Jamdani

Mahua Zahur Footnote *
1 Introduction

Geographical indications (GIs) refer to signs or symbols that are used to denote a product, the distinctive characteristics of which are linked to its place of origin. GIs are different from other intellectual property rights because of their unique characteristics, namely, the fact that they can be collectively owned by a group of producers. Additionally, GIs have a connection to the territory from which the products originate, both in terms of geographical origin as well as quality and characteristics of the products.Footnote 1 The inclusion of GIs in the provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)Footnote 2 was controversial precisely due to the differences between “old world” and “new world” countries, with respect to some of the theories supporting GI protection.

After a long debate, GI protection was nevertheless introduced into TRIPS, and subsequently had to be protected in most countries worldwide.Footnote 3 Nevertheless, although TRIPS requires for the protection of GIs, it does not provide for the specific mechanism that members of TRIPS should adopt to protect GIs under their national laws.Footnote 4 Consequently, individual countries have chosen their own modality for the protection of GIs within their domestic system. Some countries have preferred to protect GIs under their existing trademarks law, whereas others have enacted a sui generis mechanism for GI protection, largely based upon the system currently adopted by the European Union (EU). In response to TRIPS’ obligations, many Asian nations have also enacted ad hoc legislations for the protection of GIs, keeping in mind the socioeconomic conditions of their countries.Footnote 5

In this respect, Bangladesh has recently enacted the Geographical Indication (Registration and Protection) Act 2013 (GI Act of 2013) (Act No. 54 of 2013).Footnote 6 Law makers and relevant business sectors hoped that through the enactment of the GI Act of 2013, Bangladesh would be able to protect traditional domestic goods that utilize the intellectual ingenuity and traditional knowledge of local producers, which previously fell outside the conventional type of intellectual property protection in Bangladesh.

This chapter aims to analyze GI protection from a Bangladeshi perspective. Furthermore, Section 2 will briefly revisit the provisions which relate to GI protection under TRIPS and how the notion of GIs is articulated within TRIPS’ construction. Section 3 will project light upon the background of the newly enacted GI Act of 2013 and the practicalities of GI protection in Bangladesh. Briefly, the GI Act of 2013 is designed to conform to TRIPS while simultaneously seeking to accommodate the domestic needs of the country with respect to GI protection. Building on Section 3, Section 4 will review the salient features of the GI Act of 2013. This section will also mention some of the provisions of the Trademarks Act of Bangladesh of 2009 (TM Act of 2009) (Act No. 19 of 2009)Footnote 7 that provide indirect protection to GIs. The TM Act of 2009 was the only law applicable to GIs in Bangladesh before the passing of the GI Act of 2013.

Bangladesh is the home of many traditional place-based products. The GI Act of 2013 thus represents the normative framework for a potentially beneficial new model for the protection of domestic place-based local products. Among many other traditional products, one geographical name that has garnered particular attention in Bangladesh is Jamdani. The name Jamdani refers to an intricate woven fabric that has historically been associated with a particular region of Bangladesh. The process by which the fabric is created has also been recognized as an intangible cultural heritage of humanity by the United Nations Educational, Scientific, and Cultural Organization (UNESCO).Footnote 8 In November 2016, Jamdani became the first GI to be registered in Bangladesh under the GI Act of 2013. Section 5 of this chapter will explore the history of this woven tradition and will argue that Jamdani deserved be protected as a GI in Bangladesh. It is recognized, however, that the long-term protection of Jamdani and other traditional goods of Bangladesh does not only depend on the registration of their names as GIs under the GI Act of 2013. Instead, building an effective framework for GI protection in practice also requires that GIs are managed wisely by their producers and the communities. Only in this way can Bangladesh reap the benefits of the adoption of GI protection.

2 TRIPS and Geographical Indications: A Brief Revisit

In 1994, the protection of GIs became globally accepted due to its inclusion into the widely ratified TRIPS agreement.Footnote 9 Nevertheless, this development did not come easily. During TRIPS’ negotiations, the United States (US), Canada, Japan, and Australia opposed the inclusion of GI protection within TRIPS. However, the EU came forward to support GI protection as it had a strong interest to protect traditional foods and wine in the international market.Footnote 10 Notably, various similar concepts, aimed at protecting “indications of origin” and “appellations of origin,” had previously been incorporated in other international agreements, but with less success than TRIPS.Footnote 11

One of the most relevant aspects of TRIPS is that it provides a detailed definition of GIs. This is a step forward from the vague and ambiguity-ridden definitions one may find in the predecessors of the TRIPS agreement.Footnote 12 TRIPS defines GIs in Article 22(1) in the following terms:

Geographical indications are, for the purpose 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.

Article 22(2) of TRIPSFootnote 13 provides a general threshold against the use of GIs that would result in consumers being misled or which may amount to unfair competition. This general rule, however, finds an exception in the case of GIs for wines and spirits, for which a higher standard is required. Notably, TRIPS protects these GIs also when unauthorized uses of these GIs or similar terms do not mislead the public. Moreover, Article 23 of TRIPSFootnote 14 prohibits the use of these GIs in association with expressions like “kind,” “type,” “style,” or other similar expressions.

This differentiated treatment was an issue of debate within the World Trade Organization (WTO) as many WTO members requested the same “higher” level of protection to products beyond wines and spirits. However, a group of countries led by the US opposed such an extension.Footnote 15 These countries opined that the GIs other than wines and spirits were already sufficiently protectedFootnote 16 under Articles 22 and 24 of TRIPS.Footnote 17 The reason for their objection against equal treatment of all GI products was, inter alia, that developing countries would not be able to bear the cost of implementing a higher level of GI protection for all products.Footnote 18

Nevertheless, Article 24 of TRIPSFootnote 19 provides for a built-in agenda for future GI negotiations precisely to discuss the possibility of extending a higher level of GI protection beyond wines and spirits. As of this date, there has been no international consensus as to the expansion of higher level of protection to all other products that are currently given to wines and spirits;Footnote 20 the creation of a multilateral registry for GIs also seems unlikely to take place in the near future.Footnote 21 However, most international negotiations on GIs are currently taking place outside the TRIPS/WTO framework, and a new generation of TRIPS-plus GI standards has been negotiated through regional and bilateral international free trade agreements (FTAs).Footnote 22

Despite these stated controversies, TRIPS is still praiseworthy for defining GIs beyond all ambiguities, its wide acceptance throughout the world,Footnote 23 providing provisions relating to interplay between trademarks and GIs,Footnote 24 and paving the way for future negotiations toward increasing protection of GIs bilaterally or multilaterally.Footnote 25 Still, while TRIPS mandates for specific minimum standards for GI protection, it does not provide for a single particular mechanism of protection. Accordingly, TRIPS members are at liberty to protect GIs within their national boundaries by adopting sui generis law or through trademarks law or under unfair competition law. In this respect, Bangladesh, a member of the WTO since 1995, has decided to adopt a sui generis system of protection for GIs. The outcome of this decision is the enactment of the Geographical Indication (Registration and Protection) Act 2013.Footnote 26

3 The Rationale for Protecting Geographical Indications in Bangladesh

Theoretically, the fundamental rationale for protecting GIs within an intellectual property regime is akin to that of trademark, that is, to protect signs that link products to certain places of origin or products that have certain characteristics. Protecting GIs will thus prevent consumers from being misled by third parties not authorized to use the GIs. In turn, this protection will grant legitimate producers the right to prevent the misappropriation of their valuable property.Footnote 27 GIs can also potentially play a relevant role in promoting development for local (generally small) communities as well as preserving local culture. These pro-development and pro-culture arguments have attracted the attention of GI scholars,Footnote 28 and have been brought to the forefront of the international debates – even though many remain doubtful.Footnote 29 Even though these arguments in support of GI protection may be beyond the practical reasons proffered for the protection of GIs at the domestic level, it is important to consider these arguments to better understand the reasons why GI protection can benefit national economies.

Yet, the arguments related to the value of GIs for community development and the preservation of cultural heritage did not appear to be as important during the discussion on GI protection as part of the adoption of TRIPS. Instead, GIs have been viewed, for a long time, as a European phenomenon within the TRIPS negotiations. The EU possesses most of the GI registrations, even outside wines and spirits,Footnote 30 and had argued strongly for the inclusion of GI protection within TRIPS.Footnote 31 In particular, the EU took the stance that GI-denominated products should be protected for their unique characteristics, while the US, Australia, and other countries opposed GI protection saying that, inter alia, most products can be replicated anywhere in the globe today by virtue of technological advances. In essence, this apparently theoretical debate was prompted from the respective trade interests of the “old world” and the “new world.” GI protection was finally included into TRIPS as a trade compromise between these nations.Footnote 32 These nations also agreed on a higher level of GI protection for wines and spirits because they shared considerable economic interests in this area as producers and exporters of wines and spirits.

In the Asian context, this trade-based reality is not as clear as in the West. Nevertheless, the recent years have witnessed the proliferation of sui generis legislative endeavor toward GI protection in Asia.Footnote 33 Asian countries mostly relied on culture-based justifications to support the protection of GIs at the domestic level.Footnote 34 For example, India currently possesses more than two hundred registered GIs for different ranges of products, including foodstuff, fabric, jewelry, and furniture,Footnote 35 the trade importance of which is yet to be established.

It goes without saying that if the rationale for GIs was solely to preserve culture, such justification would simply be impractical. In this regard, the approach of Singapore is worth a mention. Initially, Singapore enacted GI laws which provided for automatic protection of GIs without any need for registration.Footnote 36 The law was designed in accordance with TRIPS.Footnote 37 However, in April 2014 the parliament of Singapore passed the new Geographical Indications Act which, when it comes into force, will replace the earlier Act.Footnote 38 This new enactment provides for the registration of GIs, in pursuance of EU-Singapore Free Trade Agreement.Footnote 39 This new enactment provides that a registry for GIs be set up.Footnote 40 Consequently, there would be an increase of costs required to set up and maintain this registry. If Singapore does not rely on strong domestic culture-based justification like most other Asian countries, then why is Singapore willing to shoulder this additional economic burden? Perhaps future trade implications under its trade agreements with the EU have persuaded Singapore to enact this new piece of law. In general, the practical rationale of protecting GIs at a domestic level may differ from place to place.

What prompted Bangladesh to enact the GI Act of 2013? Bangladesh can be viewed as the home of various agricultural and traditional products. Its GI legislation can thus be rationalized by cultural justification, which is the justification that most Asian developing nations cite as justification for GI protection. As per one research, 73 products have been identified, including foodstuffs, handicrafts, and weaving patterns from Bangladesh as having the traits linked to their place of origin.Footnote 41 Alongside this reason is the pragmatic rationale that Bangladesh, as a member of TRIPS, is under an obligation to implement the bulk of TRIPS’ minimum standard. This international obligation has caused Bangladesh to replace their old trademark and copyright laws with new enactments in accordance with TRIPS. As a “least developed country,” Bangladesh was originally granted a concession of ten years, which was extended twice, up to 2021.Footnote 42 However, it fulfilled its obligation in 2013 with the enactment of the GI Act of 2013.Footnote 43

On a related issue, it is a matter of concern whether Bangladesh can shoulder the economic expense of setting up the registry provided under the newly enacted GI Act of 2013. Unless GIs are proven to be economically viable at a domestic level (which must be assessed in the reality of every individual country), the adoption of GI protection may prove to be futile. In Bangladesh, the extent to which GIs may contribute toward the development of small communities and protection of cultural heritage can only be assessed once the newly enacted GI Act of 2013 law will come to its successful implementation. It may therefore be too early to reach an opinion on this particular matter.

It is worth mentioning the background that led to the enactment of the GI Act of 2013. In 2012, some location-based products of Bangladesh, such as Jamdani,Footnote 44 Fazli mango,Footnote 45 and NakshiKanthaFootnote 46 (a weaving pattern) were registered as GIs in India under Indian GI law. As these products are generally regarded as flag bearers of the Bangladeshi national identity, the fact that these names had been registered as Indian GIs on the Indian GI Registry led to the fear of misappropriation of Bangladeshi cultural distinctiveness by other countries. Particularly, this event raised resentment among the stakeholders of the location-based products in Bangladesh. The Jamdani weavers along with other concerned parties claimed that this represented a cultural misappropriation. This incident may thus have contributed to the enactment of the GI Act of 2013 in Bangladesh.Footnote 47 In other words, policy makers may have found that this enactment was the only available option to “console” the resentment among local producers as opposition to the registration of GIs in other countries has to be based on the fact that these GIs are protected in their country of origin under the principles of TRIPS.

Generally, GI proponents have always supported that GI protection constitutes a system of protection that can promote the development of small communities in developing countries. If Bangladesh confines the use of the GIs only for the prevention of misappropriation of their cultural goods, the spirit of the GI Act of 2013 may be undermined. Accordingly, we should not concentrate all our attention to these three products. Instead, it is important to assess the overall benefits that GIs may bring about for Bangladesh in general.

As a matter of clarification, I do not seek to use this platform to hold India or Bangladesh as having done any wrong to each other. As a proponent of GI protection myself, my contention is that GIs must be appreciated for their features as a general matter, in the hope that GI protection will have a positive impact on national development. Thus, as Bangladesh now has laws protecting GIs, I look forward to seeing the benefits that GIs may bring in future to local and national development in Bangladesh.

4 Salient Features of the Geographical Indication Act 2013 and Its Compatibility with TRIPS

The GI Act 2013Footnote 48 has recently been adopted in Bangladesh. Over the course of the last few years, especially in 2012–2013, GI protection for local products has become one of the most discussed issues in Bangladesh. As mentioned in the previous section, the debate started when Bangladesh started to fear that its traditional goods might not be able to get protection abroad considering the cross-border journey of these well-reputed products, especially Jamdani. The protection of other goods was also pertinent for similar reasons.Footnote 49

4.1 The Definition of Geographical Indications

In accordance with the definition of GIs given in TRIPS, the GI Act of 2013 states that GIs can be used to denote the origin of goods where the quality, reputation, or other characteristics of such goods is essentially attributable to the place of origin of the said goods.Footnote 50 As per the definition, agricultural and natural goods can be protected as GIs, where the soil and climate play the key roles for the distinctive characteristics of the goods. The definition under the GI Act of 2013 goes beyond the TRIPS and specifically states that GIs can be used to designate manufactured goods as well.Footnote 51 It is thus implied that GIs can be used to designate a product, even where the characteristics of the product are the sole outcome of human factors, as long as it has developed reputation from a particular place. For the protection of GIs that relate to manufactured goods, any of the activities relating to the production, processing, or preparation of the designated goods must take place in a particular territory and the reputation and the characteristics of those products should be attributable to that territory.Footnote 52

4.2 Protection of Geographical Indications under the Geographical Indication of Goods (Registration and Protection) Act 2013 in Bangladesh

TRIPS requires that members provide legal means to prevent the use of GIs in a way that can mislead the public as to the geographical origin of the goods,Footnote 53 but it does not suggest the means of protection. As was mentioned earlier, the members of TRIPS may comply with this obligation by adopting various measures, such as through the adoption of a sui generis system,Footnote 54 through the adoption of provisions under trademark laws that have the effect of protecting GIs,Footnote 55 or through unfair competition law.Footnote 56

The GI Act of 2013 provides for registration as a means of protection of GIs under Chapter IV of the Act, but unregistered GIs are also protected under the GI Act if the indication is true as to its place of origin.Footnote 57 The registration of geographical indications may be sought by the producers of the goods or any association, institution, government body, or authority of any group which represents the interest of persons producing geographical indication of goods.Footnote 58 Any individual or group of individuals that are related to the production, collection, preparation, or processing of the goods registered under the Act may also be registered as authorized users of the goods so indicated.Footnote 59 The term of registration is for five years,Footnote 60 subject to renewal.Footnote 61 Compared to the GI laws of other Asian countries, this initial term of protection appears to be shorter.Footnote 62 To my mind, this provision may discourage the registration of many goods as the registration process is complex and requires intense scrutiny. However, if this provision was intended by legislators to ensure consistent quality of a given product before renewal, then it should nevertheless be appreciated.

Once validly registered, an authorized user of the registered geographical indication is entitled to use it in connection with his goods. He is also entitled to the remedies provided under the Act for the infringement of geographical indication.Footnote 63 However, the rights acquired through registration cannot be alienated in a way of transmission, assignment, licensing, etc.Footnote 64

The GI Act of 2013 does not provide for any “misleading test” as a condition for registration or protection of GIs within the Act. The GI Act provides for equal levels of protection to all products for which GIs can be used. In other words, it does not provide for any enhanced level of protection to any particular products like wines, spirits, etc. However, the provision for the protection of homonymousFootnote 65 GIs has been incorporated within the Act following TRIPS,Footnote 66 but with a wider scope. The GI Act makes provision for the registration of homonymous GIs for all products.Footnote 67 So it follows that, unlike TRIPS, the protection of homonymous GIs is not limited to wine or any other particular product. However, the registration of certain GIs is prohibited under the GI Act. Consumer deception or confusion and public morality, inter alia, are set as criteria for which the registration of GIs is prohibited.Footnote 68 The GI Act also prohibits the registration of GIs that are generic, or that are not protected or ceased to be protected or have fallen into disuse in the country of origin.Footnote 69 This provision is enshrined within the GI Act in consonance with Articles 24.6 and 24.9 of TRIPS. Article 24.9 provides that

[t]here shall be no obligation under this agreement to protect geographical indications which are not or ceased to be protected in their country of origin, or which have fallen into disuse in that country.

This provision implies that a member state of TRIPS cannot protect its GIs in the territory of other WTO members, unless the GIs are protected in their country of origin.Footnote 70 Accordingly, this provision may lead many countries to adopt their own GI protection regime, within their municipal law, for the purpose of reciprocal protection of GIs in international level. By the virtue of this provision, Bangladesh is now in a position to claim protection of its protected GIs in foreign territories and vice versa.

Apart from the reasons mentioned above, for which registration is prohibited within the GI Act of 2013, protection may also be denied if a third party can prove that the proposed registration should not be proceeded with for any justifiable cause spelled out in the GI Act of 2013.Footnote 71 This part of the Act is designed to provide for procedural safeguards so that the rights of all concerned are not impaired. At this stage, the Registrar is empowered with the discretion to either allow or deny the registration. The GI Act of 2013 is silent as to whether any party aggrieved from the Registrar’s decision can move to the court of law following the dissonance. Thus, it may reasonably be inferred that the conclusion that the Registrar arrives at is final. This feature of the Act may thus curtail the possibility of judicial scrutiny, and should therefore be a point of reconsideration for the legislature.

As a means of protecting the interests of legitimate right holders, the GI Act of 2013 enables the same to institute infringement actions against any illegal use of GIs. The Act defines certain acts as infringement of GIs for which imprisonment and monetary fine is provided as punitive punishment.Footnote 72 Any use of GI that causes confusion among the consumers regarding its true originFootnote 73 or any act of unfair competition or passing offFootnote 74 would constitute infringement under the Act. The use of GI in translation of the true place of origin or GI accompanied by expression such as “kind,” “type,” “imitation,” or like expression would also constitute infringement.Footnote 75 All of these provisions encompassed in the GI Act of 2013 are in line with the provisions of article 22.2(a), 22.2(b), and article 23.1 of TRIPS. Within TRIPS, unfair competition is an act that constitutes unfair competition as per article 10bis of the Paris Convention.Footnote 76 The present Act provides the definition of unfair competition with a list of activities that constitute unfair competition, in line with the relevant provisions of the Paris Convention.Footnote 77 The scope of section 28(d) of the GI Act of 2013Footnote 78 is wider than article 23.1 of TRIPS.Footnote 79 Unlike TRIPS, the section does not provide for any discrepancy among the type of products in evaluating the infringement of GIs, even if they are accompanied with expressions like “kind,” “type,” “style,” etc. In other words, the enhanced protection that is granted to wines and spirits only within TRIPS is extended to all products under the Act.

4.3 Relationship of Geographical Indications with Trademarks

Following the adoption of TRIPS, GIs are recognized as an intellectual property right and are on the same footing with other branches of intellectual property, namely, patent, trademark, copyright, etc. This includes that GI protection is subjected to the application of the general provisions of TRIPS, and thus to the principles of “national treatment”Footnote 80 and “most favored nation treatment.”Footnote 81 In general, GIs can be protected with sui generis rights or through trademark protection as indicated in TRIPS, or rather due to the silence in TRIPS, as the means to protect GIs. Yet, despite the similar nature of trademarksFootnote 82 and GIs, the relationship between these two types of protection is contentious.Footnote 83

In Bangladesh, the GI Act of 2013 redefines their relationship between the two types of intellectual property rights, but, of course, in a very narrow way. It provides that the registration of certain trademarks may be canceled or denied if they are in conflict with the GIs, and if the said trademark is comprised of a GI and the goods or services so indicated are not produced in the place they indicate,Footnote 84 or, the trademark is used in such a manner that can create confusion among the consumers as to the place of origin of the goods or services.Footnote 85 The equivalent of this section in TRIPS is Article 22.3,Footnote 86 which requires that members refuse and invalidate the registration of the trademarks consisting of GI relating to goods, if the trademark is used in a way that misleads the public. The members will be required to do so either at the request of the interested party, or in any manner which is provided for in the legislation of the member.Footnote 87 Before the enactment of the GI Act, a similar sort of protection was granted to GIs against trademarks under the Trademark Act of 2009, where it is said that a trademark shall not be registered if the word proposed as a trademark is a geographical name.Footnote 88

However, TRIPS does not bind members to protect GIs against identical or similar trademarks in a way that is unilaterally advantageous to the GIs and to the detriment of trademarks. As a result, under the GI Act of 2013, trademarks have been given protection against GIs under certain circumstances. In particular, the GI Act provides that the registration or validation or the right to use a trademark consisting of GIs will not be prejudiced if the said trademark is registered or used with bona fide belief before the GI Act came into being or before an application for registration of a GI in question is submitted. These provisions for the protection of trademarks embody the so-called principle of “first in time, first in right” in light of Article 24 of TRIPS. Article 24.5 of TRIPSFootnote 89 states that where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith, the validity, registration, or a right to use a trademark should not be prejudiced on the basis of it being identical or similar to a GI. Article 24.8 of TRIPSFootnote 90 also protects the right of a person to use his name or the name of his predecessor in the course of trade. Accordingly, the GI Act of 2013 follows the TRIPS’ provision and provides that GI protection does not prejudice the right of a person to use his personal name or the name of his predecessor in connection with his business, unless such use is misleading.Footnote 91

5 Protecting Jamdani as Traditional Knowledge

At the international level, the possibility to protect traditional knowledge (TK) through GI protection has been recognizedFootnote 92 by some scholars who have pointed out that TK and GIs both share a common characteristic, namely, the connection to a given territory. This connection is often articulated in the notion of “terroir,” a concept that was originally born in France and refers to a terrain, place, or soil of a particular region that contributes to the unique characteristics of the products originating from the region. In particular, these unique characteristics linked to the terroir are the biophysical features of a particular place as well as the contribution of the people who are traditionally associated with the place and who have preserved and nurtured knowledge relating to the place, and in turn the place–quality relationship with respect to the products manufactured in the place.Footnote 93

Nevertheless, despite the positions supporting that GI protection could serve to also protect TK, some doubts have been expressed as to whether GIs are a suitable mechanism to ensure this protection.Footnote 94 In particular, it has been said that TK is a generic notion, which covers traditional cultural expression, folklore, etc. It stands for the knowledge, skill, know-how, and practices that have been developed, sustained, and passed on from generation to generation within a community. To a large extent, TK is a reflection of a given community’s cultural identity and can be found in a variety of contexts, such as agricultural, scientific, technical, etc.Footnote 95 Instead, the protection legally granted to GIs only extends to protect the name or the symbol that identifies the components of TK and is based on characteristics, knowledge, and skill intertwined in the terroir of the GI-denominated region.Footnote 96

Still, by extending the definition of GIs to include the quality, characteristics, or reputation of the products in the alternate as the distinct qualifier for GI protection, TRIPS has nonetheless paved the ground for using GI protection to protect TK.Footnote 97 The reputation or characteristics embodied in any GI-denominated product is in fact the result of the association of the TK associated with the GI-denominated region and the natural factors of the region. In this context, it is to be evaluated whether Jamdani, a form of fabric that reflects the skill and knowledge of a given community associated with a particular territory, can be protected under GI regime within TRIPS.

As noted earlier, Jamdani is perhaps the most sought-after fabric from Bangladesh. Its uniqueness has similarly caught the attention of fashion lovers from all over the world.Footnote 98 The exact etymological origin of the word Jamdani is not known, and there are divergent opinions as to its original meaning. According to one authority, the word Jamdani is the combination of two words, “jam,” which in the Persian language refers to a superior-quality alcoholic beverage, and “dani,” which refers to an artistic serving dish. The proponent of this view holds that the fine quality of Jamdani could only be compared to something that was also adored for its supreme quality.Footnote 99 Others opine that the word originated from a Persian word jam-dar that means flowered or embossed.Footnote 100 Muslin,Footnote 101 the finest fabric of the history, is believed to be the ancestor of Jamdani. Jamdani was considered best among all the forms of Muslin. The patterns and motifs of Jamdani are floral and geometrical and are believed to have strong Persian influences.Footnote 102 Commonly, Jamdani patterns are geometric representations of trees, flowers, animals, etc.

The historical value of Jamdani is established from the fact that it has been chronicled in various historical documents as a fabric favored by emperors and kings.Footnote 103 The mention of Jamdani as an industry is found in Kautilya’s Arthashastra (book of economics), where it is mentioned that this finest fabric was made in, what was then, Bengal and Pundra (now Bangladesh).Footnote 104 Although exact statistics are not known, Jamdani fabrics are now woven in Bangladesh in almost 150 villages from the adjacent areas of Dhaka like Rupgonj, Sonargaon, Sidhirgonj, etc.Footnote 105 Historically, Jamdani had been associated with this particular area due to the availability of superior-quality cotton, which is the raw material of Jamdani. Today, the Jamdani industry is still confined to these particular villages. Although there have been several instances of Jamdani-like imitations in other areas of the country, such imitations have failed to achieve Jamdani’s level of prominence.Footnote 106

In addition, to use certain specific designs, Jamdani fabrics are woven following a particular traditional process. The weaving instructions are given by the master weaver to the apprentices verbally through poetic recitation known as buli or sloka. In this way, the knowledge of weaving patterns and processes are passed from masters to apprentices, that is, from generation to generation verbally.Footnote 107 Generally, members of the same family are involved in various activities of the weaving process. Currently, almost all weavers are either uneducated or have received little education. Nevertheless, all weavers have a very keen, perhaps intuitive, mathematical sense and mathematical skills as they have to understand the instruction of the weaving patterns, however complicated they are, from the bulis memorized by the masters.Footnote 108

Historical analysis shows that muslin, the predecessor of Jamdani as traditional fabric, was patronized by the contemporary rulers, including the royal Mughals, for its sophistication. However, the industry of hand-woven fabrics (including both muslin and Jamdani) fell into decline following the separation of India and the Liberation War of Bangladesh in 1971. This decline persisted until the 1980s. At that time, the industry of hand-woven fabrics experienced a revival, thanks to a number of craft development organizations, non-governmental organizations (NGOs), and individuals who came forward to rescue the industry through economic patronization.Footnote 109 This intervention expanded the use of the fabrics with respect to other clothes. For example, conventionally, the use of Jamdani was limited only to sarees. Instead, today the Jamdani fabric is widely used as a dress material and for making various products, including home décor. Jamdani products are also exported to various countries of the world, thereby contributing greatly to the Bangladesh economy.

Because of this “success,” however, designers have recently begun changing the traditional designs of the Jamdani in the name of modernization. Moreover, it is also feared that the originality and simplicity of Jamdani may be destroyed in the guise of value addition through the curse of globalization.Footnote 110

Based on the above, Jamdani was certainly a name that qualified to be protected as a GI in Bangladesh. Even though GIs are used predominantly for the protection of agricultural goods, the use of GIs is not limited to agricultural products. Instead, GIs can be protected also when they identify products whose special qualities are the outcome of human factors like manufacturing skills and traditions, and not necessarily geological and other natural factors.Footnote 111 In other words, even though the unique characteristics of Jamdani are unlikely to be rooted in the climatic factors and other factors directly dependent from the soil and the land as other products, particularly agricultural products, usually are, Jamdani products also carry inimitable characteristics. These characteristics can be essentially attributable to the know-how and the human-factor-based traditions that are rooted in the geographical area where the Jamdani fabrics are woven.

Recently, research has been conducted to reconstruct the history of Jamdani. After examining historical documents, the researcher has revealed that the overall environment of the area around the river Shitalakhya has significantly contributed to the quality of cotton that is used as a raw material of Jamdani fabric. In his paper, the researcher has opined that this is perhaps the reason why Jamdani has developed in this particular area.Footnote 112 Thus, there is no denying of the fact that Jamdani has developed its reputation from its place of origin. Accordingly, even though Jamdani does not fit into that group of GIs for which natural factors – i.e. the land, the air, and the climate – have an impact on the distinctive qualities of the products, it clearly fits in with the TRIPS’ definition based on “other characteristics” and “reputation.” In particular, Jamdani fabrics derive their characteristics and reputation only from a particular place or territory in Bangladesh.

Another question might be whether GI protection should be extended only to names that are also the names of a place or territory. Famous examples in this respect include Darjeeling tea, Thai silk, Parmesan cheese, etc. The current law on GI protection, however, does not require that the GI names correspond to a geographical name, so long as the GI-denominated products originate from a clearly defined region. Examples in this respect include Vinho Verde, Cava, and Argan oil.Footnote 113 By making reputation an independent criterion for GI protection, TRIPS implies that it is not the name of the geographical area but the significance of the geographical area as it attaches to the name of the products that has to be considered.Footnote 114 Here again, the GI Act of 2013 supports this interpretation,Footnote 115 which paved the way to protecting Jamdani as a GI in Bangladesh.

Ultimately, in November 2016, Jamdani was registered as the first GI of Bangladesh under the GI Act of 2013.Footnote 116 Bangladesh Small and Cottage Industries Corporation (BSCIC) applied for the registration of Jamdani in class 25(cloth) for saree, which is the traditional wear of Bangladeshi women. BSCIC submitted several documents to get the registration. These documents reveal historical and geographical facts and evidence to establish the nexus between the fabric and the place where it is produced.Footnote 117 The authority concerned, Department of Patents, Designs and Trade Marks (DPDT), after conducting a meticulous examination of the submitted documents, finally registered Jamdani on November 18, 2016, and the certificate of the registration was handed to the chairman of BSCIC.Footnote 118

6 Conclusion

It goes without saying that the adoption of the GI Act of 2013 in Bangladesh has paved the way for the protection of traditional products nationally and possibly abroad, if Bangladeshi GIs could be registered in other countries. However, the enactment of the GI Act of 2013 is merely the first step in a longer process of recognition, commercialization, and management of Bangladeshi GIs and GI-denominated products. Moreover, alone, the GI Act may not be adequate to successfully protect the cultural heritage of Bangladesh. In any event, in order to preserve the cultural heritage of Bangladesh, the first task to be undertaken is to identify products that can be protected as GIs. These products, and the GIs that identify them, should then be brought under the registration mechanism now put into place by the GI Act of 2013 as has been the case with the registration of Jamdani in November 2016.

To make this possible, however, a vigorous campaign may be needed to alert stakeholders and make them sensitive to the importance of GI registration. Still, we may have to wait several years to adequately determine the success of the GI Act of 2013 in relation to an effective protection of GIs in Bangladesh. Certainly, the enactment of the GI Act is aligning the legal system in Bangladesh with countries that have a tradition of protecting GIs, and this in turn creates the legal conditions for creating an effective system for the protection of cultural heritage and tradition of Bangladesh. An effective protection for Bagladeshi products can only come, however, from long-term wise management of national products and their names, and not only from GI registration.

19 From Chianti to Kimchi: Geographical Indications, Intangible Cultural Heritage, and Their Unsettled Relationship with Cultural Diversity

Tomer Broude Footnote *
1 Introduction

This chapter provides a critical perspective on the impact of two particular international legal constructs – geographical indications (GIs) and intangible cultural heritage (ICH) – on cultural diversity, with a focus on culinary culture. International law increasingly comprises a broad range of direct and indirect interactions with cultural diversity, such as international trade law, international human rights law, and cultural heritage law itself.Footnote 1

The law of GIs, the form of intellectual property protection that is the main topic of this edited volume, is certainly relevant in this respect, and GIs are often casually mentioned as being potentially useful in the promotion and protection of cultural diversity.Footnote 2 So is the evolving law of ICH, a concept that can overlap, and in certain circumstances may even conflictFootnote 3 with traditional intellectual property rights,Footnote 4 although in formal senses it is distinct from intellectual property. The 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH), adopted under the auspices of the United Nations Educational, Scientific, and Cultural Organization (UNESCO), does not in itself establish intellectual property rights, whether individual or collective,Footnote 5 and indeed carefully distances itself from internationally recognized intellectual property disciplines, such as GIs.Footnote 6 Moreover, ICH is “not necessarily original or unique”Footnote 7 – hardly the makings of classical intellectual property rights. Yet like GIs, ICH also unmistakably interacts with cultural diversity – the CSICH itself goes so far as to state that ICH, with all its uncertainties, is “a mainspring of cultural diversity.”Footnote 8

Similarly, both GIs and ICH have a special, though far from exclusive, affinity with culinary cultural practices. GIs are certainly assigned to various nonfood products, but are most clearly associated with agricultural products, as the ongoing debate (especially in Europe) on the extension of GI protection to nonagricultural products demonstrates.Footnote 9 As for ICH, the “Representative List of the Intangible Cultural Heritage of Humanity” under Article 16 of the CSICHFootnote 10 (the “Representative List”) and the “List of Intangible Cultural Heritage in Need of Urgent Safeguarding” under Article 17 of the same ConventionFootnote 11 (the “Urgent Safeguarding List”) now include a broad variety of over 300 “elements” from all around the world, ranging from Madagascan wood-carvingFootnote 12 to Karabakh horse-riding games.Footnote 13 The lion’s share of these is not related to food, but some of these elements relate, directly or indirectly, to culinary practices – food, beverage, and culinary customs can surely be “cultural,” whether in their production or consumption or their social representations of identities,Footnote 14 even if they are often in need of special, apologetic, justification.

Just as GIs include Champagne, Darjeeling, and Parmigiano Reggiano, inscribed ICH elements include culinary ones such as the Mediterranean Diet,Footnote 15 the Gastronomic Meal of the French,Footnote 16 and Traditional Mexican Cuisine – Ancestral, Ongoing Community Culture, the Michoacán Paradigm,Footnote 17 and Kimjang, Making and Sharing Kimchi in the Republic of Korea.Footnote 18 Thus, both GIs and ICH lie at the intersection between cultural diversity and culinary practice. In this chapter I will discuss whether GIs and the legalized mechanisms of the CSICH can contribute to the protection and promotion of cultural diversity. My partial focus is on culinary practices, but the analytical framework is not specifically tailored to them, so that the analysis and discussion can certainly be extended to other types of GIs and ICH. Generally, my view of the effectiveness of GIs and ICH in this respect is critical, even skeptical, because their impact on cultural diversity will be uncertain and inconsistent, if not perverse.

Given the focus of this book, an exposition of GIs is not required here. However, it is necessary to dwell on the main legal and institutional elements of ICH and the CSICH, and this will be done in Section 2. In Section 3, I will discuss the relationship between the concepts of ICH and cultural diversity, taking into account the respective legal contexts of the CSICH and UNESCO cultural diversity law, primarily the 2005 Convention on the Promotion and Protection of the Diversity of Cultural Expressions (the CCD).Footnote 19 The section builds on a positive framework I have previously developed elsewhereFootnote 20 with respect to GIs as a point of reference for the purpose of critically assessing the effectiveness of legal measures ostensibly aimed at the protection and promotion of cultural diversity. Section 4 loosely applies this framework to two culinary practices inscribed as ICH: the Mediterranean Diet, and (as a more specific example from Asia) Kimjang, Making and Sharing Kimchi in the Republic of Korea. Section 5 concludes with general observations on the prospects and pitfalls of applying legal frameworks to the dynamics of cultural diversity.

2 Intangible Cultural Heritage and the Convention for the Safeguarding of the Intangible Cultural Heritage: A Critical Primer

In this section, I shall neither provide a detailed exposition of the concept of ICH nor a full commentary on the CSICH. These are already available, mainly through the work of scholars and experts who were close to the drafting process of the CSICH.Footnote 21 Instead, I will merely survey some fundamentals that are necessary for an analysis of the potential impact of the CSICH on cultural diversity in culinary practices.

In the most general of terms, the CSICH reflects the understanding that significant dimensions of humanity’s cultural heritage are encapsulated not in physical and inanimate (i.e., tangible) artifacts, monuments, or sites but rather in living practice and knowledge. Furthermore, the CSICH is explicitly driven by the fear that “the processes of globalization and social transformation” give rise to “grave threats of deterioration, disappearance and destruction” of ICH.Footnote 22

Article 2(2) of the CSICH refers to a non-exhaustive list of five “domains” in which ICH is revealed: oral traditions and expressions (including language); performing arts; social practices, rituals, and festive events; knowledge and practices concerning nature and the universe; and traditional craftsmanship.Footnote 23 This very broad range of ICH manifestations is amplified by the even broader overarching definition: “Intangible Cultural Heritage” means “the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage.”Footnote 24

Despite the best efforts of the drafters of the CSICH (or not),Footnote 25 these definitions raise significant problems of legal application and operationalization, if taken seriously. First, they seem exceedingly broad, with no clear outer limits. In this respect, it is not very helpful to observe that “not all human cultural activity is defined as [ICH].”Footnote 26 The drafters of the CSICH may have assumed that ICH is first and foremost limited to “traditional” culture, as opposed to new, contemporary, or modern cultural expressions, but this is not effectively reflected in the text,Footnote 27 which is ultimately very inclusive. Indeed, UNESCO prides itself on the inclusiveness of the CSICH.Footnote 28 Thus, to the extent that the CSICH establishes rights and obligations of states parties to it, the scope of application appears to be both very far-reaching and inadequately delimited.

Second, the general definition of ICH seems to be particularly wooly. Indeed, on its face, it appears to be utterly tautological and self-selecting: ICH is what someone “recognize[s] as part of their cultural heritage.”Footnote 29 It is not clear in what sense the word “recognize” is employed here – is it declarative or constitutive, objective or subjective, or some combination thereof? Some commentators have embraced this “self-identification” character of ICH, citing it as an indication of a significant “philosophical” rationale of the CSICH that distinguishes it from the 1972 World Heritage Convention, making ICH totally dependent upon the “subjective perspective of its creators and bearers.”Footnote 30 In theory, such unchecked self-selection is problematic. In practice, it is disingenuous. While it applies to ICH in general, the more robust inscription and listing processes under Articles 16 and 17 CSICH,Footnote 31 discussed below as the hardcore of CSICH substance, ultimately require institutional, political, non-idiosyncratic approval.

Third, in one fell swoop, tangible elements are clearly incorporated into the intangible realm of cultural heritage. Indeed, by any account, the tangible and intangible components of cultural heritage are difficult, if not impossible, to disentangle.Footnote 32 But the CSICH only glosses over this connection, leaving open operative questions relating to the degree of dependence of ICH on tangible components and vice versa.

Fourth, none of the constituent terms (such as “practices,” “representations,” “artefacts,” “cultural spaces,”Footnote 33 etc.) is defined anywhere. These are terms whose meanings are gradually being filled post hoc and ad hoc through the work of expert and/or intergovernmental bodies at UNESCO, but whose forward-looking and conduct-defining capacities are a priori limited. Indeed, even the Operational Directives prepared and adopted under the CSICH do not add formal clarity in this respect.Footnote 34

Fifth, the relationship between the safeguarding of ICH, on the one hand, and other potentially overriding public policy considerations, on the other hand, is not sufficiently clarified in the CSICH, to say the least. The anthropological definition of culture is broad enough to include “almost all aspects of human behavior,” including practices that violate human rightsFootnote 35 or even Female Genital Mutilation.Footnote 36 The drafters of the CSICH were well aware of such potential conflicts, and attempted to embed ICH within a human rights context. Already the 1st recital of the CSICH refers to “international human rights instruments,”Footnote 37 alluding not only to economic, social, and cultural rights but also to civil and political rights. Article 2(1) CSICH, in its third sentence, provides that the Convention will consider ICH only if it “is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.”Footnote 38 As far as human rights are concerned, this clearly raises the problem of cultural relativism, and no less importantly, of cultural politics.Footnote 39 The phrasing of the relevant part of Article 2 CSICH is fuzzy, much less resolute than its corollary in Article 2(1) CCD, which clearly provides that no one may invoke the CCD in order “to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.”Footnote 40 But in any case, the potential for conflict is considerable, entering dangerous and politically sensitive waters.

The above are general definitional problems regarding the CSICH. What of its substance? The purposes of the CSICH under Article 1 include “safeguarding” ICH, “ensur[ing] respect” for ICH, “raising awareness” of the importance of ICH, and providing for international cooperation and assistance.Footnote 41 Safeguarding is perhaps the most important of these operative purposes, and is defined very broadly in Article 2(3) CSICH as “measures aimed at ensuring the viability of the [ICH],” including softer yet more technical measures such as identification, documentation, research, and education, but also harder and potentially much broader measures such as “preservation, promotion, enhancement, [and] transmission.”Footnote 42

How does the CSICH translate these goals into concrete rights and obligations? At the national level (Title III, CSICH),Footnote 43 states parties are subject to a broad obligation to take “necessary measures to ensure the safeguarding of ICH present in [their] territory.”Footnote 44 These measures consist mainly of drawing up inventories, submitting periodic reports to the CSICH Committee, adopting policies for promoting ICH in society, establishing institutions, fostering research, and adopting other measures, including financial ones to this end.Footnote 45 States parties also endeavor to ensure education, awareness, and capacity building, all with participation of communities, groups, and where appropriate, individuals who are creators and bearers of ICH.Footnote 46 In short, the obligations are very general, discretionary, policy-oriented, and lacking in terms of enforceability and accountability. This is not to say that the provisions on safeguarding of ICH at the national level may not have any legal consequences whatsoever, e.g., in the justification of measures taken in provisional violation of other international obligations (such as under trade and investment agreements), but I will not address this potential here.

At the international level, under Title IV of the CSICH,Footnote 47 legal commitment is even less apparent. The central construct of the CSICH is the establishment of the Representative List, the Urgent Safeguarding List, and a list of programs, projects, and activities, as articulated in Article 18.Footnote 48 Although the drawing up of these lists constitutes the bulk of the institutional and procedural work under the CSICH (and their political highlight), it bears emphasizing that the convention itself does not appear to produce any explicit legal consequences to inscription in them. The Representative List has been established merely to “ensure better visibility,” etc., as reflected in Article 16(1) of the CSICH,Footnote 49 and the Urgent Safeguarding List exists only “with a view to taking appropriate safeguarding measures” (Article 17(1) CSICH),Footnote 50 although nothing seems to prevent states parties from taking such measures notwithstanding inscriptive status of a particular item. Again, inclusion in the lists may have evidentiary or indirect legal implications in other normative systems, but the absence of express legal consequences in the CSICH is striking.

3 Law’s Uncertain Impact on Cultural Diversity: From Intangible Cultural Heritage to Geographical Indications and Back Again

With these general critical comments on the CSICH as an international legal instrument in mind, what indeed is the purported relationship between ICH and cultural diversity, writ large? As already mentioned, in its 2nd preambular recital, the CSICH denotes ICH as “a mainspring of cultural diversity.”Footnote 51 What does this mean, at least in theory? Indeed, this very phrase might be cause for concern and confusion. In English, “mainspring” refers to the driving force of a mechanical device. Yet in the other equally authoritative language texts of the CSICH (as per Article 39),Footnote 52 the word employed is quite different (e.g., Creuset in French, Crisol in Spanish) – meaning “crucible” or “melting pot[.]”Footnote 53 Cultural diversity is surely not a mechanical device, and melting pots (indeed a culinary phrase) produce uniformity, not diversity, the very term strongly associated with assimilationist and homogenizing (even “Americanizing”) approaches to immigrant cultures.Footnote 54

This suboptimal clarity in the formulation of the relationship between ICH and cultural diversity in the CSICH’s very preamble, I would suggest, is not merely textual, or (only) a matter of drafting, but rather stems from the essential dialectics and conceptual differences underlying the interlocking projects of safeguarding ICH and protecting and promoting cultural diversity. It is also a reflection of the inherent tensions between socio-anthropological conceptions of culture as fluid, dynamic, and “living” (a term which inevitably implies also the possibility of extinguishment, and “dying,” although this is rarely, if ever, acknowledged), on the one hand, and advocacy tendencies to agitate for positive, legalized protection, on the other hand. It also casts more than a shadow of doubt on the very need and justification for the CSICH, and their nature, to begin with.

Having said that, and without any conviction that these tensions can or should be reconciled in an international institutional manner, I would make the following proposition regarding the structural and interpretative relationship between ICH and cultural diversity, which is consistent with both the CSICH and the CCD. Simpliciter, the CSICH at least aims to do exactly what it says it will do, namely, “safeguard”Footnote 55 ICH (a term that in itself encapsulates the tension between the dynamic nature of culture and the more static nature of legal protection). Thus, for example, the knowledge of following a particular culinary recipe or method – say, Tiramisu, Bresaola, or Biltong – might be an ICH “item.” However, ICH – as an abstract concept, and as a collection of particular ICH “items” – is not a goal unto itself; rather, the aim is the protection and promotion of cultural diversity. The 2nd preambular recital of the CSICH indeed refers to the dangers of the “deterioration, disappearance and destruction” of ICH, but it does so in the broader context of cultural diversity.Footnote 56 The traditional making of each of Tiramisu, Bresaola, and Biltong, as we know them today, may each deteriorate and disappear, as many other traditional practices have died out over the centuries. The threat to be countered is not this dynamic process of change and recreation, but the fear that “the rich cultural variety of humanity is progressively and dangerously tending towards uniformity[,]”Footnote 57 i.e., not the disappearance of ICH expressions as such, but the erosion of cultural diversity, as an overarching value.

If this understanding of the role of ICH in cultural diversity (including culinary aspects) indeed manifests the deeper teleology of the CSICH, how is it expressed in the operational strategy(ies) of the conventions?

One approach would be a “kitchen sink” attitude to diversity in ICH, the-more-the-merrier. Anything remotely resembling ICH (e.g., any culinary or dietary dimension) is worthy, non-judgmentally, of safeguarding and promotive of diversity. This possibility is evident, for example, in Article 7 of the 2001 UNESCO Universal Declaration on Cultural Diversity, noting that “heritage in all its forms must be preserved, enhanced and handed on to future generations …,”Footnote 58 as well as in Article 13 of the UNESCO 2003 Main Lines of an Action Plan for the Implementation of [the Declaration], which referred to the formulation of policies and strategies for the “preservation and enhancement” of “notably the oral and intangible cultural heritage.”Footnote 59 This would amount to a laissez-faire approach in cultural terms, an approach that would cover anything that could fit a very broad definition of ICH, neither creating nor helpful to legal regulation based on a given set of established priorities.

In this respect, an alternative approach could be to be much more selective in deciding the relevance of ICH expressions for safeguarding because of its contribution to cultural diversity. Inclusion could thus be subject to criteria that promote policy goals, such as cultural diversity (for example, the need for “a better thematic, cultural and geographical balance” in cultural heritage).Footnote 60 Taken to an extreme, expressions of ICH would have to be selected for safeguarding according to predefined criteria. This appears, in fact, to be the unspoken strategy of the CSICH. Inscription in the Representative List (or Urgent Safeguarding List) reflects an understanding whereby listing (i.e., inclusion in the lists) makes a positive contribution to the safeguarding of ICH, which in turn makes a contribution to cultural diversity. Inscription in the lists therefore seems to be the crux (if not crucible) of the matter. And hence, the criteria for inscription become crucial, although they are not defined in the CSICH itself, and have instead been elaborated through expert and intergovernmental decisions and ultimately in the Operational Directives.Footnote 61

Turning to the inscription criteria themselves, the first criterion merely requires that the “element” constitute ICH,Footnote 62 adding nothing to the Article 2 CSICH definition. The second criterion is that inscription will contribute to visibility and awareness toward ICH, a purely discretionary call.Footnote 63 The third criterion requires a program for protection and promotion of the element – but demands no accountability from those who would promote and preserve under such a program.Footnote 64 The fourth criterion requires community/group/individual support for the element’s nomination, as a possible counterweight to institutional biases, but is certainly not difficult to satisfy.Footnote 65 And the fifth criterion requires some sovereign commitment by the states in whose territory the ICH is present – again, not a tall order, by any measure.Footnote 66 These criteria seem quite meaningless in a normative sense – perhaps especially so, when dealt with in the culinary field.

Thus, it would appear, between the inoperability of full inclusiveness, on the one hand, and the impossibility and nonpolitical correctness of substantive cultural criteria, the CSICH follows the poorest possible path, subjecting inclusion in the ICH lists to political and diplomatic decision-making, while paying some lip-service to non-sovereign community expressions of concern. The gnawing doubts remain. Can, and should, such a legal and institutional structure safeguard ICH? Can it protect and promote cultural diversity, any more than conventional intellectual property may? Does it have any real relevance to cultural expressions?

In a previous study,Footnote 67 I asked very similar questions with respect to the purported role of GIs in cultural diversity. This was undertaken in the particular context of GIs for food and wine products, as beneficiaries of enhanced international legal protection under the Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS Agreement”),Footnote 68 with distinct effects on the regulation and indeed restriction of international trade.Footnote 69 My conclusions were unequivocal: GIs “as legal mechanisms … evidently do not have the independent capacity to protect local cultures … or to prevent the erosion of cultural diversity. Market forces inevitably induce changes in local production methods and consumption preferences, in spite of the [GIs] that should, in theory, play a role in preserving them.”Footnote 70 Thus, the goal of cultural diversity, in itself, cannot justify the special commercial advantages granted by GIs as intellectual property (or quasi-intellectual property) rights to certain food products. There may be other justifications, but it does not seem that the protection and promotion of cultural diversity is one of them.

Moreover, there does not appear to have emerged any countervailing logic or evidence over the last decade. In this respect, it is in fact worth clarifying and emphasizing that at no point does the argument against the utility and effectiveness of legal protections of culinary cultural diversity – whether through GIs, or the concept of ICH, for that matter – target “a preservationist notion of cultural heritage[,]” or rely upon the drawing of “binary distinctions between tradition and innovation[.]”Footnote 71 To be sure, as already discussed, such static/preservationist notions do exist in both scholarly work and legal formulations, often in tension with the more fluid and dynamic concepts of culture, which I most certainly share. However, the analysis of the irrefutably immense and fundamental changes in the substantive content of (model) protected GIs (such as the wine Appellations of Origin of Chianti Classico or St. Joseph, as mere cases in point)Footnote 72 does not just describe the occurrence of these changes, and certainly does not decry them as such. Rather, the critique seeks to explain these changes as primarily driven by markets, local and global, and/or by regulatory capture, despite legal protection. It is these important attributes of the process of change in cultural expressions in the shadow of legal regulation that often negate deep-seated traditions and heritages of innovation and cultural evolution. Thus, the values underlying the cultural heritage and diversity discourse are not meaningfully promoted by the legal frameworks that have ostensibly been constructed around them. To belabor the point somewhat, tradition and innovation are mutually conducive, not exclusive, and cultural diversity is a value nourished by both. It is, however, less than clear – rationally and empirically – that legal frameworks, of intellectual property rights or their ilk, truly protect or promote either one or the other.

Moreover, the framework of analysis applied to the cultural impacts of GIs can also relate, mutatis mutandis, to the international legal “safeguarding” of ICH. I refer to three dimensions of culture relevant to GIs: the culture of production, in which the process of creating a good – the way in which it is made – endows it with “cultureness”; the culture of consumption, in which a good gains cultural value “by virtue of the context in which it is consumed”;Footnote 73 and the culture of identity, in which a good is somehow representative of a group’s cultural identity. To be sure, with respect to GIs, the focus of these dimensions is on tangible goods – a type of cheese, a wine from a particular region, a cut of beef. Thus, one might ask, how do they apply to ICH? It is always the intangible traditions that endow goods with cultural value: the method of production (how the cheese is made, in which conditions, from which materials), the context of consumption (the cultural preference for one type of wine over another, the ceremonial dimensions of drinking it, and pairing it with food and social environments), and identity-related recognition (the association of a type of beef with a regional or otherwise group identity). It is these intangible dimensions that culture informs and changes over time and place, but also that markets inevitably apply pressure upon to change, become diluted, even to homogenize, regardless of culture. And it is with respect to these dimensions that we must ask whether legal protections can contribute to the safeguarding, protection, or promotion of culinary cultural diversity.

4 Intangible Cultural Heritage, Cultural Diversity, and Culinary Practices: Two Case Studies
4.1 The Mediterranean Diet

The Mediterranean Diet was inscribed on the Representative List in 2010,Footnote 74 at the nomination of Greece, Italy, Morocco, and Spain.Footnote 75 In 2013, the supporting parties and geographical range of the item were amended and expanded to include additional “emblematic” communities in Cyprus, Croatia, and Portugal.Footnote 76 There are significant differences between the nomination documents in 2010 and 2013 that are worthy of scrutiny, most notably the removal of all references to the nutritional characteristics of the diet.Footnote 77 The 2013 resolution defines the Mediterranean Diet as “the set of skills, knowledge, rituals, symbols and traditions, ranging from the landscape to the table, which in the Mediterranean basin concerns the crops, harvesting, picking, fishing, animal husbandry, conservation, processing, cooking, and particularly sharing and consuming the cuisine[.]”Footnote 78

This definition is incredibly broad, almost generic, but for its geographical delimitation.Footnote 79 One could substitute the word “Mediterranean” with practically any regional denomination, leaving the rest of the phrasing untouched, and we would have the makings of another equally valid element of ICH. The definition is, of course, somehow augmented by more detailed descriptions – referring, for example, to the importance of ceramic plates and glasses, then to the role of women, families, and various local festivals, as well as passing cultural references to Plutarch and Juvenal and the health and sustainability benefits of the diet, only generally referring to Ancel Keys’ seminal studies from which the very term “Mediterranean Diet” emerged.Footnote 80 Yet these descriptions are surprisingly paltry, given the wealth of knowledge available on Mediterranean culinary culture.Footnote 81 One is struck by the vagueness and all-inclusiveness of the definition of the element to be safeguarded – especially following the removal of reference to the “nutritional model” of the diet, which is its main claim to fame.

Indeed, one might wonder whether such a broadly defined culinary concept as a “diet” (or “meal,” or “cuisine”) even formally qualifies as ICH. The question is not trivial from legal perspectives. In the context of the CCD, for example, Pulkowski is of the opinion that “in the absence of an element of representation, food items and their protected GIs should not enjoy protection [as cultural expressions].”Footnote 82 According to this narrow view, food becomes cultural for the purposes of the CCD only if it expresses a cultural identity. Moreover, until 2008, UNESCO parties and officials displayed negative views on the possibility of inscribing culinary heritage.Footnote 83

However, the approach followed by the CSICH (and I would venture that also by the CCD, contra the above position) clearly emphasizes cultures of production and consumption, perhaps even more than identity. Culinary practices and traditions, therefore, should certainly not be excluded a priori. But in examining the formal descriptions of the Mediterranean Diet, one senses such a high degree of generalization that more than a shadow of doubt is cast regarding the prudence and value of this particular inscription. We have already seen the generality of the definition, but what is the Mediterranean Diet as a domain of ICH? In its nomination documents for the Representative List, the Mediterranean Diet was noted as an oral tradition and expression; a social practice, ritual, and social event; knowledge and practice concerning nature and the universe; and traditional craftsmanshipFootnote 84 – all the enumerated ICH domains except performing arts. This lack of precision stems, to begin with, from the absence of a recognized ICH domain of culinary heritage, but it also appears to reflect an inability or perhaps unwillingness (or some combination thereof) to clearly define what it actually is that is being inscribed. Clearly, in order to expand the group of CSICH parties supporting the nomination and to avoid alienating others, definitional compromise was required; lowest common denominators were resorted to, with the resultant low level of resolution.

To be sure, the point here is not to question the validity of the claim that there is such a thing as a Mediterranean Diet in the cultural or nutritional senses – although some experts do not hesitate to do so,Footnote 85 and even some of the Mediterranean Diet’s main champions make clear that “despite a long list of shared foods, the Mediterranean is a plural and diverse world, and its food habits could not be otherwise[.]”Footnote 86 The critique here is primarily from the perspectives of legal determinacy and functional effectiveness, and relates in concreto to the previous discussion of the internal and external limits of ICH as a legal and institutional system aimed at promoting and protecting cultural diversity. At minimum, it is difficult to understand how such a vaguely and broadly defined element of ICH can serve as the basis for effective safeguarding. Indeed, in the light of the social, economic, and political sea changes that the Euro-Mediterranean regions have witnessed, even just over the last decade,Footnote 87 it seems either tremendously naïve or disingenuous to think that such a vaguely defined item can have any genuine safeguarding effects. Despite the commonalities between them, the inclusion of such different culinary traditions as the Moroccan, Spanish, Italian, Greek, Cypriot, Croatian, and Portuguese under the same Mare Nostrum umbrella at least raises the fear that these distinct cultures will indeed be thrown into a melting pot, at the risk of cultural dilution and caricaturization. Proponents of the Mediterranean Diet are not oblivious to the additional concern that the inscription will be commercialized and commoditized,Footnote 88 but as in the case of GIs, this seems quite likely to happen, whether with respect to products or to food tourism.Footnote 89 How this will affect the safeguarding of ICH and the promotion and protection of cultural diversity is impossible to predict.

What is clearer, however, is that the advent of the Mediterranean Diet – in 2010, but even more so with its amendments in 2013 – is a child of the new “culinary diplomacy” or “gastrodiplomacy,”Footnote 90 reflecting in high relief the fears of both the politicization and the expert reductionism of ICH – with little to show for an effective protection and promotion of cultural diversity.

4.2 Kimjang, Making and Sharing Kimchi in the Republic of Korea

The problems noted above with regard to the ICH inscription of the Mediterranean Diet as far as the protection and promotion of cultural diversity are concerned may be in significant part attributed to the highly, indeed overgeneralized and diluted nature of the inscription itself. What, then, of more specific and specialized culinary inscriptions that address particular foods? Kimjang, Making and Sharing Kimchi in the Republic of Korea is a noteworthy example. It was inscribed on the Representative List in 2013,Footnote 91 at the nomination of the Republic of Korea (South Korea).Footnote 92 Kimchi, as a distinct type of food, is defined (indeed, much more specifically than the Mediterranean Diet) as “Korean-styleFootnote 93 preserved vegetables seasoned with local spices and fermented seafood.”Footnote 94 Notably, the inscribed item reflects both a culture of production (the making of Kimchi) and a culture of consumption (its sharing). Kimchi serves as an omnipresent side-dish in Korean cuisine, and the Nomination File expounds on the long-lasting and pervasive tradition of making Kimchi.Footnote 95

Beyond consumption and production, the ICH item of Kimjang, the traditional making of Kimchi, claims to reflect a culture of identity that is much more pronounced than the Mediterranean Diet. In Korean eyes, Kimchi is utterly Korean, reflective of a constructed “national spirit.” The typical Korean Kimjang narrative refers to the geographical seclusion of the Korean peninsula and evokes its long winters and harsh terrain, its twentieth-century poverty, its reliance on the fruit of the sea, and its people’s resilience.Footnote 96 National pride in the purported uniqueness of Kimchi and its effects has even led to the establishment of a governmental “World Institute of Kimchi” that presents an ethos whereby “Kimchi is the soul of Korean cuisine.”Footnote 97 Outsiders acknowledge Kimchi as “the nearest thing to a culinary national treasure[.]”Footnote 98 And there are other talking points, relating to society, health, and gender. Traditional Kimchi-making is praised as “familial and emotionally resonant[.]”Footnote 99 Moreover, Kimchi has been associated with positive health effects, including the relative absence of obesity among Koreans,Footnote 100 although causality in this respect is uncertain. In social terms we are told that “[A]ll Koreans are [thus] part of one large [K]imjang community, which transcends regional and socio-economic boundaries within Korean society[.]”Footnote 101 National pride in Kimchi and its making has gone a long way – indeed as far as outer space.Footnote 102 Notably, in the ICH Nomination File, South Korea only applied two ICH domains (“social practices,” etc., and “practices concerning nature”) – leaving out “traditional craftsmanship” – thus, perhaps, emphasizing the social aspects of Kimjang rather than the specificities of traditional production. Driving home the importance of Kimjang in Korean society, the Nomination File cites a survey according to which “95.7 percent of Koreans reported regularly eating homemade kimchi either prepared within their households, or supplied by other family members or acquaintances. Only 4.3 percent acknowledged purchasing factory-made kimchi[.]”Footnote 103

This is all very impressive from social, cultural, and culinary perspectives, and on the record of these facts there should be little doubt that Kimjang is indeed worthy of ICH inscription. More worryingly, however, there is also little doubt that traditional kimchi-making is under threat and in need of safeguarding. In fact, the Nomination File belies the current crisis of Korean kimchi, which is characterized by significantly reduced consumption,Footnote 104 and a huge rise in the importation of commercially produced kimchi made in China.Footnote 105 The survey data cited in the Nomination FileFootnote 106 do not take into account the large amounts of kimchi eaten in restaurants, which is often Chinese industrial kimchi. Whereas the Nomination File cites a 2011 study by the Korea Rural Economic Institute (KREI), according to which only 6.8 percent of kimchi consumed in Korea is commercially produced,Footnote 107 more recent data from the World Kimchi Institute suggest that Chinese commercially produced kimchi alone accounts for as much as 13 percent of national consumption.Footnote 108 Moreover, the KREI itself suggests a much higher proportion of industrial kimchi in overall consumption, both at the Korean household level and in the catering and restaurant industry (including governmental and military).Footnote 109 This is borne out by earlier studies as well.Footnote 110

These trends and their influence on Kimjang raise fears relating to erosion of cultural diversity. In this chapter, my concern, however, is with the effectiveness of international legal measures, such as GIs and ICH, that purport to directly protect and promote cultural diversity. More specifically, the question is whether from a legal perspective the ICH inscription or anything within it has the potential to safeguard traditional Kimjang in the face of commercial pressures and political interests abound with respect to kimchi.

In addressing this question, it is important to first recognize that the ICH inscription is not kimchi’s first engagement with international law, and that South Korea has in fact been employing international legal measures to influence kimchi’s domestic and international position for the last two decades, in ways that are more related to trade interests than to cultural diversity. In the second half of the 1990s, South Korea became troubled by the rising popularity of a Japanese, nontraditional version of Kimchi (called “Kimuchi,” as a pronunciation of kimchi), which typically does not involve fermentation processes.Footnote 111 This led South Korea to campaign for the adoption of an international Codex Alimentarius standard for kimchi, which was ultimately approved in 2001.Footnote 112 The Codex standard emphasizes that kimchi must be fermented. It has, however, another interesting qualification that is far less traditional. Under the Codex standard, kimchi must be based on Chinese cabbage.Footnote 113 Cabbage kimchi (paechu) is indeed probably the most popular type of kimchi in South Korea, but it is rivaled by Daikon (mu) radish kimchi (Kkakdugi); moreover, kimchi, as a cultural culinary product, is highly diverse, with hundreds of types of kimchi utilizing many different basic ingredients, with numerous regional (Korean) styles.Footnote 114 Yet the Codex Alimentarius promoted by South Korea requires, as an exclusive basis, Chinese cabbage. The Kimjang Nomination File also refers many times to cabbage.Footnote 115 Although the Nomination File, as already noted, is much more particular and culturally sensitive than the superficiality of the Mediterranean Diet, a similar issue arises here. Can any legal, formal instrument, standard, item, capture the full richness of ICH without reducing and degrading it?

Furthermore, a relevant factor in understanding this incongruity is, perhaps, that Chinese cabbage is the predominant basis for industrial kimchi, and that South Korea is among the world’s top five producers of Chinese cabbage, with the highest per capita production among the major producers.Footnote 116 South Korea also pursues simple trade policies to protect Chinese cabbage production, such as high tariffs and subsidies, within its generally protectionist agricultural policy. This clearly implicates economic and commercial interests, in this case perversely at the expense of cultural and culinary diversity. Protection has its cultural costs, of course – there have indeed been situations in which shortages on cabbage supply have harmed traditional Kimjang.Footnote 117

South Korea has also had recourse to international law to protect its international export and import kimchi trade interests vis-à-vis China,Footnote 118 and this has predominantly related to industrial, wholesale kimchi.Footnote 119 Similarly, South Korea has attempted to promote legal protection through a very broad GI listing of “Korean Kimchi” in at least one bilateral trade agreement (with Chile),Footnote 120 with no notable effect. “Changnyeong Onion” – onions used in some localized kimchi-making, coming from a particular locale in South Korea – has reportedly been listed as a GI in South Korea, and recognized as a GI under the Korea-EU Association Agreement.Footnote 121

Against this backdrop, both the raw economic interests involved and the various international legal experiences and attempts, it is extremely difficult to seriously envision how ICH inscription would protect or promote traditional Kimjang. The only significant measures the inscription refers to are entirely domestically South Korean, and not contingent on the CSICH or on ICH inscription – including subsidized public festivals, school programs, agricultural land allocations in urban areas, research programs, financial support, and more.Footnote 122 Indeed, as evident from the inscription itself, these have all existed in South Korea well before inscription. Moreover, not all these domestic efforts are focused on traditional Kimjang. For example, the World Institute of Kimchi is mainly engaged in research and development of industrial kimchi products, with a view to exports and adjusting the product to foreign market preferences: “[t]he institute’s goal is to develop the domestic kimchi-making industry into the country’s strategic export market[.]”Footnote 123

For good measure, a recent development in UNESCO itself is indicative of the risks of politicization of legalized cultural heritage also in culinary fields. Only two years after the nomination of Kimjang by South Korea, in 2015 the Democratic People’s Republic of Korea (North Korea) countered with a nomination of its own, the Tradition of Kimchi-Making.Footnote 124 At this point in time, it is unclear what the motivation of North Korea is, and whether this competing nomination will trigger debates about high politics, national prestige, cultural “authenticity,” or trade.Footnote 125 It does, however, demonstrate again that the politicization of culinary culture in the institutional and softly legalized setting of the CSICH does not necessarily hold cultural diversity in its sights. Interestingly, the North Korean Nomination File does not mention cabbage even once.

5 Conclusion

The prospects of “safeguarding” cultural items, and the protection and promotion of cultural diversity, are extremely thorny, not only in legal terms, but especially in their political, social, and economic dimensions. There is more than a modicum of hubris – or naïveté – in the claims that international legal constructs such as GIs and ICH can have any structured normative and beneficial effects in this respect. The advent of culinary GIs and ICH, such as in the form of the inscriptions of the Mediterranean Diet and Kimjang, pushes the envelope and tests the internal and external boundaries of these legal concepts and their interactions with cultural diversity.

In this chapter, I have tried to show mainly that despite mounds of sociological, anthropological, and ethnographical knowledge and wisdom relating to culinary traditions, there appears to be little systematic understanding – or justification – for international legal intervention for the sake of cultural diversity in these fields. This has been borne out in the intellectual property area of GIs, and by analogy, extension, and specific analysis seems to apply to the soft, quasi-intellectual property concept of ICH. Indeed, as I have argued, the scope for political and commercial capture, as well as inconsistent, if not potentially negative or at least incoherent, effects on cultural diversity is significant, probably more significant than the benefits that such protection aims to achieve. In this context, the inscription of the Mediterranean Diet, as an early harvest of culinary ICH – and in that respect a genuine achievement for its proponents – seems to be a particularly problematic item, due to its generality and vagueness. The inscription of Kimjang, much more justified on its own cultural merits, is nevertheless problematic as well, given the complex of economic and political considerations relating to kimchi production that ultimately have nothing to do with culture. As with GIs, ICH stakeholders should avoid rushing toward new and additional inscriptions of culinary ICH, and carefully consider the definition and scope of what it is they would wish for.

20 Geographical Indications, Heritage, and Decentralization Policies: The Case of Indonesia

Christoph Antons Footnote *
1 Introduction: Geographical Indications, Development, and Heritage

Over the years, enthusiasts of geographical indication (GI) protection have often asserted its benefits for developing countries. It has been said that GIs can assist with the promotion of rural and regional development;Footnote 1 support the emerging creative industries; help to protect traditional cultural expressions;Footnote 2 ensure that the exploitation of traditional knowledge would recognize sacred beliefs and practices of traditional peoples;Footnote 3 safeguard cultural heritage;Footnote 4 promote environmentally sustainable development;Footnote 5 and indirectly contribute to an increase in tourism.Footnote 6 Such laudable goals have also been mentioned in the Preamble of the Official Government Explanation introducing the relevant Government Regulation in Indonesia in 2007.Footnote 7 The Preamble speaks about using GIs for conserving the environment, empowering natural and human resources in the regions, and preventing migration to the cities by creating opportunities for work in these regions.Footnote 8

Indonesia introduced a completely new Law on Trade Marks and Geographical Indications in November 2016.Footnote 9 The new Law No. 20 of 2016 invalidates the former Trade Marks Act of 2001, including its provisions on GI (Article 107 of Law No.20/2016). However, as happens frequently with new legislation in Indonesia,Footnote 10 Article 106 of the new law leaves all implementing regulations issued for the previous law in force as long as they are not in conflict with the new Law No.20/2016. As Government Regulation No. 51 of 2007 was issued to implement the GI provisions of the previous law (Article 56(9) of Law No. 15 of 2001 on Trade Marks),Footnote 11 this regulation remains in force. The new law of 2016 is similarly upbeat about GI protection in Indonesia. The official government explanation accompanying the draft of the PreambleFootnote 12 stresses the national potential for GIs to become superior commodities in domestic and international trade. The Government explains further that the increasing relevance of GIs is also visible from the fact that they are now included in the title of the law.

Although many developing countries introduced GI protection initially because of TRIPS pressures,Footnote 13 or because they were influenced by EU technical assistance programs,Footnote 14 reports of carefully selected pilot projects sponsored by the United Nations Food and Agriculture Organization (FAO) relating to newly registered GIs have suggested positive results.Footnote 15 Nevertheless, critical observers have pointed out that such positive results cannot be taken for granted. Using the case study of tequila in Mexico, Sarah Bowen finds that “influential actors have manipulated production standards and certification policies in ways that contradict the theoretical concept of a GI and negatively affect the overall quality of tequila.”Footnote 16 Graham Dutfield, discussing the same example, has pointed to the potentially negative impact on biodiversity if production standards require the growing of only one variety at the expense of others.Footnote 17 Using the example of Pisco, a GI claimed by both Peru and Chile and registered by either in various countries, Dutfield also shows the cross-boundary issues that arise if two or more countries claim the same indication on the basis of the same or similar traditions.Footnote 18 Amit Basole, commenting on GIs used for weaving in Banaras, sees a preservationist paradigm at work that “freezes culture.” Instead of adopting a preservationist view centered on the content of knowledge, he proposes a political economy perspective focused on the processes that create and sustain knowledge.Footnote 19 Rosemary Coombe et al. find that the “social imaginary” of GI protection for Rooibos tea in South Africa, for instance, obscures complex historical relationships in an environment “characterized by histories of racialized dispossession under apartheid rule, ongoing contestations over land, and shifting identity politics.”Footnote 20

In this chapter, I build upon these existing critiques and examine GIs in a “contested environment,” with particular focus on Indonesia, i.e., in an environment characterized by Indonesia’s extremely complex decentralization policies. Notably, I will show that decentralization in Indonesia leads to sometimes difficult bargaining processes among the central government, regional governments, and producer communities about the nature and use of intellectual property (IP) laws relating to tradition and heritage, including GIs. I will then examine the GI registration process and show that it is ultimately central government-controlled with relatively limited roles for regional players. The important questions in a country that has encouraged large-scale transmigration for many decades are who will be allowed to operate in the “cultural spaces” that GIs demarcate for purposes of development and to enjoy increased profits from local products as well as how the social and economic benefits will be defined. Decision-makers at the national, regional, and local levels may well have different ideas in this regard. Finally, I will examine in detail two examples of registered GIs and ask to what extent they will be able to fulfill some of the high hopes that the government has with regard to their economic and social benefits.

2 The Context of Indonesia’s Decentralization Policies

I would like to begin with a basic explanation of the context of Indonesian decentralization policies in which regional development and use of GIs have to be viewed.

The Indonesian coat of arms bears the Sanskrit motto Bhineka Tunggal Ika, which means “unity in diversity.” For much of the country’s history, successive governments have had different views of how to find the right balance between the two. During centuries of Dutch colonial rule, the Netherlands East Indies were formed around the main island of Java and already during colonial times it was common to refer to the rest of the Indonesian archipelago as the “outer islands.” After independence, Indonesia recognized Bahasa Indonesia, which originated in Sumatra, as its national language, but politics and administration were centered in Java and the capital Jakarta. This led to tensions and even armed uprisings on some of the “outer islands” during the 1950s. Centralization reached its highpoint during the many years of rule of the autocratic and military-backed Suharto government. During the widespread unrest following the end of Suharto’s rule in 1998, Suharto’s successor Habibie introduced laws on local autonomy that gave the districts substantial powers in administrative and financial matters.Footnote 21 This initiated a move toward decentralization, which coincided with the promotion of decentralization policies and community-based natural resource management in developing countries more generally by many donor agencies and nongovernmental organizations (NGOs).Footnote 22 Although there are generally high expectations with regard to democratization and local empowerment, Vandergeest and Wittayapak have pointed out that it is important to distinguish between administrative and political decentralization. Administrative decentralization shifts power to regional or local bureaucracies that remain upwardly accountable to central headquarters, whereas political decentralization transfers power to authorities who are downwardly accountable to local people.Footnote 23 They point to research on Southeast Asian countries that “decentralization had the effect of increasing state presence, power, and control at the local level, often through making local institutions responsible for monitoring and enforcing regulations in places where states previously had little influence over the everyday use of resources.”Footnote 24

The Indonesian laws on local autonomy were revised in 2004 and completely new legislation was introduced in 2014.Footnote 25 Decentralization was also incorporated into the revised Indonesian Constitution in Chapter VI on Regional Government.Footnote 26 Interestingly and unusually by international standards, Indonesia undertook its efforts at decentralization as a unitary and not as a federated state.Footnote 27 The reasons for this approach are to be found in history. A struggle for independence against the returning Dutch after the end of Japanese occupation in World War II ended with the formal recognition of a federated “United States of Indonesia” by the Netherlands. However, Dutch influence and interference in the affairs of some of the states brought a swift end to this federated structure barely nine months later.Footnote 28 The Indonesian political elite has been deeply distrustful of federalism ever since.Footnote 29

As a consequence of decentralization, Article 18 of the Constitution provides for local government at the respective levels of a province, Kabupaten (regency), and city in accordance with the principles of autonomy and with the task to provide assistance. Again unusual for such constitutional arrangements, but not unusual for Indonesia, Article 18 A refers to further laws for details on how administrative competences, finance, services, natural resources, and other resources are to be divided between the central government and the various regional governments. Article 18B recognizes local governments, but also and importantly the unity of masyarakat hukum adat (customary law communities) and these communities’ traditional rights “as long as they are still in existence and in accordance with the development of society and the principles of the unitary Republic of Indonesia regulated by law.” Although heavily qualified, Article 18B(2) recognizes in principle many traditionally living communities, including forest dwellers that would be referred to as “indigenous peoples” elsewhere.Footnote 30 A similarly qualified recognition is to be found in Article 28I(3) in a newly introduced part on human rights. Accordingly, the cultural identity and rights of traditional communities are respected “in accordance with the development of the times and civilization.”Footnote 31

Obviously, the text of these constitutional provisions leaves much room for discretion and debate. However, it has encouraged the representatives of forest-dwelling “customary law communities,” commonly referred to in Indonesia as adat communities, to fight for their rights to their traditional forest environment under the national Forestry Law and these rights have been recognized in a landmark decision by the Indonesian Constitutional Court in 2012.Footnote 32 To understand GIs in the context of decentralization policies in Indonesia is important because many of them originate from such adat communities, from ethnic communities on the “outer islands,” and from regions that experienced ethnic unrest in the tumultuous years following the end of Suharto’s rule.Footnote 33 Examples of such GIs include Gayo coffee and patchouli oil from Aceh, Kalosi and Toraja coffee from Sulawesi, and Adan Krayan rice from Kalimatan. The long struggle of Aceh against incorporation into the Netherlands East Indies and the string of rebellions since then have been well documented, with Anthony Reid noting that there were only “relatively short periods of the twentieth century during which Aceh was not disturbed by rebellion against Jakarta.”Footnote 34 Coffee plantations were established by the Dutch after they had incorporated Aceh into their colonial empire. Coffee is a relatively recent addition to the livelihood of some of the Gayo people in the highlands of Aceh, which live in communities that have seen a strong influx of transmigrants from Java. Around 2000, there was interethnic violence in the Aceh region involving the Gerakan Merdeka Aceh (Free Aceh Movement) and what John Bowen describes as militias of unclear origins and composition, with some of them being allegedly linked to the Indonesian army.Footnote 35 In Kalimantan, there was widespread violence between local Dayak groups and transmigrants from the island of Madura off the north shore of Java between 1996 and 2001.Footnote 36 As for the Toraja region of Sulawesi, Kathleen Adams reports disputes between locals and the central authorities about the diversion of income from tourism and the question on whether jobs as tour guides should go to locals or to people from elsewhere in Indonesia.Footnote 37 The last mentioned example of a national development initiative using local culture shows that disputes can arise if locals take a more exclusive view of who should benefit from their culture than the government and development planners in Jakarta. GIs, as another national initiative for the marketing of local culture, could raise similar concerns.

Legal academics and social scientists have long been showing the increasing role of governments in discourses about heritage and tradition that are linked to IP rights.Footnote 38 It was only a matter of time before claims to centralized and national control of such rights and the benefits flowing from licensing and royalty collections would encounter counterclaims from local communities, indigenous communities, and regional governments. In Indonesia, this is now becoming visible with the emergence of regional IP laws, which put local governments rather than the central government in charge of granting licenses and collecting royalties. Unsurprisingly, the first set of such local regulations was proclaimed in 2008 in the province of Papua to protect the IP rights of indigenous Papuans.Footnote 39 Papua had remained under Dutch administration until 1962 and was incorporated into Indonesia after a controversial referendum in 1969, a move resisted by the Organisasi Papua Merdeka (Free Papua Organisation) ever since.Footnote 40 Apart from Aceh, it was the only province granted “special autonomy” in 2001.Footnote 41 Richard Chauvel, in his analysis of the negotiations for the special autonomy law, describes the negotiations as a bargaining process between the provincial government and a committee from the central parliament in Jakarta.Footnote 42 The autonomy law makes a distinction between indigenous Papuans and other residents of the province. It defines “indigenous Papuans” as “rumpun ras Melanesia” (i.e., “descending from Melanesian racial stock”), who are members of indigenous tribes or people recognized as indigenous by the Papuan adat communities.Footnote 43 The same definition is also used in the Special Regional Regulation of the Province Papua No. 19 of 2008 on the Protection of Intellectual Property Rights of Indigenous Papuans.Footnote 44 The Regulation extends to “indigenous Papuan GIs” focusing on the “specific indigenous Papuan circumstances” and the specific Papuan character and quality of such GIs.Footnote 45 What this Regulation means in practice for the administration and registration of Papuan GIs is not clear at this stage as none have been successfully registered so far.

Although Papua is a rather special case, other provinces are beginning to draft their own rules and regulations on IP rights. In 2012, West Java issued a Regional Regulation of the Province of West Java No. 5 of 2012 on the Protection of Intellectual Property.Footnote 46 The province of Bangka Belitung is currently drafting a regional regulation on intellectual property. A spokesperson for the regional law and human rights office there has made it clear that the regulation is meant to raise income and to channel royalties, which are currently going to the central government, to the regional government.Footnote 47 Discussions about a regional regulation have also started in East Java, where the Governor has identified 253 potential GIs and 154 indications of origin as “communal intellectual property” owned by the “East Java community.”Footnote 48 Needless to say, the proliferation of local IP regulations could well create inconsistencies among local and national IP laws. In the West Java IP protection regulation, GIs are included, rather confusingly, in a category called hak terkait (neighboring rights),Footnote 49 a term otherwise and elsewhere in this regulation used for neighboring rights in copyright.Footnote 50 Also, the object of GI protection as defined in Article 16 of Regional Regulation No. 5 of 2012 (i.e., the “specification of a production method, the specification of the quality of a product, the name, reputation or other characteristic, which distinguishes [it] from a product of the same kind”) differs from the definition of a GI in the new Trade Marks Act.Footnote 51

Whether local governments are authorized to enact such wide-ranging regulations may be found in Article 70 of the new Trade Marks and Geographical Indications Act and in Law No. 23 of 2014 on Regional Government Administration, which implements the general framework outlined in the Constitution. Article 70 leaves the matter undecided and states merely that guidance, including legal protection, with regards to GIs is the responsibility of the central and/or regional government, depending on their respective authority. Law No. 23 of 2014 reserves a few areas to the national government and includes an Annex stating fields in which both national and regional governments have powers to act. Here, the central government is put in charge of community IP rights in the field of cultureFootnote 52 and of the development of the national creative industries sector using IP rights.Footnote 53 All government levels are responsible, depending on their locations, for the empowerment of adat communities.Footnote 54 The recognition of adat communities, their traditional knowledge, and their related rights are discussed in the section on the environment and is the responsibility of local authorities unless the communities inhabit several provinces, in which case the central government would be responsible.Footnote 55 As will be explained in the following, the associations representing GI users are not normally identical with adat communities, so that the authority of the central government will probably prevail in most cases. In any case, Law No. 10 of 2004 on the Forming of Legislative Provisions envisages a hierarchy of laws in which regional regulations stand at a lower level than national laws and are not valid in so far as they contradict national laws.Footnote 56

How much of the regional regulation of IP will survive such scrutiny remains, therefore, to be seen. What the regulations enacted thus far indicate, however, is that the various levels of government may not always have the same interests when it comes to IP relating to heritage and tradition. Clearly, some regional governments see local culture as a source of income that should benefit their provinces rather than the central government. Also, it is equally clear that some provinces would like to ensure that benefits go first and foremost to locals rather than to, for example, transmigrants. While the central government may be interested in initiating regional development projects, it may also encourage controlled migration into an area and, consistent with the concept of a unitary state, cannot allow for distinctions among different sections of the population. Conversely, regional governments may not share such goals and concerns.

Finally, there are the customary law or adat communities. In spite of the aforementioned landmark decision in their favor, their position in the Indonesian political structure remains weak. Following the reinterpretation of the relevant provision of the Forestry Act by the Constitutional Court, these communities and their rights are recognized “as long as they are still in existence and in accordance with the development of society and the principles of the unitary Republic of Indonesia regulated by law.”Footnote 57 However, these communities are not part of the regional government as defined in Law No. 23 on Regional Government Administration. Instead, they depend on the regional government’s recognition of their rights, which are only mentioned in the context of the protection and management of the environment. If this implies a role of custodians only, communities dissatisfied with this role can take the matter to the courts, as some have done recently in the Constitutional Court Case mentioned above regarding recognition of their traditional rights under the Forestry Act.Footnote 58 However, the large discretionary powers that laws grant the authorities and courts in relation to adat communities provide a strong incentive to work with regional authorities in getting local culture and traditions recognized and promoted.

In the end, much will depend in every single case on the relationship between adat communities and the government and how far locals regard their interests as well represented, their traditions as respected, and benefits from commercialization as fairly distributed. As for GIs, appropriate representation of the various stakeholder interests in the associations managing them will be decisive. Madhavi Sunder fears that within such associations, “traditional leaders may impose their will on members, reifying traditional hierarchies.”Footnote 59 At least in the case of Indonesia, however, associations formed for the protection of GIs are not “traditional.” They are government constructs with varying degrees of involvement of “traditional leaders.” If one examines the registrations of GIs so far, the majority of registering associations simply call themselves “Association for” (Asosiasi) or “Community for the Protection of” (Masyarakat Perlindungan) a particular GI. There is only a single registration referring to an adat community and this is the GI for Adan Krayan rice registered by the Adat Community Association for the Protection of Adan Krayan Rice. This example will be discussed further below. Prior to examining individual case studies, however, it is necessary to look at the structure of the legal framework for GI protection in Indonesia.

3 The Legal Framework for Geographical Indications

So, who is in charge of GIs in Indonesia and what is the legal framework for them? GIs and indications of origin are regulated in Chapters VIII, IX, X, and XI of the Indonesian Trade Marks and Geographical Indications Act of 2016, with further details stated in an implementing Government Regulation No. 51 of 2007 Regarding Geographical Indications. A GI is defined as “a sign, which indicates the geographical origin of a good and/or a product with this origin giving a certain reputation, quality, and characteristic to the good and/or product because of the geographical environment, the human factor or a combination of the two” under Article 1 No. 6 of the Trade Marks and Geographical Indications Act, which overrides a differently worded definition in Article 1 No. 1 of Government Regulation No. 51/2007. The “sign” can be the name of the place or the region or any other sign that indicates the origins of the goods.Footnote 60 The government’s explanation accompanying Article 2(1) of Government Regulation No. 51/2007 gives the following examples: (a) the word “Minang” indicates that a good’s origin is West Sumatra; and (b) the picture of a Toraja adat house indicates that a good comes from the Toraja region in South Sulawesi.

GIs can be used for goods obtained from nature, agricultural goods, manufactured products, crafts, or other goods.Footnote 61 The 2007 Government Regulation foresees that, once registered, GIs can no longer become genericFootnote 62 and that this protection does not extend to indications that have become generic in the past and prior to registration.Footnote 63 This reason for not registering a GI has now been left out in Article 56 of the new Trade Marks and Geographical Indications Act and Article 56, therefore, overrides Article 3(d) Government Regulation No. 51/2007.

The frequent use of Indonesian place names abroad could be one of the reasons for this change. The government’s explanation to the relevant Article 3(d) of Government Regulation No. 51/2007 gives examples of the names of fruits that have been linked to certain islands and have now become commonly known in Indonesia (e.g., pisang Ambon (Ambon banana) and jeruk Bali (Bali grapefruit)). Incidentally, pisang Ambon is also known outside of Indonesia as a liqueur manufactured in the Netherlands.Footnote 64 However, it is not the only Indonesian place name registered in the Netherlands. Gayo coffee producers from Aceh found to their dismay that the term “Gayo” was trademark-registered by a coffee-trading company in the Netherlands.Footnote 65 If such place names are in the future no longer regarded as generic, bona fide users or owners of trademarks using the name may in the future have to rely on Article 68(1), (2) Trade Marks and Geographical Indications Act, which grants them a 2-year grace period to phase out the infringing use.

Other reasons that prevent registration are listed in Article 56 of the Trade Marks and Geographical Indications Act. Accordingly, GI registration will be refused if it conflicts with the state ideology, legal provisions, morality, religion, ethics, and the public order.Footnote 66 The state ideology of Indonesia is Pancasila. It consists of five broad principles, initially pronounced by Indonesia’s first President Sukarno, and enshrined in the preamble of the Indonesian Constitution of 1945. The five principles are belief in a supreme god; just and civilized humanity; Indonesian unity; democracy guided by the wisdom of consultation and representation; and social justice for the whole of the Indonesian people.Footnote 67 Pancasila also informs the interpretation of “religion” in this context. It prescribes religious tolerance as far as the major religions are concerned, while animist belief systems are not officially recognized.Footnote 68 In accordance with a similar provision in the previous Trade Marks Act and the relevant Government Explanation, “religious morality” would only become of concern in exceptional cases where religious symbolism is used in an insulting and insensitive manner.Footnote 69 The question of disturbance of the “public order” has, in the past, occasionally been used in cases of consumer confusion about trademarks, especially in relation to the geographical origin of a product.Footnote 70 This interpretation is no longer relevant after the introduction of GIs and the prohibition in the Trade Marks Act to register GI-protected signs as trademarks.Footnote 71 Consumer confusion relating to the reputation, quality, characteristics, origin, production process, and/or use of the goods also prevents registration of a GI according to Article 56(1)b. Trade Marks and Geographical Indications Act.Footnote 72 A further obstacle to GI registration is if the geographical name is already used as the name for a plant variety as indicated in Article 56(1) c. Trade Marks and Geographical Indications Act, unless there is an addition of comparable words which indicates that there exists a geographical indication of the same kind. Further reasons that lead to an application being declined are when the content of a document describing the GI cannot be verified (Article 56(2)a.) and when the indication to be registered is substantially identical with the registered one (Article 56(2)b.).

The Act and Regulation also mention the applicants and principal right holders under the legislation. According to the Preamble to the Government Explanation on Government Regulation No. 51 of 2007, these parties are the local community groups where the goods originate and who are competent to maintain, defend, and use a GI in connection with their businesses and/or enterprises.Footnote 73 Article 53(3) of the Trade Marks and Geographical Indications Act narrows this wide scope down to two types of organizations: organizations representing the communities in production areas; and the local government at provincial, district, or city level. According to the government explanation accompanying Article 53(3)a. typical representative organisations are producer associations, cooperations, and “communities for the protection of geographical indications.” Of the thirty-nine GIs registered in the GI registry so far,Footnote 74 three (Champagne, Pisco, and Parmigiano Reggiano) were registered by foreign organizations and one (Muntok White Pepper) directly by a government agency.Footnote 75

The remaining GIs were registered by various organizations representing the communities in production areas referred to as “communities,” “associations,” “community forums,” or “networks” for GI protection with widely varying membership.Footnote 76 According to Article 5(3) of Government Regulation No. 51/2007, and the accompanying government explanation, membership should include local cultivators of natural resources, producers of agricultural goods, crafts or industrial goods, or traders selling such goods.Footnote 77 Article 53(3) of the Trade Marks and Geographical Indications Act speaks of communities that work with goods and/or products in the form of natural resources, handicrafts or industrial products. According to the government explanation, the latter term includes any raw material transformed into goods and mentions as examples typical textiles from the provinces of Bali (Tenun Gringsing) and East Nusa Tenggara (Tenun Sikka). “Natural resouces” is given a very wide interpretation in the government explanation and includes not just animals, plants, and microorganisms, but also oil, natural gas, certain types of metal, water, and soil.

In practice, it seems that in many cases the initiative to set up such an association comes from the local government, with government leaders at the provincial and regency levels being involved in the leadership of the association or in the roles of pembina (senior members), penasehat (advisers), or pengawas (supervisors). Other members not immediately involved in the production or trading can be lawyers, university experts, or members of institutions for skills training.Footnote 78

The executive committee of such associations is usually formed by decree of the local government.Footnote 79 It is usually authorized to draft the buku persyaratan (Book of rules and regulations), which accompanies the application for registration.Footnote 80 In the new Trade Marks and Geographical Indications Act it is referred to as a document describing the GI (Dokumen Deskripsi Indikasi Geografis).Footnote 81 This book specifies all the details about the good, what is special about it, as well as the logo that will be used for it.Footnote 82 It also contains an explanation about the territory that the GI relates to and the territorial borders. This explanation, however, must be endorsed by a government agency in the relevant field of production in a recommendation letter. Other important tasks of committees of the associations at the local level include the standardization of products, supervision of training and education, certification that producers using the GI have the necessary skills, and certification and control of the materials involved in the production process.Footnote 83

The ultimate decision about the appropriateness of the local regulations rests with a powerful Tim Ahli Indikasi Geografis (Expert Team for Geographical Indications) in Jakarta, which is appointed by the Minister of Justice.Footnote 84 When the first Expert Team was appointed in 2008, it included central government officials from various departments, from the Directorate General of Intellectual Property Rights (DGIP), and members of relevant research institutes.Footnote 85 In the future, it will comprise a representative of the Minister, respresentatives of the Ministries of agriculture, industry, trade and/or other related Ministries, respresentatives of the supervisory and quality assurance bodies, and other experts.Footnote 86 An Expert Team like this is supported by a Technical Evaluation Team.Footnote 87 What was particularly surprising about the previous regulation was the lengthy period that the Expert Team was allowed to take of up to two years for a decision on a GI application.Footnote 88 The new Trade Marks and Geographical Indications Act now brings the time table for the substantive examination into accordance with the much tighter framework of 150 days of the trademarks examination process by referring to Arts. 23 to 26 Trade Marks and Geographical Indications Act.Footnote 89 The new law also foresees a new Ministerial Regulation regarding the details of the registration process of GIs and the various expert teams,Footnote 90 which may finally replace Government Regulation No. 51/2007.

The central and regional levels of government also become involved in monitoring the use of the GI,Footnote 91 but the wider society, including communities and other interested parties, can also become involved.Footnote 92 Producers and producer organisations can also oppose registrations,Footnote 93 sue violators in the Commercial Court for damages, ceasing of the infringing activities as well as destruction of relevant labels and apply for an injunction to stop the infringing activities.Footnote 94 Article 18 of Government Regulation No. 51/2007 further offers a claim for deletion of an infringing registration.

4 The Case Studies of Adan Krayan Rice and Jepara Furniture

The significance of adat communities was discussed earlier. There are currently thirty-nine registered GIs in Indonesia, with most of them registered for agricultural products. One of these has been registered by the Asosiasi Masyarakat Adat Perlindungan Beras Krayan (Customary Community Association for the Protection of Adan Krayan Rice). This rice comes from the Krayan region of the province of North Kalimantan. The customary community in question is one of the many sub-groups of people that outsiders collectively refer to as the Dayak tribes,Footnote 95 who live on the island of Borneo, and are often the majority population in the island’s interior. Those living in the Krayan region refer to themselves as Lundayeh, which means “people of the interior.”Footnote 96 Like many other tribal population groups, they are spread over a fairly large territory and related groups are to be found in the Indonesian provinces of East and North Kalimantan as well as across the border in the states of Sabah and Sarawak in the Malaysian part of Borneo, where they are called Lun Bawang (people of the place).Footnote 97 The Kelabit people are another related group in the north-east of Sarawak who grow the same type of rice.Footnote 98 According to Cristina Eghenter, it is a two-hour motorcycle ride from the village of Long Bawan in Indonesia to the Kelalan Valley in Malaysia and “[f]or centuries this border has done little to divide communities and families on its two sides.”Footnote 99 Ardhana et al. point out that “[t]hese people, while living in two different countries, share a common border and are bound to one another by ties of ethnicity, language, kinship, religion and economics” and are “linguistically and culturally the same.”Footnote 100

The people in this region practice a system of wet rice cultivation, which the Lundayeh call Lati’ba. It involves a combination of irrigation techniques, buffalos to soften the land and fertilize the soil with their waste, and bamboo to bind the soil and use as construction material for water pipes and fences.Footnote 101 The resulting organic rice comes in white, red, and black varieties and is famous for its quality and taste.Footnote 102 It is known as “Bario rice” in Malaysia and as “Adan Krayan rice” in Indonesia. However, while communities in Malaysia have road connections to major markets to sell their surplus rice, the Lundayeh on the Indonesian side of the border are well connected to the nearest village in Malaysia but need expensive air transport to reach the nearest provincial capitals in Indonesia.Footnote 103 As a result, surplus Adan Krayan rice is sold mainly in Ba Kelalan, the nearest border town in Malaysia.Footnote 104 The Malaysian side allows border trade to be free of customs duties only in this border area so that it would not be economically feasible for the Indonesians to circumvent the traders in the town by selling further inland.Footnote 105

When a GI for Adan Krayan rice was registered in Indonesia in 2012, the Indonesian press was quick in celebrating the registration as a victory over what they regarded as copycats on the Malaysian side of the border, following several disputes about cultural and IP rights to cultural material in recent years.Footnote 106 What was “temporarily claimed by Malaysia,” as stated in one article, “was now the property of Indonesia.”Footnote 107 The “claiming by Malaysia” referred to a GI registration for Bario rice in Malaysia in 2008 by the Sarawak Information Technology and Resources Council, a state agency of the government of Sarawak. The same newspaper article also explained that because of their geographical isolation, Adan Krayan people were forced to sell their rice on the Malaysian side of the border. Some local government officials subsequently went as far as to claim in the media that all rice sold on the Malaysian side as “Bario rice” in fact originated in the Krayan region of Indonesia and that the rice could not be grown elsewhere.Footnote 108 Studies of the border trade indeed confirm the economic grip of the Malaysian side over the Indonesian communities but also explain that the rice is grown on both sides of the border, on the Malaysian side not only in Sarawak but also in Sabah. The climate and altitude on both sides of the border are similar, as is the “human factor” of irrigation techniques and the other elements described above as part of the Lati’ba system.Footnote 109 Quite clearly, these techniques are practiced on both sides of the border by these related communities and, consequently, both GIs continue to be used.

In what commentators regard as a further attempt by the government to stop Malaysian claims, the local government of the regency has also registered Adan Krayan as plant variety.Footnote 110 According to Article 7(1) of the Plant Varieties Protection Act,Footnote 111 local varieties are “owned by the community, but controlled by the state.” In the implementing Government Regulation,Footnote 112 local government officers are put in charge of registering them and, accordingly, all local varieties registered since 2005 have been registered by governors of provinces, mayors of towns, and regency officers.Footnote 113 For instance, the Krayan rice varieties were registered in 2006 by the Head of the local Regency of Nunukan.Footnote 114 The Trade Marks and Geographical Indications Act seeks to avoid overlaps between plant variety protection and GIs by stipulating in Article 56(1)c. that a local geographical name registered for a plant variety can no longer be used to register a GI for the same plant, unless further words are used that indicate that it concerns a geographical indication. In the case of Krayan rice, only the white variety is registered in the Plant Variety Register using the term Adan, but with the additional term putih (white).Footnote 115 Also, the Indonesian language has different words for rice in the field (padi) and harvested rice (beras). Thus, the GI is registered for harvested rice and not for the plant and this could be an additional reason why the subsequent GI registration has been allowed in this case.

Although the word “adat” used here is the same as that recognized in Article 18B(2) of the Constitution, the GI Protection Association formed here for the purposes of administering the GI is an organization in the context of the IP legislation and not necessarily identical with the constitutionally recognized “adat law community.” The Heads of the various local adat communities are involved as penasehat (advisers), while the whole association stands under the pelindung (patronage) of the highest local government officials, including the Bupati (government officer in charge of the regency).Footnote 116 In sum, government officials and the population have high hopes for the legal protection of this rice via the registered GI. However, they may be disappointed because the registration in Indonesia does not seem to help much as long as the lack of transportation and market access problems persist. The geographical isolation of the Krayan communities means that these communities have to continue to sell their rice to their main competitors in Malaysia,Footnote 117 and the GI protection cannot allow them to raise prices under such circumstances. With regard to the division of income and responsibilities in the context of decentralization policies, the Krayan region was not affected by the violent clashes between local Dayak groups and transmigrants elsewhere in Kalimantan. Reports indicate in fact that there is outmigration from the area and the relatively small population of non-Lundayeh people is welcome to join the workforce, in particular on the Malaysian side of the border.Footnote 118 Nevertheless, a discourse regarding indigenous IP rights is forming in the central parts of Borneo. This is visible from the main points that a newly formed “Alliance of Indigenous Peoples of the Highlands of Borneo” regards as its mission, which includes the protection of cultural sites, historical sites, and “the collective intellectual property rights of the Indigenous Peoples of the Highlands.”Footnote 119

Of the thirty-nine GIs registered so far, all but one relate to agricultural goods. The only registration for traditional crafts on the list is Jepara furniture, a highly valued and popular traditional type of Javanese furniture produced in the Jepara Regency on the north coast of Java.Footnote 120 This GI is registered by an Association called Jepara Indikasi Geografis Mebel Ukir Jepara (Jepara Geographical Indication for Carved Jepara Furniture). The Executive Committee of this association consists of many government officers at the regency level and representatives from producer associations, artisan centers, and craft schools.Footnote 121 The regency government also forms a committee that evaluates relevant products and recommends producers and artisans that may register as users of the GI. This committee also maintains the quality control of the materials used and checks the qualification of the artisans involved in the production process.Footnote 122

The low number of registrations of craft-related GIs in comparison to those relating to agriculture is surprising in a culturally rich country like Indonesia. One reason for this relatively low interest in GIs in the craft sector could be that the products of the larger producers of Batik and similar craft products are already protected by trademarks that are well known in Indonesia. Hence, while GIs could provide an additional marketing tool for such producers, they are already well served by other parts of the IP system. Another reason could be that the borders of the region of protection are more difficult to establish for cultural products that rely strongly on the skills of people involved in the production rather than on climatic or soil conditions as in agriculture. In the case of Jepara furniture, the GI is supposed to help in competition with not just international furniture producers from countries like China and Vietnam but also other local producers that have been inspired by the success of Jepara furniture but are producing at lower costs.Footnote 123

Again, however, the GI offers only a marketing tool in the competition with low-cost producers elsewhere in Indonesia but does not prevent these producers from producing furniture in Jepara style. Ensuring greater exclusivity by relying on copyright or design registration is not possible with regard to traditional motifs in Indonesia. This is because Indonesian design law requires a “new design,”Footnote 124 while the new Indonesian Copyright Act of 2014 establishes the state as the fictional copyright holder over traditional cultural expressions.Footnote 125

5 Conclusion

GIs have often been discussed in the context of local and rural development and the safeguarding of cultural heritage. This link to rural and regional developments means that an assessment of the impact of GIs in such fields needs to take into account Indonesia’s efforts at decentralizing the political and administrative power structure since 1999. Discussions in this field could become enmeshed in complicated bargaining processes between central and regional authorities, and between different levels of government and local communities about the scope and direction of development projects and the usefulness of GIs in this context. Differences about such directions have occasionally come to the fore on the fringes of the vast Indonesian archipelago in provinces such as Aceh and Papua and on the island of Sulawesi, for example. The decentralization process is now leading to the emergence of regional IP laws, which, in the example of Papua, create different IP rights for Papuans. There is also an emerging indigenous peoples’ movement in other parts of Indonesia, which in some cases wants to see the indigenous peoples’ collective IP rights being protected.

Indonesia’s current GI legislation makes the community organizations representing the GI users the principal right holders. Such community organizations are not to be confused with traditional adat communities. They are usually set up with substantial involvement of local government agencies to administer the GIs and to maintain the quality of the goods for which they are used. Although they have strong supervisory roles at the local level, the ultimate decision about the registration of the GIs and the appropriateness of rules and regulations relating to them is made by an expert team in Jakarta.

The case studies presented in this chapter show widespread hope with regard to GIs at both the community and government levels. They show, however, that the expectations are often exaggerated. GIs are marketing tools and not instruments to exclude competitors at the national or international level. Their effects on heritage and the environment will only become visible in the longer term. In neighboring Malaysia, for example, the success of highland rice has occasionally led to attempts to raise the output by introducing double cropping and inorganic chemical inputs.Footnote 126 In remote and isolated settings, as in the Krayan in Kalimantan, GIs can be of little help if it is too costly to actually reach the target markets and products have to be sold in the markets of competitors. Nevertheless, there are positive assessments of the effect of GIs established elsewhere, such as in Bali. It is further surprising to see that the registration for Jepara furniture is so far the only GI relating to traditional crafts in a country as rich in traditional culture as Indonesia. Perhaps the reason is that the larger commercial players in industries such as Batik are already well served by other parts of the IP system. Nevertheless, the GI for Jepara furniture could prove advantageous for Jepara producers in differentiating their products from their numerous competitors.

21 When Geographical Indications Meet Intangible Cultural Heritage: The New Japanese Act on Geographical Indications

Steven Van Uytsel Footnote *
1 Introduction

‘Some scholars have begun to acknowledge the symmetries between formal recognition as GI [geographical indications] and as ICH [intangible cultural heritage]’,Footnote 1 Dev Gangjee reports in his paper Geographical Indications and Cultural Rights: The Intangible Cultural Heritage Connection?Footnote 2 Gangjee then tells us that ‘Brazilian researchers have identified the strategic potential for GI protection for the clay pots of Goiabeiras, from the Brazilian state of Espirito Santo’.Footnote 3 Subsequently, not only did Brazil formally recognize these pots under their intangible cultural heritage (ICH) laws, but also registered it as a geographical indication (GI). The idea behind this double recognition was to boost the marketing of this ICH and, if necessary, provide ‘protection in the international markets’.Footnote 4

The Brazilian example shows that GIs are not necessarily restricted to agricultural products. The extension of the scope of GIs beyond strictly agricultural products is the subject of intensive research.Footnote 5 In fact, several countries, such as Japan, have already taken the step to adopt legislation with a broad protective scope for GIs.Footnote 6 The Japanese Parliament – the Diet – has amended what is regarded as ‘the’ Geographical Indications Act (GI Act) of Japan,Footnote 7 the Tokutei Norin Suisan Butsu to no Meisho no Hogo ni Kansuru Horitsu (Act for the Protection of the Names of Designated Agricultural, Forestry and Fishery Products and Foodstuffs) (GI Act),Footnote 8 to include derivatives of agricultural productsFootnote 9 (e.g., Japanese lacquer, an organic substance made from the sap of the urushi tree).

The extended scope of protection for ‘non-edible agricultural, fishery or forestry products and products manufactured or processed using agricultural, forestry and fishery products’Footnote 10 opens the discussion of applying the GI Act to ICH, as Brazil already has. Because this is already a reality, the idea cannot simply be dismissed with arguments that GIs are not suitable for protecting ICH. It does not matter that the reasoning behind such arguments is valuable; there has to be some guidance for communities – the holders of ICH – about the possible hidden dangers of applying for a GI in relation to products based on ICH.

This chapter is structured as follows. Section 2 will introduce that the debate on GIs and ICH has mainly two opposing views on the role GIs can play for ICH. By unveiling the scope of the new Japanese GI Act, the section will show that part of the debate has become obsolete because, in reality, GIs could sometimes overlap with ICH. Section 3 will describe in detail the conceptualization of the new Japanese GI Act. This will pave the way for further analysis in Section 4 of the perils and promises that the extension of the GI Act has on ICH. In conclusion, Section 5 will hold that although the GI Act extends to ICH, holders of ICH should still be careful when they seek to register products that incorporate their ICH as part of the GI.

2 Geographical Indications and Intangible Cultural Heritage: The Japanese Geographical Indications Act

Without denying the existence of sophisticated studies,Footnote 11 the academic debate on the use of GIs in relation to ICH is divided.Footnote 12 On the one hand, scholars have defended the vision that GIs and ICH are two worlds apart.Footnote 13 On the other hand, scholars have opined that GIs could have a positive contribution to ICH.Footnote 14 These two visions probably emerged from the fact that GIs and ICH have ‘their focus on old creativity and community ownership, rather than new knowledge and individual ownership’.Footnote 15

Among these debating scholars, it is not only possible to distinguish two different views – one stating that GIs and ICH are two worlds apart, and one arguing in favour of using GIs to safeguard ICH – but it is also possible to discern the two distinct approaches to support each view. One approach focuses on the definition of GIs and ICH to argument either for or against a supportive role.Footnote 16 The other approach places emphasis on whether a GI could, in practice, mean something for ICH in order to conclude in favour, or disfavour, of a supportive role.Footnote 17

Reaching different outcomes for a similar question may lead to the conclusion that there is confusion on the substantive matter. But one could attempt to disentangle the different understandings and bring clarity in the confusion: it could be argued that GIs have a different understanding of the collectivity concept.Footnote 18 However, that does not mean that the holders of ICH are excluded from using the ICH just because a GI has been attached to a product produced by this heritage. In the same way, ICH may not have a monopoly right,Footnote 19 but that does not necessarily mean that GIs are attributing a monopoly right to it. In fact, it is possible that a GI may not permanently preserve ICH, but that would equally deny the very nature of ICH. Theoretical statements made on the indirect support of GIs for ICH risk falling down a slippery slope if they are not supported by empirical evidence.Footnote 20

However, any attempt to achieve uniformity in the discussion on GIs and ICH may be obsolete. The reality is that legislators have created GI regimes that allow the registration of non-edible products. Japan, be it in a limited way, is one such example. The Japanese Diet passed the GI Act in 2014Footnote 21 and has been operating under the supervision of the Ministry of Agriculture, Forestry and Fishery (MAFF) since 1 June 2015.Footnote 22

MAFF being in charge of operating the GI Act (which may be explained by the fact that the agricultural sector wanted an extra layer of protection in place given the ongoing negotiations for the Trans-Pacific Partnership Agreement (TPPA))Footnote 23 has an impact on the definition of products eligible for a GI. Only products and foodstuffs that relate to agriculture, forestry, and fishery are within the protective scope of the GI Act.Footnote 24 However, the legislator did not limit the scope to only edible or drinkable agricultural, forestry, or fishery products and foodstuffs. Instead, it was decided that protection would also extend to non-edible manufactured or processed agricultural, forestry, and fishery products.

Article 2 of the GI Act enables the designation of the following products with a GI:

  1. (1) Edible agricultural, forestry, and fishery products

  2. (2) Food and beverages

  3. (3) Non-edible agricultural, forestry, and fishery products

  4. (4) Products manufactured or processed using agricultural, forestry, and fishery products.Footnote 25

In the same Article, we see that alcohol, pharmaceuticals, quasi-pharmaceutical products, cosmetics, and regenerative medicine are excluded from the list of products that could be categorized as agricultural, forestry, and fishery products. Alcoholic drinks, such as sake, shochu, wine, or spirits, can obtain a GI under the Act Concerning Liquor Business Associations and Measures for Securing Revenue from Liquor Tax.Footnote 26

However, eggs, vegetables, fruits, seafood, milk, or eggs can be categorized under the first section of Article 2 of the GI Act,Footnote 27 and bread, tofu, olive oil, soft drinks, or prepared foodFootnote 28 under the second section. A Cabinet Order further explains sections 3 and 4 of Article 2 of the GI Act. MAFF categorizes ornamental plants, industrial crops, ornamental fish, and pearls under non-edible agricultural, forestry, and fishery products.Footnote 29 Products manufactured or processed using agricultural, forestry, and fishery products include feed (limited to things manufactured or processed from agricultural, forestry, or fishery products as raw produce or as ingredients), lacquer, bamboo material, essential oil, charcoal, timber, tatami facing, and raw silk.Footnote 30

By including manufactured or processed products, the GI Act is embracing know-how, skills, and practices necessary for transforming agricultural, forestry, and fishery products into other products. These know-how, skills, and practices could have developed in response to the external environment and have since been passed down from generation to generation. Thus, they have been recognized as part of the identity of the beholders. Moreover, such know-how, skills, and practices constitute craftsmanship, which is also recognized as a category of ICH internationallyFootnote 31 and in Japan.Footnote 32 Holders of such an ICH, whether or not recognized under any of the ICH regimes, should therefore carefully consider the regime that each jurisdiction has for GIs before filing an application. The next section explains how the GI regime is implemented in Japan.

3 The Process towards Obtaining a Geographical Indication in Japan
3.1 Registering a Geographical Indication

In order for agricultural, forestry, and fishery products, and foodstuffs to be eligible for a GI, they first need to be identifiable based on location,Footnote 33 quality, or reputation linked to that location.Footnote 34 If producers or processors of agricultural, forestry, and fishery products think that their products fulfil these criteria, they can form an association of producers.Footnote 35

An association of producers is in principle composed of members who can be, but are not limited to,Footnote 36 the direct producers of the agricultural, forestry, and fishery produce. If the association is organized as a legal person, a representative or a manager has to be appointed. The association has multiple tasks: first, it has the responsibility of applying for the GI to MAFF and therefore has to prepare all the necessary documents. Second, once a GI registration has been granted, the association is responsible for the management and control of the production processes described in the product specification (as filed in the application).

Once the association of producers has been formed, it can proceed to file an application with MAFF for a GI.Footnote 37 The application needs to contain the following information:Footnote 38

  1. (1) Name and address of the association of producers and its representative

  2. (2) Classification of the agricultural, forestry, or fishery product

  3. (3) Name of the agricultural, forestry, or fishery product

  4. (4) Region of the agricultural, forestry, or fishery product

  5. (5) Distinct characteristic of the agricultural, forestry, or fishery product (shape, taste, etc.)

  6. (6) Method of production of the agricultural, forestry, or fishery product.

This list of requirements can be expanded by MAFF to include other necessary information.Footnote 39 The producer association must also submit detailed product specifications and quality-control guidelines together with the application form.Footnote 40 These guidelines should specify how the group will manage the production process. Since the specification of the product is supposed to be done within the specified community, the local producers or processors who want the recognition of their products as GIs will be consulted.

Once the GI application is submitted, MAFF will publish the application on a dedicated website.Footnote 41 Subsequently, for a period of three months thereafter, any person may submit an opinion regarding the application to MAFF.Footnote 42 The opinions are then forwarded to the applying association.Footnote 43

After the three months, MAFF must consult experts (persons with specialized knowledge and experience) to see whether the application should be rejected under one of the categories listed in the GI Act.Footnote 44 The experts will also be given the opinions expressed during the three-month public notice period.Footnote 45 If the experts deem it necessary, they can also directly consult the stakeholders.Footnote 46 In the process of formulating their opinion, the experts have a duty of confidentiality regarding the information they have obtained. Furthermore, they should not use this information fraudulently.Footnote 47 If the experts’ screening process does not reveal any reason to reject the application, MAFF will proceed to register the GI,Footnote 48 inform the applicant of its successful registration,Footnote 49 and notify the public by posting it on a designated MAFF website.Footnote 50

3.2 Refusal of an Application for a Geographical Indication

There are several reasons why a GI application may be denied. The main reasons can be divided into the following categories: the nature or behaviour of the applicant,Footnote 51 the quality-control guidelines,Footnote 52 the nature of the product,Footnote 53 and the name of the product.Footnote 54

A prospective applicant may have to wait two years before applying again if his organization’s (association of producers) GI had previously been cancelled for any of the following reasons:Footnote 55

  1. (1) the association of producers no longer meet the requirements of being an association of producers;

  2. (2) the association of producers has disobeyed an order of MAFF; or

  3. (3) the association of producers has submitted an application by unlawful means.

Next, quality-control guidelines are an important part of the application. They should stipulate how the organization plans to ensure that the association’s members comply with the methods of production described in the application.Footnote 56 Registration may be refused if the guidelines are insufficient to fairly ensure compliance with the stipulated methods of production.Footnote 57 Equally, if the organization does not prove to have enough financial or technical ability to maintain quality control, MAFF will refuse the application.Footnote 58

MAFF will also refuse a GI application if the products do not meet the definition of the designated agricultural, forestry, and fishery products, and foodstuffs.Footnote 59 This has two aspects. Items that fall outside the definition of agricultural, forestry, and fishery products, and foodstuffs in Article 2(1) may be refused application.Footnote 60 Another basis for refusal is the lack of a geographic link, specific quality, reputation, or other characteristic that is attributable to the location in question.Footnote 61

Finally, the MAFF may refuse an application if the name of the product is a generic term,Footnote 62 or if it is identical or similar to a registered trademark.Footnote 63 However, it is possible that the owner of a registered trademark, or an authorized user, could have applied for GI recognition.Footnote 64 In such a case, the name will be protected under both the trademark law and the GI Act.

3.3 Amendments to a Geographical Indication Registration

In Japan, the terms of registration of a GI are not necessarily permanently fixed. Even though it is compulsory to submit a description of the production process and to implement quality-control guidelines to ensure compliance, the GI Act gives the association of producers the opportunity to revise their registration.Footnote 65 The process of amending a GI’s registration is, just like the registration process itself, a time-consuming one under the supervision of MAFF. The amendments may be related to either the eligibility of the association of producersFootnote 66 or the application documents.Footnote 67

The association of producers in charge of checking for compliance with the quality-control guidelines can apply to add another association of producers.Footnote 68 This application requires the name and address of the added association of producers and its representative.Footnote 69

Amendments to application documents have to be supported by all the associations of producers that have applied for the registration of a GI.Footnote 70 In other words, all associations of producers need to submit a joint application for an amendment. The request for an amendment can relate to the name, the region, the characteristic of the product, the production process, or if MAFF requires extra information.Footnote 71 The application for an amendment needs to mention the registration number and a description of the part that requires amendment.Footnote 72

The procedure for these amendments is mutatis mutandis the same as that for registration. This means that there is a publication of the amendments, an opposition period, and consultation with experts.Footnote 73 The duration for each of these steps is the same as in the original registration.Footnote 74 Once the amendments are approved, MAFF will publish it on its website.Footnote 75

3.4 Cancellation of a Geographical Indication Registration

Besides the cases in which a registration as a GI loses its effects, which is when an association of producers has been dissolved or the quality-control guidelines have been abolished, MAFF may also, ex officio, cancel a registration.Footnote 76 A cancellation can be done for reasons pertaining to the association of producers,Footnote 77 the information in the application for registration,Footnote 78 or the product name.Footnote 79

First, an association of producers is meant to be an organization that groups producers, processors, or brand organizations.Footnote 80 Moreover, the organization is required to accept members on fair conditions comparable with that applicable to current members.Footnote 81 Thus, no legitimate candidate should be refused participation. A violation of any of these conditions means that an ‘association of producers’ is not in compliance with the definition of an association of producers.Footnote 82 Because of this, MAFF could cancel the registered GI.Footnote 83

Second, an association of producers has several obligations. Members of an association of producers have the right to use the GI for the registered products. But the flipside of the coin is the obligation not to use the GI for products that are similar to the registered product.Footnote 84 The use of designated symbol for a GI is allowed, but the use of a similar symbol is forbidden.Footnote 85 Any other use not described in the previous two examples is caught by a general obligation to refrain from any unlawful use of the GI.Footnote 86 If any of these obligations are violated, MAFF is entitled to cancel the registration.Footnote 87

Quality control is an essential element for obtaining a GI registration and maintaining the registration. Therefore, the association of producers are obligated to implement the best guidelines to ensure that the quality of GI products is upheld up to the expectations of the consumers and as indicated in the product specification. This requires guidelines that ensure compliance with the method of production, that there is sufficient financial capacity to implement the guidelines, and competent technical ability to carry out the required measures.Footnote 88 If any of these are not present, MAFF has the right to cancel the registration because the ‘authenticity’ of the product may be compromised.Footnote 89

Lastly, MAFF can also cancel a GI registration if the description in the application regarding the origin and characteristics of the product are inaccurate or false.Footnote 90 MAFF has a similar right if the product no longer originates from a specific region, or if the quality, reputation, or other characteristics essentially attributable to its geographical origin cease to exist.Footnote 91 The registration will also be cancelled if the registered name of a designated product has become a generic term.Footnote 92

4 The Geographical Indications Act and Intangible Cultural Heritage
4.1 Positioning Intangible Cultural Heritage within the Geographical Indications Act

Since he came to power in 2012, Prime Minister Abe has emphasized achieving economic growth – by a system often referred to as ‘Abenomics’.Footnote 93 Since the revitalization of the agricultural sector fits within this economic strategy,Footnote 94 a system of GIs for agricultural, forestry, and fishery products was implemented to facilitate this revitalization.Footnote 95

In particular, MAFF has supported that GIs can contribute to this revitalization in two different ways. First, GIs will enable product differentiation based upon the GI name and the branding can be associated with the GI name. This, together with quality assurance that is embodied in GI-denominated products, should lead to higher prices for GI products. In turn, rural villages will reap the benefits of these higher prices, and thus these villages will be economically revitalized.Footnote 96 Second, by highlighting the truly Japanese origin of local produce, GIs will make the products more attractive for foreign consumers and the interest of these consumers for Japanese products will increase, therefore spurring the export of Japanese agricultural, forestry, and fishery products, and foodstuffs.Footnote 97

In this context, however, consumer protection only enters the picture as an indirect consequence of the quality-control requirement that GI producers have to fulfil as part of the GI specification. Due to quality control, only products that abide with the predetermined quality standards reach the market. Still, the requirement that GI producers have to guarantee a certain product quality and exert quality control is, according to MAFF, beneficial to consumers.Footnote 98

Moreover, ICH is not mentioned by MAFF as one of the goals of the GI Act, except for the assistance to inheriting traditional food culture.Footnote 99 Likewise, MAFF does not indicate the importance and the implication for GIs of traditional food, and traditional food culture. Hence, traditional food culture could be relevant in two aspects in the context of GI protection. On the one hand, traditional food culture may relate to traditional techniques of preparing agricultural products into food,Footnote 100 which could be relevant as part of the GI specification and in turn the quality control to which GI products should be subjected as part of the GI Act. On the other hand, traditional food culture could contribute to the success of GI products as it incentivizes maintaining a culture of consuming local produce.Footnote 101

Because of its limited scope, this chapter does not need to assess whether the GI Act will be able to attain the goals identified by MAFF. Also, this chapter cannot address the question of whether the GI Act has underlying unstated goals and whether they could be realized. For the purposes of this chapter, it suffices to point out that economic goals are the most prominent in MAFF’s discourse. Therefore, it is likely that MAFF will gear the operation of the GI Act towards attaining the economic goals without necessarily paying attention to other stakes, such as safeguarding ICH. Furthermore, MAFF is not a ministry that deals with culture and thus has no expertise in this respect. But this lack of expertise could be compensated for by relying on experts who are well versed not only in GIs but also in ICH issues.Footnote 102

Notwithstanding MAFF’s lack of interest or expertise in safeguarding ICH, the broad scope of the GI Act, combined with the necessity to describe the production process, means that ICH can be part of a GI. But when holders of ICH register for a GI, they should consider the problems relating to the association of producers, the authenticity of the production process, and the product specification.

4.2 Association of Producers and Communities

A GI regime is an attractive legal instrument for ICH holders because it is ‘based upon collective traditions and a collective decision-making process’.Footnote 103 The GI Act stipulates that the collective decision-making must occur within the context of an association of producers.Footnote 104 The GI Act leaves open the question of whether or not the association takes the form of a legal person. If the association takes the form of a legal person, it needs to appoint a representative. In the context of ICH, one could argue that the holders of ICH, as a community, could be considered an association, and thus they may be eligible to apply for a GI.

In the context of indigenous communities, Rosemary Coombe, Sarah Ives, and Daniel Huizenga have identified that it will most likely not be difficult for the communities to assume the role of an association of producers.Footnote 105 These communities would usually have already been ‘subjectified’Footnote 106 to this role in their interaction with norms of other discourses, maybe human rights or environmental issues.Footnote 107 These experiences would help them recognize the ‘economic and political opportunities that GI protections afford’.Footnote 108

However, ICH in Japan is not necessarily linked to indigenous communities seeking protection.Footnote 109 Nonetheless, Japan has a relatively old law dealing with ICH. The Law for the Protection of Cultural Property was adopted in 1950.Footnote 110 Under this law, ICH, including traditional craftsmanship, can be designated as important intangible cultural property. Where there has been a designation of important intangible cultural property under this law, the population groupFootnote 111 holding the ICH will have identified itself as a community,Footnote 112 which then can subsume the role of an association of producers.

Even though the population group is considered a community for the purposes of ICH, this community may not necessarily be sufficiently homogenous to agree that a GI registration is mutually beneficial for all.Footnote 113 Coombe, Ives, and Huizinga reflect on the minoritarian bias,Footnote 114 in which a small group of producers, often the wealthy ones, steer the rest towards the registration for a GI.Footnote 115 Thus, this small group may be able to construct the collective organization to suit their demands. Their demands may impact the description of the GI in several ways. For example, the production process could favour the practices of this group. Moreover, the criteria for participation in the collective organization may also be determined during application, possibly creating a burden for future entry.

The risk of a minoritarian bias may be problematic in light of the often-heard critique that a GI creates a monopoly right.Footnote 116 Accordingly, one could argue that the creation of a monopoly right would further strengthen the grip this small group has on the ICH. However, it should be noted that a monopoly right is an indirect consequence of a GI. The ‘monopoly right’ created by a GI is one that mainly delineates who may have an individual ‘entitlement to the collective’.Footnote 117 In other words, the regime is set up to determine the ‘group of qualified individuals who can use the GI for their independent business purposes’.Footnote 118 Therefore, the ‘monopoly right’ does not deprive anyone from using techniques or knowledge that underlie the GI. ICH holders who refuse to join the collective association in applying for a GI will still be able to produce their products, but will be limited in their marketing efforts. Their marketing must not resemble the GI’s marketing, something the GI Act confirms in Article 3(2).

Even if the ICH is not yet designated, a collective association must still be formed. However, the risk associated with this situation is the artificial creation of a communityFootnote 119 or an industry, or by the state driving the formation of the association.Footnote 120 It has been described by Coombe, Ives, and Huizinga that this may have an industrialization effect. They describe this effect in relation to Chucucanas ceramics and Mexican tequila. In the case of ceramics, government interference led to ‘promoting economies of scale and forms of industrialized manufacture that […] seriously damaged the social relations of production which historically sustained egalitarian communities of producers’.Footnote 121 Industry elites working together with the government to nominate tequila as ICH resulted in the ‘introduction of highly industrialized standards and volumes of production which marginalized smaller producers’.Footnote 122

It is difficult to be sure that these problems will not occur in Japan. However, the fact that associations have a long history in JapanFootnote 123 means that many holders of ICH are most likely linked to associations that date back to the late nineteenth or early twentieth centuries (often changing names in the post-war period)Footnote 124 and that were often formed under state guidance to, for example, improve the flow of information and quality control.Footnote 125 A unifying or industrializing effect on the production process – if any – might have happened at the time these associations were formed. But this does not take us away from the fact that the above-described minoritarian biases can be removed in associations that have been operating for decades, especially if the local associations are under the control of a nationwide association.

Moreover, it could be argued that the likelihood of a minoritarian bias or the effect of the industrial elite’s influence will be minor in an environment that allows producers with a pending GI application to participate widely.Footnote 126 The GI Act has only two broad guarantees for having such a participatory role. First, the GI Act requires the formation of an association of producers in order to apply for a GI.Footnote 127 The formation of an association might lead to communication between the various stakeholders, but will not necessarily exclude a minoritarian bias or an industrial elite’s influence. Second, the GI Act provides the possibility of filing complaints against a GI application.Footnote 128 These complaints may express concern over the loss of diversity of ICH. However, MAFF and its experts may not take complaints seriously because the safeguarding of ICH is not its main aim. But ultimately, the loss of diversity is not a reason to refuse the registration of a GI. Nevertheless, it could encourage internal discussion among the producers.Footnote 129

In order to somehow prevent the above-described problems from occurring, producers could turn to the flexibility offered in substantive law provisions.Footnote 130 The GI Act requires a product specification that describes the production process. There is no indication in the law that such a production process should be homogenous among the members of the association of producers.Footnote 131 The application guidelines offer some further insight into this.

First of all, the guidelines indicate that, when dealing with the relevant characteristics for an application, plural criteria can be included.Footnote 132 The application form itself refers to several elements, such as the technical basis, special ingredients, special raw materials, delivery basis or standard, feedstuff, or cultivated breed, that could make up the production process.Footnote 133 The application form indicates that this list of examples is neither exhaustive nor compulsory.Footnote 134 However, neither the guidelines nor the application form indicate whether the plurality points to more than one element or whether that one element could have different varieties. In the latter case, the applicant could explicitly stipulate the differences in the production process.Footnote 135 A more indirect approach would be to not directly mention the differences, but instead stipulate the ‘normally-followed’ production process.Footnote 136 Nevertheless, whether the former or the latter approach is followed, both enable holders of ICH to participate actively in the registration process.

Second, more than one association of producers can be registered to use the GI.Footnote 137 The guidelines stipulate that only one single application form can be submitted, but the product specification needs to be submitted by each respective association.Footnote 138 It is explicitly acknowledged in the guidelines that the respective product specifications can differ from each other.Footnote 139 Since the product specification also has a section on the production process, the differences could be identified there as well. To accommodate these interpretations of the law, MAFF should use application forms that allow for enough flexibility.

Even though the substantive law seems to enable flexibility and thus a broader participation by different holders of ICH, the remaining question is how the controlling institutions – the experts and MAFF – will judge the acceptability of the inclusion of difference in the production process, or of a vague formulation of the production process. Quality control will most likely be the main criterion by which this decision will be made. Vague formulations will make such quality-control assessments difficult and give the producers much leeway to breach the appropriate standards. A detailed formulation will allow for better quality assessment, but it requires a more sophisticated and expensive quality-control mechanism.

While the GI Act may be able to accommodate diversity, we need to reflect on whether the unifying force of a minoritarian bias or industrial elite should be automatically considered as problematic. ICH is a living heritage, prone to change in response to the outside environment.Footnote 140 Thus, it could be questioned whether the application for a GI should necessarily mean the fixation on preserving the diversity of ICH. This issue links to authenticity, a concept often heard within the context of GIs.

4.3 Authenticity of the Production Process and Intangible Cultural Heritage

GIs are often linked to the concept of authenticity. This link stems from the fact that the production process must adhere to what has been described in the application for a GI. In other words, a product is no longer authentic if a different production process, other than the one put forward during the application, is deployed. Non-compliance with the production process, which is most likely ‘inseparably linked to geography’,Footnote 141 could eventually affect the quality of the product that the GI is supposed to represent. This interpretation excludes any form of divergence from the stipulated production process. Therefore, GIs are described as stabilizing a ‘historically validated production process’,Footnote 142 and this runs counter to the characteristic of the living nature of ICH.Footnote 143

After pointing out that other scholars have already indicated that the timeliness of the production process should not be too strongly overstated,Footnote 144 Dev Gangjee provides a way out of the authenticity issue. He posits that as long as the understanding of authenticity refers to a state of antiquity, the concepts of GIs and ICH will not be reconcilable with each other. By shifting the understanding of authenticity to the designation of a ‘strong link with a specific community’,Footnote 145 goods will be authentic if they are produced by what the community considers the appropriate method of production. This allows for a specific community to actively (re-)interpret the intergenerational transmissions of production processes.

Gangjee’s vision on the interpretation of authenticity is not foreign to the recent ICH debate. In his article Intangible Cultural Heritage: The Living Culture of Peoples, Federico Lenzerini argues that authenticity, even though not included in the ICH Convention, could be valuable to ICH.Footnote 146 More specifically, authenticity could guarantee the connection between ICH and the cultural identity of the creators and bearers. Authenticity would be the concept preventing ICH from being used for purposes that the community does not ascribe to. ICH would be authentic if ‘such heritage is constantly tailored to the cultural identity of the communities, groups, and or persons concerned’.Footnote 147

However, suggesting that authenticity should be devoid of the meaning of originality still requires the GI Act and its enforcement structure to suit such an interpretation. As mentioned above, the GI Act provides the possibility for amending the GI registration. One area that could be amended is the description of the production process to give the impression that, in theory at least, a community could apply to amend the registration whenever it deems desirable. If MAFF accepts some flexibility in the formulation of the production process, the change in the production process could be printed just next to the original description of the production process.

In the absence of flexibility, and presuming that a process of change will most likely be gradually initiated by some members of the community, two scenarios could develop. The first is that the more vocal members of the community could change their production process, thereby forcing the others to follow suit. Thus, when less outspoken or minority community members change the production process of the ICH, the more outspoken or the majority members may keep that group in line via the quality-control mechanisms enforced by the association of producers. Whatever the case may be, a strict application of the GI Act could either cause the standardization of ICH or stifle its development.

The second scenario could be that changes to the ICH mentioned in a GI registration may only be recorded with the consent of the association of producers. Therefore, individual members cannot apply for a change in the registration because all the members must be in agreement. There is no role for MAFF to play if there is any disagreement between the members. The best way for MAFF to accommodate the blurry boundaries of ICH is to do away with an overly legalistic application of the GI Act and allow flexibility in the application documents.

4.4 Openness of the Product Specification and Intangible Cultural Heritage

Generally speaking, the product specification must be drawn up before a product may be registered as a GI. In principle, the product specification should concentrate on the ‘product’s unique connection to its particular place of origin’.Footnote 148 Ultimately, the connection to a place is ‘definitional to a GI’.Footnote 149 This means that the legitimacy of a GI can be sustained if ‘weather and topology’Footnote 150 make out the ‘claimed nexus between place and product qualities’.Footnote 151 The GI Act also requires a description of the production process.Footnote 152 The production process – especially when we talk about products made from agricultural, fishery, or forestry products – may well be based on knowledge that the community has gathered in order to make valuable products with what they had on hand.Footnote 153 ICH is formed through years of passing down this knowledge and then transforming it into an identifier for that community.Footnote 154 Thus, it is likely that this ICH also characterizes the unique qualities of the product.

The process of describing ICH is also found in the ICH discourse. The ICH Convention, for example, imposes an obligation on its member states to create one or more inventories of their ICH.Footnote 155 But there is one difference between the ICH Convention and the GI Act: the ICH Convention is quite flexible as to what these inventories could mean.Footnote 156 For example, it could be a listing of ICH identified in the member state’s sovereign territory. Within the listing, separate categories can be made depending on their local, regional, or national importance. Another listing could be categorized depending on its need for extra safeguards. The inventory could also be a detailed description of what the ICH is. In other words, the ICH Convention leaves enough freedom to the member states to create inventories that cater to the specific needs of the communities.Footnote 157

In the previous sections, speculation was made about the flexibility of the GI Act to accommodate diversity and change. The registration guidelines are much more direct about the inclusion of elements that could be considered as trade secrets or know-how of the community. The guidelines mention that the applicant should think carefully about including such secrets or know-how in the application documents, as these documents are generally made public.Footnote 158 The only limitation that the guidelines put to this flexibility is that the trade secret or the know-how should not be directly related to the product’s characteristics.Footnote 159 MAFF and its experts have a margin of appreciation as to what aspects of the production process should be revealed. But, as Hughes mentions in one of his studies, what is the point of a GI when something essentially relevant to characterize the product is not part of the description made to obtain the registration?Footnote 160

5 Conclusion

With the adoption of the GI Act, Japan has left the negative protection system for GIs. The GI Act applies not only to edible agricultural, forestry, and fishery products but also to manufactured and processed agricultural, forestry, and fishery products. Therefore, in an application for a GI, the production process must be adequately described, and a control mechanism checking for compliance with the production process must be established. The combination of these two elements means that know-how, skills, and practices will also be protected. Such know-how, skills, and practices can also fulfil the definition of ICH such that GIs and ICH could coexist under the GI Act.

Bringing GIs and intangible heritage together in one legal framework is controversial. However, it is unavoidable and must be dealt with. Through a flexible interpretation of the substantive law relating to the production process; allowing amendments to the original application process; and a choice for applicants to decide what to include in the product specification, the GI Act could potentially accommodate difficult issues such as minoritarian biases, industrial elites, authenticity, or openness of product specification. The only question to be answered in practice is the extent to which MAFF will comply with these suggestions in order to contribute to the safeguarding of ICH.


18 The Geographical Indication Act 2013: Protection of Traditional Knowledge in Bangladesh with Special Reference to Jamdani

* Senior Lecturer, Department of Law, East West Univrsity.

1 See generally Steve Stern, Are GIs IP?, 29 Eur. Intell. Prop. Rev. 3942 (2007).

2 Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299 [hereinafter TRIPS].

3 Elizabeth Barham, Translating Terroir: The Global Challenge of French AOC Labeling, 19 J. Rural Stud. 127, 128129 (2003); Irene Calboli, Of Markets, Culture and Terroir: The Unique Economic and Culture Related Benefits of Geographical Indications of Origin, in International Intellectual Property: A Handbook of Contemporary Research 433 (Daniel J. Gervais ed., 2015).

4 TRIPS, supra Footnote note 2, at art. 22.2.

5 See generally N.S. Gopalakrishnan, Prabha S. Nair, & Aravind K. Babu, Exploring the Relationship between Geographical Indications and Traditional Knowledge: An Analysis of the Legal Tools for the Protection of Geographical Indications in Asia (Geneva: International Centre for Trade and Sustainable Development, Working Paper, 2007).

6 The Geographical Indication (Registration and Protection) Act 2013 (Bangladesh) [hereinafter GI Act 2013].

7 Trademarks Act 2009 (Bangladesh).

8 United Nations Educational, Scientific and Cultural Organization (UNESCO), (last visited April 15, 2016). Inscribed in 2013 on the Representative list of the Intangible Cultural Heritage of Humanity.

9 Irene Calboli, Expanding the Protection of Geographical Indications of Origin under TRIPS: “Old” Debates or “New” Opportunity?, 10 Marq. Intell. Prop. L. Rev. 182, 189 (2006).

10 Stacy D. Goldberg, Who Will Raise the White Flag? The Battle between the United States and the European Union over the Protection of Geographical Indications, 22 U. Penn. J. Int’l. L. 107, 109 (2001).

11 Irene Calboli, supra Footnote note 9, at 189; see Paris Convention for the Protection of Industrial Property, March 20, 1883, as revised July 14, 1967, 21 U.S.T. 1583, 828 U.N.T.S. 305 [hereinafter Paris Convention]; Madrid Agreement for the Repression of False or Deceptive Indications of Source on Goods, April 14, 1891, 828 U.N.T.S. 163 [hereinafter Madrid Agreement]; Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, October 31, 1958, as revised July 14, 1967, 923 U.N.T.S. 205 [hereinafter Lisbon Agreement]. In May 2015, a Diplomatic Conference was convened in Geneva, Switzerland, to review the Lisbon Agreement. See WIPO, Diplomatic Conference for the Adoption of a New Act of the Lisbon Agreement – The Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications (2015), The Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, May 20, 2015, WIPO Lex. No. TRT/LISBON/009, available at [hereinafter Geneva Act]. The term “indication of source” is used in the Paris Convention and in the Madrid Agreement, even though the term is not defined in neither agreement. See also David Vivas Eugui, Negotiations on Geographical Indications in the TRIPS Council and Their Effect on the WTO Agricultural Negotiations: Implications for Developing Countries and the Case of Venezuela, 4 J. World Intell. Prop. 703, 704, 705 (2001). Generally, the term “indication of source” does not require that the products have any unique quality, characteristic, or reputation attributable to its place of origin, but nevertheless includes within the definition also the geographical origin of the products. On the other side, Article 2.1 of the Lisbon Agreement defines “appellation of origin” as “the geographical denomination of a country, region, or locality which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.” This definition clarified that products not only have to originate from a specific place but must have the quality and characteristics that are due exclusively or essentially to the geographical environment inclusive of natural and human factors. Mere “reputation” is not sufficient to get protection through “appellations of origin”; specific qualities and characteristics need to be proved in the particular product. They stand for direct geographical names of countries, regions, or localities and any symbols or emblems indirectly signifying geographical origin are not enough. However, Article 2 of the Geneva Act regarding the definition of “appellations of origin and geographical indications” defines “denominations of origin” as “any denomination protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another denomination known as referring to such area, which serves to designate a good as originating in that geographical area, where the quality or characteristics of the good are due exclusively or essentially to the geographical environment, including natural and human factors, and which has given the good its reputation.” The same provision defines “geographical indications” as “any indication protected in the Contracting Party of Origin consisting of or containing the name of a geographical area, or another indication known as referring to such area, which identifies a good as originating in that geographical area, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” Geneva Act, at art. 2(1).

12 See Felix Addor & Alexandra Grazioli, Geographical Indications beyond Wines and Spirits: A Roadmap for a Better Protection for Geographical Indications in the WTO/TRIPS Agreement, 5 J. World Intell. Prop. 865, 868 (2002). The expression “geographical indication” used in TRIPS includes “appellations of origin” but in a wider scope. TRIPS allows “reputation” to be an independent criterion, sufficient to grant protection under the GI regime. TRIPS emphasizes the significance of a geographical area, as opposed to the name of the area, to be eligible for GI protection and requires the applicant to establish a link between the product and its particular characteristics, quality, or reputation attributable to the place of origin of the product. TRIPS does not necessitate that all these conditions should be coexisting. It is sufficient to prove only one of the above conditions. The expression “other characteristics of goods” connotes that the designated goods have some distinctive features from other related products in their characteristics. Natural factor is not the only test for the “indication” to be protected. Indications can qualify for GI protection if quality, reputation, or other characteristics of a product is the contribution of other factors, namely, human factors, quality of the materials, etc. Gopalakrishnan, Nair & Babu, supra Footnote note 5, at 15.

13 TRIPS, supra Footnote note 2, at art. 22.2.

14 TRIPS, supra Footnote note 2, at art. 23.

15 Ritika Banerjee & Mohar Majumdar, In the Mood to Compromise? Extended Protection of Geographical Indications under TRIPS Article 23, 6 J. Intell. Prop. L.& Prac. 657, 659 (2011).

16 Gail E. Evans & Michael Blakeney, The Protection of Geographical Indications after Doha: Quo Vadis?, J. Int’l Econ. L. 575, 578 (2006).

17 TRIPS, supra Footnote note 2, at arts. 22, 24.

18 Marsha A. Echols, Geographical Indications for Foods, TRIPS, and the Doha Development Agenda, 47 J. Afr. L. 199, 208 (2003).

19 TRIPS, supra Footnote note 2, at art. 24.

20 Members “Not Ready to Move Forward Yet” on Wines and Spirits Register Negotiations, World Trade Org. (April 14, 2014),

21 Banerjee & Majumdar, supra Footnote note 15, at 659.

22 See chapters cited supra Section 2.

23 There are 161 members to TRIPS as of April 2015. World Trade Org., List of Members and Observers (last visited May 23, 2016).

24 TRIPS, supra Footnote note 2, at arts. 22.3, 24.5; see also infra Section 4.3.

25 See TRIPS, supra Footnote note 2, at art. 24.

26 GI Act of 2013, supra Footnote note 6.

27 Dev S. Gangjee, Geographical Indications and Cultural Heritage, 4 WIPO J. 92 (2012).

28 See generally Calboli, supra Footnote note 3.

29 Gangjee, supra Footnote note 27, at 92.

30 Massimo Vittori, The International Debate on Geographical Indications (GIs): The Point of View of the Global Coalition of GI Producers-origin, 13 J. World Intell. Prop. 304, 306 (2010).

31 Tomer Broude, Taking “Trade and Culture” Seriously: Geographical Indications and Cultural Protection in the WTO, 26 U. Penn. J. Int’l Econ. L. 623, 627 (2005).

32 Barnum, supra Footnote note 3, at 128–29.

33 In recent years, many Asian countries, such as India, Malaysia, Thailand, and Sri Lanka, have adopted sui generis legislative protection within their domestic legal systems.

34 See generally Gopalakrishnan, Nair, & Babu, supra Footnote note 5.

35 GI registrations listed in this article can be found in the Geographical Indications Registry, published by Intellectual Property India, available at (last visited May 19, 2016). Hyderabad Haleem, Registration No. 132; Sandur Lambani Embroidery, Registration No. 128; Temple Jewellery of Nagercoil, Registration No. 36; Kashmir Walnut Wood Carving, Registration No. 162.

36 Interested parties may bring actions under section 3 of the act without registration. Geographical Indications Act 1999 (Singapore).

38 Dedar Singh Gill & Yvonne Tang, Singapore – Geographical Indications Act 2014 to Enhance Protection for Businesses and Consumers, Coventus Law (June 24, 2014),

39 EU-Singapore Free Trade Agreement, available at

40 Geographical Indications Bill 2014 (Singapore), Part IV §§ 17–20.

41 A.B.M. Hamidul Mishbah, Time to Enact Geographical Indication Act, The Daily Star (December 6, 2012),

42 Responding to Least Developed Countries’ Special Needs in Intellectual Property, World Trade Org. (October 16, 2013),

43 GI Act 2013, supra Footnote note 6.

44 UppadaJamdani Sarees, Registration No. 106 (India).

45 Fazli Mango grown in the district of Malda, Registration No. 96 (India).

46 NakshiKantha, Registration No. 49 (India).

47 India’s stance in registering these products is not judged here as legal or otherwise; rather this chapter focuses on the reaction which came after the registration of the above-named products which may have, to some extent, contributed to the prompt adoption of the GI Act of 2013. Dhaka to Contest India’s GI Claim over Jamdani Sarees, Fazli Mangoes, Business Line (November 30, 2012)

48 GI Act 2013, supra Footnote note 6.

49 Mishbah, supra Footnote note 41; Mahua Zahur, GIs Protection: Where Do We Stand Legally?, The Daily Star(August 5, 2013),

50 GI Act of 2013, supra Footnote note 6, ch. I § 2(9).

52 Section 2(9) of the GI Act of 2013 reads:

[G]eographical indication of goods means any agricultural, natural and manufactured goods having geographical indication that indicates that such goods is originated or manufactured in a country or territory or a locality or region of such country or territory, where a given quality, reputation or other characteristics of such goods is essentially attributable to its geographical origin and in case such goods is manufactured goods one of the activities of either the production, processing or preparation of such goods takes place in such territory, region or locality.

Section 2(8) of the GI Act of 2013 reads: “Goods mean any agricultural or natural goods or goods of handicraft and industry and includes food stuff.”

53 Article 22.2 of TRIPS reads,

In respect of geographical indications, Members shall provide the legal means for interested parties to prevent: (a) the use of any means in the designation and presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good.

TRIPS, supra Footnote note 2, art. 22.2.

54 The term sui generis is not defined in the TRIPS agreement. It literally means “of its own kind” and consists of a set of laws and ways recognized nationally for the protection of intellectual property rights. The definition and implementation of sui generis systems may vary from country to country. Stephen A Hansen & Justin W. VanFleet, Traditional Knowledge and Intellectual Property: A Handbook on Issues and Options for Traditional Knowledge Holders in Protecting Their Intellectual Property and Maintaining Biological Diversity (2003). Many Asian countries have adopted sui generis systems for the protection of geographical indications within their municipal system. For example, see the relevant laws of India, Malaysia, Singapore, Thailand, and Sri Lanka.

55 Some countries protect geographical indications under trademark law as collective marks or certification marks. For example, see the trademark laws of China, Australia, Canada, and the United States of America.

56 See Unfair Competition Prevention Act of Japan 1993.

57 GI Act of 2013, supra Footnote note 6, ch. I § 6(1).

58 Footnote Id., ch. I § 9.

59 Footnote Id., ch. I § 10.

60 Footnote Id., ch. I § 16(2).

61 Footnote Id., ch. I § 16(3)–(4).

62 See Section 18(1) of the Geographical Indication of Goods (Registration and Protection) Act of 1999 (India); see also Section 19(2) of the Geographical Indications Act of 2000 (Malaysia).

63 GI Act of 2013, supra Footnote note 6, ch. I § 18.

64 Footnote Id., ch. I § 19(1).

65 Section 2(16) of the GI Act of 2013 defines homonymous geographical indications as the geographical indications of those goods which have the similar names.

66 TRIPS, supra Footnote note 2, at art. 23.3. This provision provides for the protection of homonymous geographical indications for wines only. In this regard Members shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not mislead. An identical provision is spelled out in section 7 of the GI Act of 2013, but unlike TRIPS, such protection has been extended past wines and spirits and applies to all products.

67 GI Act of 2013, supra Footnote note 6, ch. I § 7.

68 Footnote Id., ch. III § 8, (b), (d).

69 Footnote Id., ch. I § 8(g).

70 TRIPS, supra Footnote note 2, at art. 24.9.

71 GI Act of 2013, supra Footnote note 6, ch. I §§ 13, 14.

72 See details accompanying GI Act of 2013, supra Footnote note 6.

73 Footnote Id., ch. I § 28(1)(a).

74 Footnote Id., ch. I § 28(1)(b).

75 Footnote Id., ch. I § 28(1)(d).

76 Article 21.2 of TRIPS reads, “members shall provide the legal means for interested parties to prevent: … (b) any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).”

77 Section 28 (2) of the GI Act of 2013 defines the term “unfair competition” as any act of competition contrary to honest practices in relation to industrial and commercial matters. The following acts will be considered as unfair competition, namely:

  1. (a) any act of such a nature as to create confusion among the public by any means whatever with the establishment, the goods, the industrial or the commercial activities of the competitor;

  2. (b) false allegation in the course of trade of such a nature as to discredit the establishment, the goods or the industrial or commercial activities, of a competitor;

  3. (c) geographical indications, the use of which in the course of trade is liable to mislead public as to the quantity, the nature, the manufacturing process, the characteristics, the suitability of their purpose, of the goods;

The Paris Convention under article 10bis (3) provides an identical list of activities that constitute unfair competition in connection to GIs.

78 GI Act of 2013, supra Footnote note 6, ch. I § 28(1)(d).

79 TRIPS, supra Footnote note 2, art. 23.1.

80 National treatment is one of the fundamental principles in the international conventions protecting intellectual property. The principle is enshrined in most of the important treaties dealing with intellectual property, namely the Paris Convention, the Rome Convention, the Berne Convention, the Universal Copyright Convention, TRIPS, etc. It means that a treaty member must accord nationals of other member states the same treatment it accords to its own nationals. Ulrich Loewenheim, The Principle of National Treatment in the International Conventions Protecting Intellectual Property, in Patents and Technological Progress in a Globalized World (Straus ed., 2009). Within TRIPS the provision of national treatment is incorporated under Article 3. Article 3(1) provides that “Each member shall accord to the nationals of other members treatment no less favourable than that it accord to its own nationals with regard to the protection of intellectual property …” TRIPS Part I – General Provisions and Basic Principles, World Trade Org., (last visited May 19, 2016).

81 Under WTO Agreements, countries cannot normally discriminate between their trading partners. A member state has to treat all other WTO members equally. This principle is generally known as the “most favoured nation treatment.” This principle has been incorporated in many WTO agreements including GATT, TRIPS, etc. but it is noted that the principle is handled slightly differently in the various instruments. This principle is incorporated in TRIPS Agreement under Article 4. Article 4 provides that “With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to the national of all other members …” Principles of the Trading System, World Trade Org., (last visited May 19, 2016).

82 Article 15(1) of TRIPS defines trademarks as “any sign and any combination of signs capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark.” This definition of trademark necessitates that the distinguishing feature of a sign makes it capable to serve as a trademark, whereas the definition of GIs as stipulated in TRIPS emphasizes the identifying feature of the GI for being so capable. For the consumers, both these distinctive signs serve as source identifiers. Trademark identifies the source in a sense that it indicates the trade source from which the goods come. GI indicates the place of origin of the goods. See Dev S. Gangjee, Quibbling Siblings: Conflicts between Trademarks and Geographical indications, 82 Chicago-Kent L. Rev. 1253, 1254.

83 See Gangjee, supra Footnote note 82.

84 GI Act of 2013, supra Footnote note 6, ch. I § 21(1)(a).

85 Footnote Id., ch. I § 21(1)(b).

86 TRIPS, supra Footnote note 2, at art. 22.3.

87 Article 22.3 of TRIPS reads

A Member shall, ex officio if its legislation so permits or at the request of the interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that member is of such a nature as to mislead the public as to the true place of origin.

88 Section 6 of the Trademark Act 2009 provides that “A trademark shall not be registered in the Register, unless it contains or consists of (d) one or more words … not being … a geographical name..”

89 TRIPS, supra Footnote note 2, art. 24.5.

90 Footnote Id. at art. 24.8.

91 GI Act of 2013, supra Footnote note 6, ch. I § 22.

92 See generally Marion Pannizon, Traditional Knowledge and Geographical Indications: Foundation, Interests and Negotiating Positions, Trade Regulation (National Centre of Competence in Research (NCCR), Working Paper No.2005/1, 2006); Teshager W. Dagne, The Identity of Geographical Indications and Their Relationship to Traditional Knowledge in Intellectual Property Law, 5 WIPO J. 137, 143 (2014).

93 Elizabeth Barham, supra Footnote note 3, at 131.

94 See generally Susy Frankel, The Mismatch of Geographical Indications and Innovative Traditional Knowledge, 29 Prometheus 253 (2011).

95 Traditional Knowledge, World Trade Org., (last visited May 19, 2016).

96 Frankel, supra Footnote note 94, at 6.

97 Dagne, supra Footnote note 92, at 147.

98 Desi Amin, Fashion Designer Gaurang Sets Trend for “Made In Jamdani” Women’s Wear, DesiMag, (last visited May 19, 2016).

99 Chandra Shekhar Saha, Bangladesher Boyon Gourab, Canvas 18 (August 2007).

100 Sayyada R. Ghuznavi, Jamdani: The Legend and the Legacy, in Textile Tradition of Bangladesh 44 (Haque ed., 2006).

101 Muslin is a translucent fabric which was known for its fine quality. It is chronicled in the history as the finest fabric from Bengal. See Ghuznavi, supra Footnote note 100, at 37.

102 Footnote Id. at 44.

103 See Ghuznavi, supra Footnote note 100.

104 Shumon Sengupta, Poetry in Thread: The Jamdani of Dhaka, The Daily Star (April 9, 2011)

105 Saha, supra Footnote note 99, at 19.

106 Ghuznavi, supra Footnote note 100, at 44.

107 Footnote Id. at 48.

108 Saha, supra Footnote note 99, at 20.

109 Ghuznavi, supra Footnote note 100, at 49.

110 Footnote Id. at 56.

111 World Intellectual Property Organization (WIPO), Geographical Indications: An Introduction, 10, WIPO Doc. 952(E).

112 Iftekhar Iqbal, A Research Report on Protection of “Jamdani” as a Geographical Indication in Bangladesh, 2–6 (March 28, 2014), available at This paper was a collaborative initiative of the Centre for Policy Dialogue (CPD) and the National Crafts council of Bangladesh (NCCB). It presented the dialogue on Protecting Geographical Indication Products in the Context of Bangladesh and Way forward.

113 WIPO, supra Footnote note 111, at 9.

114 Gopalakrishnan, Nair & Babu, supra Footnote note 5, at 14.

115 GI Act of 2013, supra Footnote note 6, ch. II §§4–5.

116 The Daily Star, Jamdani Finally Gets Recognition, at 1 (November 19 2016).

117 Department of Patents, Designs and Trade Marks, The Geographical Indication (GI) Journal, Journal No 1, (March 2016).

118 The Daily Star, supra Footnote note 116, at 1.

19 From Chianti to Kimchi: Geographical Indications, Intangible Cultural Heritage, and Their Unsettled Relationship with Cultural Diversity

* Sylvan M. Cohen Chair in Law and Academic Director, Minerva Center for Human Rights, Faculty of Law and Department of International Relations, Hebrew University of Jerusalem. This chapter, with the exception of section IV(b) (on Kimchi-making), builds on and adapts a previously published chapter, Tomer Broude, A Diet Too Far? Intangible Cultural Heritage, Cultural Diversity, and Culinary Practices, in Diversity in Intellectual Property: Identities, Interests, and Intersections 472 (Irene Calboli & Srividhya Ragavan eds., 2015).

1 See Janet Blake, International Cultural Heritage Law (2015); Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Lilian Richieri Hanania ed., 2014); Jingxia Shi, Free Trade and Cultural Diversity in International Law (2013); Cultural Heritage, Cultural Rights, Cultural Diversity: New Developments in In International Law (Silvia Borelli & Federico Lenzerini eds., 2012); Tania Voon, Cultural Products and the World Trade Organization (2007).

2 See Tomer Broude, Taking “Trade and Culture” Seriously: GIs and Cultural Protection in WTO Law, 26 Penn. J. Int’l L. 623 (2005) (providing some examples and critical analysis) [hereinafter Broude, Trade and Culture].

3 See, e.g., E. Wanda George, Intangible Cultural Heritage, Ownership, Copyrights and Tourism, 4 Int’l J. of Culture, Tourism & Hospitality Res. 376 (2010) (discussing potential conflicts with copyright law).

4 See Lucas Lixinski, Intangible Cultural Heritage in International Law 175 (2013) (providing an extensive discussion of intellectual property tools for addressing ICH) [hereinafter Lixinski, Intangible Cultural Heritage].

5 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, October 17, 2003, 2368 U.N.T.S. 1 [hereinafter CSICH]. The CSICH does not grant property rights, although “ownership” of ICH, in a social, non-property law sense, is implicit through repeated references to State Parties, communities (indigenous communities in particular), groups, and “in some cases, individuals” as creators and bearers of ICH.

6 See CSICH, art. 3: “Nothing in this Convention may be interpreted as: […] (b) affecting the rights and obligations of States Parties deriving from any international instrument relating to intellectual property rights …” Footnote Id.

7 2003 Convention for the Safeguarding of the Intangible Cultural Heritage – Media Kit, UNESCO (2014), [hereinafter UNESCO, Media Kit].

8 See CSICH, 2nd Preambular Recital.

9 See, e.g., Making the Most out of Europe’s Traditional Know-How: A Possible Extension of Geographical Indication Protection of the European Union to Non-Agricultural Products, COM (2014) 469 final (July 15, 2014).

10 See CSICH, art. 16(1) (“In order to ensure better visibility of the intangible cultural heritage and awareness of its significance, and to encourage dialogue which respects cultural diversity, the Committee, upon the proposal of the States Parties concerned, shall establish, keep up to date and publish a Representative List …”).

11 See Footnote Id., art. 17(1) (“With a view to taking appropriate safeguarding measures, the Committee shall establish, keep up to date and publish a List of Intangible Cultural Heritage in Need of Urgent Safeguarding, and shall inscribe such heritage on the List at the request of the State Party concerned.”).

12 See Woodcrafting Knowledge of the Zafimaniry, UNESCO, (last visited March 21, 2016); U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, November 8, 2008, U.N. Doc. ITH/08/3.COM/CONF.203/1, [hereinafter “ICSICH”].

13 See Chovqan, a Traditional Karabakh Horse-Riding Game in the Republic of Azerbaijan, UNESCO, (last visited March 21, 2016); U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, December 7, 2013, U.N. Doc. ITH/13/8.COM/Decisions,

14 See Broude, Trade and Culture, supra Footnote note 2, at 642–44.

16 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of the Intangible Cultural Heritage, November 19, 2010, U.N. Doc. ITH/10/5.COM/CONF.202/Decisions,

19 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (Diversity Convention) art. 2(1), October 20, 2005 [hereinafter CCD],

20 See, e.g., Broude, Trade and Culture, supra Footnote note 2.

21 See, e.g., Mohammed Bedjaoui, The Convention for the Safeguarding of the Intangible Cultural Heritage: The Legal Framework and Universally Recognized Principles, 56 Museum Int’l 150 (2004); Toshiyuki Kono & Julia Cornett, What is Intangible Cultural Heritage? An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage and the Requirement of Compatibility with Human Rights, in Safeguarding Intangible Cultural Heritage: Challenges and Approaches: A Collection of Essays (Janet Blake ed., 2007); Janet Blake, Commentary on the 2003 UNESCO Convention on the Safeguarding of the Intangible Cultural Heritage (2006); but see, e.g., Federico Lenzerini, Intangible Cultural Heritage: The Living Culture of Peoples, 22 Eur. J. of Int’l L. 101 (2011); and Lixinski, Intangible Cultural Heritage, supra Footnote note 4.

22 See CSICH, supra Footnote note 5, 2nd Preambular Recital.

23 See Footnote Id., art. 2(2).

24 See Footnote Id., art. 2(1).

25 See Lucas Lixinski, Selecting Heritage: The Interplay of Art, Politics and Identity, 22 Eur. J. of Int’l L. 81, 94 (2011) (noting that there was resistance among drafters toward establishing specific legal obligations of protection in the CSICH).

26 See Richard Kurin, Safeguarding Intangible Cultural Heritage in the 2003 UNESCO Convention: A Critical Appraisal, 56 Museum Int’l 66, 69 (2004).

27 See CSICH, supra Footnote note 5, art. 2(1). Article 2(1) does refer to ICH as being “transmitted from generation to generation,” implying a requirement of some intergenerational history and tradition, and indeed most applications for inscription in the Representative List allude to such transmission. But arguably, contemporary traditions would also qualify as ICH, even “invented traditions,” as elaborated by Hobsbawm. See Eric Hobsbawm, Introduction: Inventing Traditions, in The Invention of Tradition 114 (Eric Hobsbawm & Terence Ranger eds., 1983).

28 UNESCO, Media Kit.

29 See CSICH, art. 2(1).

30 Lenzerini, supra Footnote note 21, at 108.

31 See CSICH, arts. 16(2), 17(2) (prescribing that “[t]he Committee shall draw up and submit to the General Assembly for approval the criteria for the establishment, updating and publication of this Representative List”).

32 See, e.g., Mounir Bouchenaki, The Interdependency of the Tangible and Intangible Cultural Heritage, in 14th ICOMOS General Assembly and International Symposium, Place, Memory, Meaning: Preserving Intangible Values in Monuments and Sites, October 27–31, 2003,; see also CSICH, 1st Preambular Recital (referring to the “deep-seated interdependence” between the tangible and intangible cultural heritage).

33 See CSICH, art. 2(1).

34 See UNESCO (2012), for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage, adopted by the General Assembly of the States Parties to the Convention at its second ordinary session (Paris, France, June 16–19, 2008), amended at its third session (Paris, France, June 22–24, 2010), at its fourth session (Paris, France, June 4–8, 2012), and its fifth session (Paris, France, June 2–4, 2014) [hereinafter UNESCO, Operational Directives].

35 See William S. Logan, Closing Pandora’s Box: Human Rights Conundrums in Cultural Heritage Protection, in Cultural Heritage and Human Rights 33 (Helaine Silverman & D. Fairchild Ruggles eds. 2007) (using the Ku Klux Klan rituals as an example).

36 Kurin, supra Footnote note 26, at 70.

37 CSICH, 1st Recital.

38 See CSICH, art. 2(1).

39 Logan, supra Footnote note 35, at 39 (showing the most scathing critique of the political and indeed hegemonic nature of cultural heritage, which can be found in her exposition of “Authorized Heritage Discourse”); see Laurajane Smith, Uses of Heritage (2006).

40 CCD, supra Footnote note 19, art. 2.

41 CISCH, art. 1.

42 Footnote Id., art. 2(3).

43 Footnote Id., arts. 11–15.

44 Footnote Id., art. 11.

45 See CSICH, art. 13.

46 See Footnote Id., art. 15.

47 See Footnote Id., arts. 16–18.

48 See Footnote Id., art. 18.

49 See Footnote Id., art. 16(1).

50 See Footnote Id., art. 17(1).

51 Footnote Id., 2nd Preambular Recital.

52 Footnote Id., art. 39.

53 It is rare, though not unheard of, for different authentic language texts of treaties to have such widely discrepant meanings. See Bradly J. Condon, Lost in Translation: Plurilingual Interpretation of WTO Law, 1 J. of Int’l Dispute Settlement 191 (2010).

54 See, e.g., Horace M. Kallen, Democracy Versus the Melting Pot: A Study of American Nationality, The Nation, February 25, 1915 (critiquing cultural diversity in immigrant cultures).

55 CSICH, art. 2.

56 Footnote Id., 2nd Preambular Recital.

57 Lenzerini, supra Footnote note 21, at 103.

58 See UNESCO Universal Declaration on Cultural Diversity, UNESCO, art. 7,

59 See UNESCO, Main Lines of an Action Plan for the Implementation of the UNESCO Declaration on Cultural Diversity, art. 13.

60 See Marie-Theres Albert, World Heritage and Cultural Diversity: What Do they Have in Common?, in World Heritage and Cultural Diversity 17, 18 (Dieter Offenhäußer et al. eds., 2010).

61 UNESCO, Operational Directives, supra Footnote note 34.

62 See Footnote Id., ch. I.1: U.1.

63 See Footnote Id., ch. I.1: U.2.

64 See Footnote Id., ch. I.1: U.3.

65 See Footnote Id., ch. I.1: U.4; see, e.g., Lixinski supra Footnote note 25.

66 See UNESCO, Operational Directives, supra Footnote note 34, ch. I.1: U.5.

67 Broude, Trade and Culture, supra Footnote note 2.

68 Agreement on Trade-Related Aspects of Intellectual Property Rights, April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Result of the Uruguay Rounds vol. 31, 33 I.L.M. 81 (1994) [hereinafter TRIPS].

69 In the present chapter, focused as it is on ICH and culinary practices, I will ignore the potential implications of the CSICH, for all its normative “softness,” in the arena of international trade regulation.

70 Broude, Trade and Culture, supra Footnote note 2, at 678.

71 Dev S. Gangjee, GIs and Cultural Heritage, 4 WIPO J. 85, 94 (2014).

72 See Broude, Trade and Culture, supra Footnote note 2, at 662–78 (providing several more examples).

73 Footnote Id., at 640.

74 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, November 19, 2010, U.N. Doc. ITH/10/5.COM/CONF.202/Decisions [hereinafter 5.COM, 2010].

75 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, November 2010, Nomination File No. 00394 [hereinafter UNESCO, CSICH, 5.COM].

76 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, December 2013, Nomination File No. 00884 [hereinafter UNESCO, CSICH, 8.COM].

77 The nomination documents submitted in 2010 included the following definition for the Mediterranean diet: “[A] nutritional model that has remained constant over time and space, consisting mainly of olive oil, cereals, fresh or dried fruit and vegetables, a moderate amount of fish, dairy and meat, and many condiments and spices, all accompanied by wine or infusions, always respecting beliefs of each community.” See UNESCO, CSICH, 5.COM; U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, October 6, 2010, U.N. Doc. ITH/10/5.COM/CONF.202/6, 52.

78 UNESCO, CSICH, 8.COM, at 6.

79 The geographical definition is in itself problematic; the Mediterranean diet (or diets) has migrated with “Mediterraneans” to distant corners of the earth, and has also been adopted outside the region due to its purported health effects. See Anne Noah & Arthur Stewart Truswell, There are Many Mediterranean Diets, 10 Asia Pac. J. of Clinical Nutrition 2 (2001).

80 Ancel B. Keys et al., Seven Countries: A Multivariate Analysis of Death and Coronary Heart Disease (1980); Ancel B. Keys & Margaret Keys, How to Eat Well and Stay Well the Mediterranean Way (1975).

81 See, e.g., MediTERRA 2012: The Mediterranean Diet for Sustainable Regional Development (2012) (including bibliographies).

82 Dirk Pulkowski, The Law and Politics of International Regime Conflict 163 (2014).

83 Morgan Figuers, Monuments, Mountains and … the Mediterranean Diet? Potential for UNESCO’s World Culinary Heritage Inscriptions to Positively Affect Sustainable Agriculture, 24 Colo. Nat. Res., Energy and Envtl. L. Rev. 419, 440 (2013).

84 UNESCO, CSICH, 8.COM, supra Footnote note 76, at 5.

85 See, e.g., Noah & Truswell, supra Footnote note 79 (providing an interview-based research finding that there are important differences in food habits between Mediterranean countries and at least four distinct categories of diets in the Mediterranean basin); Artemis P. Simopoulos, The Mediterranean Diets: What Is So Special about the Diet of Greece? The Scientific Evidence, 131 The J. of Nutrition 3065 (2001) (explaining that “[t]he term ‘Mediterranean diet,’ implying that all Mediterranean people have the same diet, is a misnomer. The countries around the Mediterranean basin have different diets, religions and cultures.”

86 See Isabel González Turmo, The Mediterranean Diet: Consumption, Cuisine and Food Habits, in MediTERRA 2012: The Mediterranean Diet for Sustainable Regional Development 115 (2012) (subsequently listing no fewer than 29 “core typologies,” ranging from “cold or warm soups or broths, made with bread, oil, garlic or other spicy or sharp condiments” to “cooked or sweet-fried nuts”).

87 See Senén Florensa & Xavier Aragall, Mutations in Mediterranean Societies, in MediTERRA 2012: The Mediterranean Diet for Sustainable Regional Development 91 (2012), for an excellent big-picture review of social trends (or “mutations” as they call them), some associated with “globalization” others not: changes in values, new lifestyles, religiosity vs. secularization, increased tourism and emigration, and intra-society demographic transitions.

88 See González Turmo, supra Footnote note 86, at 115 (noting that “[t]his nomination cannot stand as a mere brandname that can be attached to food products, events and publications”).

89 See Ricardo Mazátlan Páramo, Gastronomic Heritage and Cultural Tourism: An Exploration of the Notion of Risk in Traditional Mexican Food and the Gastronomic System, 6 Essex Graduate J. of Sociology (2006) (discussing the potentially negative impacts of tourism on safeguarding of culinary cultural heritage, in the context of traditional Mexican food).

90 See Sam Chapple-Sokol, Culinary Diplomacy: Breaking Bread to Win Hearts and Minds, 8 The Hague J. of Dipl. 161 (2013) (exploring the use of foods in diplomacy and international politics); Juyan Zhang, The Food of the Worlds: Mapping and Comparing Gastrodiplomacy Campaigns, 9 Int’l J. of Commc’n 568 (2015) (comparing and evaluating state campaigns to market national foods internationally, with specific reference to Korean Kimchi, discussed in section IV(b), infra).

91 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, December 7, 2013, U.N. Doc. ITH/13/8.COM/Decisions [hereinafter 8.COM, 2013].

92 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, December 2013, Nomination File No. 00881 [hereinafter Nomination File].

93 The qualification Korean-style is important. On the one hand, it excludes foods that are not produced in a Korean fashion (as set out in more detail in the Nomination File; see Footnote Id.). On the other hand, while the inscription relates to Kimjang in the Republic of Korea, the qualification recognizes the practice of Kimjang outside of South Korea, such as by Korean diasporas; on the importance of kimchi in Korean ethnic communities in Germany, see Gin-Young Song, Kimchi – Geschmack und Migration: Zur Nahrungskultur von Koreanern in Deutschland (Studien und Materialien des Ludwig-Uhland-Instituts der Universität Tübingen, 2012).

94 Nomination File, supra Footnote note 92, at 3.

95 Footnote Id., at 3–4.

96 See Suk-Heung Oh, Kye Won Park, James W. Daily III & Young-Eun Lee, Preserving the Legacy of Healthy Korean Food, 17 J. of Medicinal Food 1 (2014).

97 See World Institute of Kimchi as Leading Global Institute of Fermented Foods, 8 Biotechnology J. 759, 760 (2013).

98 See The Kimchi Wars, The Economist, November 17, 2005.

99 See Laurel Kendall, Introduction: Material Modernity, Consumable Tradition, in Consuming Korean Tradition in Early and Late Modernity: Commodification, Tourism, and Performance 14 (Laurel Kendall ed., 2010) [hereinafter Kendall, Consuming Korean Tradition] (referring to Kyung-Koo Hang, The “Kimchi Wars” in Globalizing East Asia: Consuming Class, Gender, Health, and National Identity, in Kendall, Consuming Korean Tradition, at 149).

100 See Oh et al. supra Footnote note 96; see Kun-Young Park, Ji-Kang Jeong, Young-Eun Lee & James W. Daily III, Health Benefits of Kimchi (Korean Fermented Vegetables) as a Probiotic Food, 17 J. of Medicinal Food 6 (2014); Meizi Cui, Hee-Young Kim, Kyung Hee Lee, Ji-Kang Jeong, Ji-Hee Hwang, Kyu-Young Yeo, Byung-Hee Ryu, Jung-Ho Choi & Kun-Young Park, Antiobesity Effects of Kimchi in Diet-Induced Obese Mice, 2 J. of Ethnic Foods 137 (2015).

101 Nomination File, supra Footnote note 92, at 2.

102 See Choe Sang-Hun, Kimchi Goes to Space, along with First Korean Astronaut, New York Times (February 22, 2008),

103 Nomination File supra Footnote note 92, at 8.

104 “ ‘Domestic consumption has dropped dramatically’ Why? People are eating out more, are eating less salty foods, and have developed a taste for Western foods. ‘[P]eople don’t tend to eat kimchi with spaghetti.’ ” See Lucy Williamson, Kimchi: South Korea’s Efforts to Boost Its National Dish, BBC News (February 4, 2014), According to one source, kimchi consumption in Korea has dropped over the last decade from 100 grams a day (per person) to only 60 grams. See Jonah M. Kessel, Preserving Korea’s Kimchi, New York Times (July 29, 2015),

105 Alexandra Stevenson, Uncertain Trade Path for South Korea’s Kimchi, New York Times (July 29, 2015),

106 Nomination File, supra Footnote note 92.

108 See Gwynn Guilford, The Kimchi War between South Korea and China is Getting Extra Spicy, Quartz (February 5, 2014), In financial terms, Chinese imports constitute about 5 percent of the Korean market for kimchi, indicating the relatively low cost, and the wholesale nature of the market for Chinese imports. See Yusun Lee, Kimchi – No Longer Solely Korea’s, 51 Fin. & Dev. 32 (2014).

109 See Yong-Sun Lee et al., Survey and Research on the Consumption of Kimchi by Households and Foodservice Industry, Korea Rural Economic Institute (December 30, 2011),

110 See Kun-Young Park & Hong-Sik Cheigh, Kimchi, in Handbook of Food and Beverage Fermentation Technology 714, 747 (Y.H. Hui et al., eds., 2005) (referring to data from 1997 showing that 27.1 percent of Korean kimchi consumption was sourced from commercial production).

111 See Calvin Sims, Cabbage Is Cabbage? Not to Kimchi Lovers; Koreans Take Issue With a Rendition Of Their National Dish Made in Japan, The New York Times (February 5, 2000), The Korea/Japan “kimchi/kimuchi” tension apparently arose from a Japanese proposal to designate kimuchi an official food of the 1996 Atlanta Olympics. See Agence France-Presse, S.Korea, Japan in Struggle for Sovereignty over Pickled Cabbage (March 16, 2000).

112 See Codex Standard for Kimchi (Codex Stan 223–2001) (2001).

113 Footnote Id.; see Codex, defining kimchi as the product “prepared from varieties of Chinese cabbage, Brassica pekinensis Rupr.”

114 See Mei Chin, The Art of Kimchi, Saveur (October 14, 2009). This principle is confirmed by the Kimjang Nomination File itself. See Nomination File supra Footnote note 92.

115 Nomination File supra Footnote note 92.

116 See Food and Agricultural Organization of the United Nations statistical database,

117 See Mark McDonald, Rising Cost of Kimchi Alarms Koreans, The New York Times (October 14, 2010),

118 Both China and South Korea imposed restrictions on imports of kimchi having found parasite eggs in each other’s kimchi products. See Scott Snyder & See-Won Byun, China-ROK Disputes and Implications for Managing Security Relations, 5 Kor. Eco. Inst. – Acad. Paper Series (2010).

119 See The Kimchi Wars: South Korea and China Duel over Pickled Cabbage, The Economist (November 17, 2005).

120 See Protection of GIs in the Republic of Korea, Italian Intellectual Property Rights DESK, 2010; Annex 16.4.3, Free Trade Agreement between the Republic of Korea and the Republic of Chile, signed February 15, 2003, entered into force April 1, 2004.

121 See Annex 10-A, Part B, Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part, entered into force July 1, 2011.

122 Nomination File supra Footnote note 92, at 6–9.

123 See World Institute of Kimchi: Finding the Essence of Kimchi, (April 5, 2010) (quoting Mr. Park Wan-soo, Director of the Institute).

124 U.N. Educ., Sci., & Cultural Org., Convention for the Safeguarding of the Intangible Cultural Heritage, Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage, December 2015, U.N. Doc. ITH/15/10.COM/Decisions, Nomination File No. 01063.

125 See Lucas Lixinski, A Tale of Two Heritages: Claims of Ownership over Intangible Cultural Heritage and the Myth of “Authenticity,” 11 Transnat’l Dis. Mgmt. 1 (2014) (providing a critical assessment of the concept of “authenticity” in cultural heritage, relating to not dissimilar circumstances (differences between China and South Korea over the “Dragon Boat Festival”). Lixinski concludes that authenticity is “a socially, historically and culturally contingent concept that should have no place in an international heritage system that seeks to enhance cross-cultural dialogue and promote the ‘common heritage of mankind’ ”).

20 Geographical Indications, Heritage, and Decentralization Policies: The Case of Indonesia

* Professor of Law, Newcastle Law School, Faculty of Business and Law, University of Newcastle, Australia; Affiliated Fellow, Max Planck Institute for Innovation and Competition, Munich; Senior Fellow, Center for Development Research, University of Bonn. This research was supported under the Australian Research Council’s Discovery Projects funding scheme (Project No. DP130100213).

1 Graham Dutfield, Geographical Indications and Agricultural Community Development: Is the European Model Appropriate for Developing Countries?, in The Intellectual Property and Food Project: From Rewarding Innovation and Creation to Feeding the World 175, 176 (Charles Lawson and Jay Sanderson eds., 2013); Sarah Bowen, Development from Within? The Potential for Geographical Indications in the Global South, 13 J. World Intell. Prop. 231, 233–35 (2010).

2 Tzen Wong & Claudia Fernandini, Traditional Cultural Expressions: Preservation and Innovation, in Intellectual Property and Human Development: Current Trends and Future Scenarios 175, 193–96 (Tzen Wong & Graham Dutfield eds., 2010).

3 Michael Blakeney, Protection of Traditional Knowledge by Geographical Indications, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region 87, 87108 (Christoph Antons ed., 2009).

4 Dev S. Gangjee, Geographical Indications and Cultural Heritage, 4 WIPO J. 92, 92102 (2012).

5 Rosemary J. Coombe, Sarah Ives & Daniel Huizenga, Geographical Indications: The Promise, Perils and Politics of Protecting Place-Based Products, in Sage Handbook on Intellectual Property, 207, 207–23 (Deborah Halbert & Matthew David eds., 2014).

6 Surip Mawardi, Advantages, Constraints and Key Success Factors in Establishing Origin- and Tradition-Linked Quality Signs: The Case of Kintamani Bali Arabica Coffee Geographical Indication, Indonesia, Case Study on Quality Products Linked to Geographical Origin in Asia Carried Out for FAO (May 25, 2009),; Kasturi Das, Prospects and Challenges of Geographical Indications in India, 13 J. World Intell. Prop. 148, 180 (2010).

7 Penjelasan Atas Peraturan Pemerintah Republik Indonesia Nomor 51 Tahun 2007 Tentang Indikasi-Geografis.

8 For a specific example from the Krayan region in Kalimantan, see Beras Adan Resmi Dipatenkan, KOMPAS (January 15, 2012),

9 Undang-Undang Republik Indonesia Nomor 20 Tahun 2016 tentang Merek dan Indikasi Geografis

10 Christoph Antons, Indonesia, in Intellectual Property in Asia; Law, Economics, History and Politics (Paul Goldstein and Joseph Straus eds., 2009), 101102.

11 Undang-Undang Republik Indonesia Nomor 15 Tahun 2001 tentang Merek.

12 Penjelasan Rancangan Undang-Undang Republik Indonesia Nomor 20 Tahun 2016 tentang Merek dan Indikasi Geografis.

13 See Das, supra Footnote note 6, at 148 (discussing India as an example of a country introducing GI protection because of TRIPS).

14 Dutfield, supra Footnote note 1; Michael Blakeney, The Pacific Solution: The European Union’s Intellectual Property Rights Activism in Australia’s and New Zealand’s Sphere of Influence, in Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development 165–88 (Peter Drahos & Susy Frankel eds., 2012).

15 Mawardi, supra Footnote note 6 (discussing the “Quality Linked to Geographical Origin” program of FAO); see also Bowen, supra Footnote note 1, at 232.

16 Bowen, supra Footnote note 1, at 235.

17 Dutfield, supra Footnote note 1, at 188.

18 Footnote Id. at 189–90. See generally Christoph Antons, Epistemic Communities and the “People without History”: The Contribution of Intellectual Property Law to the “Safeguarding” of Intangible Cultural Heritage, in Diversity in Intellectual Property: Identities, Interests and Intersections 453, 467–69 (Irene Calboli & Srividhya Ragavan eds., 2015) (highlighting that this is an increasingly widespread issue in the registration of heritage).

19 Amit Basole, Authenticity, Innovation and the Geographical Indication in an Artisanal Industry: The Case of the Banarasi Sari, 18 J. World Intell. Prop. 127, 143 (2015).

20 Rosemary J. Coombe, Sarah Ives & Daniel Huizenga, The Social Imaginary of Geographical Indicators in Contested Environments: The Politicized Heritage and the Racialized Landscapes of South African Rooibos Tea, in Sage Handbook on Intellectual Property 224–37 (Deborah Halbert & Matthew David eds., 2014).

21 Taufik Abdullah, Indonesia: Towards Democracy 536 (2009).

22 See The Politics of Decentralization: Natural Resource Management in Asia (Chusak Wittayapak & Peter Vandergeest eds., 2010); Communities and Conservation: Histories and Politics of Community-Based Natural Resource Management (J. Peter Brosius, Anna Lowenhaupt Tsing & Charles Zerner eds., 2005).

23 Peter Vandergeest & Chusak Wittayapak, Decentralization and Politics, in The Politics of Decentralization: Natural Resource Management in Asia 1, 4 (Chusak Wittayapak & Peter Vandergeest eds., 2010).

24 Footnote Id. at 11.

25 Law No. 23 of 2014 on Regional Government Administration (Undang-Undang No. 23 Tahun 2014 tentang Pemerintahan Daerah).

26 Indon. Const. arts. 18-18B, 1945.

27 Indon. Const. art. 1(1) (stating that “[t]he State of Indonesia is a unitary state in the form of a republic”).

28 Abdullah, supra Footnote note 21, at 191–99.

29 Vedi R. Hadiz, Localising Power in Post-Authoritarian Indonesia: A Southeast Asia Perspective (2010).

30 On the difficulties with the use of this term in countries like Indonesia, see Anna Lowenhaupt Tsing, Adat/Indigenous: Indigineity in Motion, in Words in Motion: Towards a Global Lexicon 4064 (Carol Gluck & Anna Lowenhaupt Tsing eds., 2009); Gerard Persoon, “Being Indigenous” in Indonesia and the Philippines, in Traditional Knowledge, Traditional Cultural Expressions and Intellectual Property Law in the Asia-Pacific Region 195216 (Christoph Antons ed., 2009).

31 Indon. Const. art. 28I(3), 1945.

32 Noer Fauzi Rachman & Mia Siscawati, Forestry Law, Masyarakat Adat, and Struggles for Inclusive Citizenship in Indonesia, in The Routledge Handbook of Asian Law 224249 (Christoph Antons ed., 2017).

33 See the GI Registration List, Directorate General of Intellectual Property Rights, (last visited February 7, 2017) (showing twenty-one of the thirty-nine registered GIs in Indonesia (including three from foreign countries) are from the islands outside of Java).

34 Anthony Reid, Indonesia, Aceh and the Modern Nation State, in The Politics of the Periphery in Indonesia: Social and Geographical Perspectives 84, 94 (Minako Sakai, Glenn Banks & J.H. Walker eds., 2009).

35 John R. Bowen, Islam, Law and Equality in Indonesia: An Anthropology of Public Reasoning 24 (2003); Edward Aspinall, Modernity, History and Ethnicity: Indonesian and Acehnese Nationalism in Conflict, in Autonomy and Disintegration in Indonesia 128, 141 (Damien Kingsbury & Harry Aveling eds., 2003).

36 Mary Hawkins, Violence and the Construction of Identity: Conflict between the Dayak and Madurese in Kalimantan, Indonesia, in The Politics of the Periphery in Indonesia: Social and Geographical Perspectives 153172 (Minako Sakai, Glenn Banks & J.H. Walker eds., 2009).

37 Kathleen M. Adams, Touting Touristic “Primadonas”: Tourism, Ethnicity, and National Integration in Sulawesi, Indonesia, in Tourism, Ethnicity and the State in Asian and Pacific Societies 160–72 (Michel Picard & Robert E. Wood eds., 1997).

38 See, e.g., Christoph Antons, Traditional Knowledge and Intellectual Property Rights in Australia and Southeast Asia, in New Frontiers of Intellectual Property Law: IP and Cultural Heritage, Geographical Indications, Enforcement and Overprotection 3751 (Christopher Heath & Anselm Kamperman Sanders eds., 2005); Christoph Antons, What Is “Traditional Cultural Expression”? International Definitions and Their Application in Developing Asia, 1 WIPO J. 103 (2009); Rosemary Coombe, The Expanding Purview of Cultural Properties and Their Politics, 5 Ann. Rev. L. & Soc. Sci. 393 (2009); Lorraine V. Aragon & James Leach, Arts and Owners: Intellectual Property Law and the Politics of Scale in Indonesian Arts, 35 Am. Ethnologist 607 (2008); Jinn Winn Chong, “Mine, Yours or Ours?”: The Indonesia-Malaysia Disputes over Shared Cultural Heritage, 27 Sojourn: J. Soc. Issues Se. Asia 153 (2012).

39 Peraturan Daerah Khusus Provinsi Papua Nomor 19 Tahun 2008 Tentang Perlindungan Hak Kekayaan Intelektual Orang Asli Papua.

40 M.C. Ricklefs, A History of Modern Indonesia since c. 1200 328, 358–59 (3rd edn. 2001).

41 Richard Chauvel, Papua and Indonesia: Where Contending Nationalisms Meet, in Autonomy and Disintegration in Indonesia 115, 122 (Damien Kingsbury & Harry Aveling eds., 2003) (quoting Decrees of the People’s Advisory Assembly (MPR) No. IV/MPR/1999, No. VIII/MPR/2000, Appendix 1.1.a).

42 Footnote Id., 122–27.

43 Art. 1 t. of Law No. 21 of 2001 on Special Autonomy for the Papua Province.

44 Art. 1 No. 8 of the Special Regional Regulation of the Province Papua No. 19 of 2008 on the Protection of Intellectual Property Rights of Indigenous Papuans.

45 Art. 1 No. 16 of Special Regulation No. 19/2008.

46 Peraturan Daerah Provinsi Jawa Barat Nomor 5 Tahun 2012 Tentang Perlindungan Kekayaan Intelektual.

47 BE, Kanwilkumham Babel Ajukan Perda HAKI, Belitong Ekspres (December 13, 2014),

48 Pemprov Diminta Terbitkan Perda HKI, Ubaya (June 11, 2015),

49 Art. 7(2) Regional Regulation of the Province of West Java on the Protection of Intellectual Property.

50 In art. 8(3), (4), the term is used to cover performances, recordings, and broadcasting rights.

51 Art. 1 No. 6 Trade Marks and Geographical Indications Act (defining a GI as “a sign, which indicates the geographical origin of a good and/or product, with this origin giving a certain reputation, quality and characteristic to the good because of the geographical environment, the human factor or a combination of the two.”).

52 Annex to Law No. 23 of 2014 under V.

53 Annex to Law No. 23 of 2014 under Z.

54 Annex to Law No. 23 of 2014 under M.

55 Annex to Law No. 23 of 2014 under K.

56 Simon Butt, Regional Autonomy and Legal Disorder: The Proliferation of Local Laws in Indonesia, 32 Sydney L. Rev. 177–97 (2010); Simon Butt, National Control Over Local Lawmaking in Indonesia, in The Routledge Handbook of Asian Law, 203223 (Christoph Antons ed., 2017).

57 See the Constitutional Court’s re-interpretation of Article 4(3) of Law No. 41 of 1999 on Forestry, Decision of the Constitutional Court No. 35/PUU-X/2012 of May 16, 2013, 185–86.

58 Footnote Id. at 1–188.

59 Madhavi Sunder, The Invention of Traditional Knowledge, 70 L. & Contemp. Probs. 97124 (2007).

60 Art. 2(1) Government Regulation No. 51/2007.

61 Art. 2(2) Government Regulation No. 51/2007.

62 Art. 2(4) Government Regulation No. 51/2007.

63 Art. 3(d) Government Regulation No. 51/2007.

64 Wikipedia, Pisang Ambon, (last visited June 10, 2016).

65 Dutch Company Claims Int’l Trade Rights Over Gayo Coffee, Jakarta Post (February 11, 2008),; Mark Forbes, Aceh Heads for New Conflict – Over the Name of a Coffee, Sydney Morning Herald (February 16, 2008),–over-the-name-of-a-coffee/2008/02/15/1202760599951.html.

66 Art. 56(1)a. Trade Marks and Geographical Indications Act.

67 Christoph Antons, Intellectual Property Law in Indonesia 1920 (2000)

68 Persoon, supra Footnote note 30.

69 See the Government Explanation to Article 5 a. of the former Trade Marks Act of 2001: “Included in the understanding of conflicting with religious morality, ethics or the public order is where the use of the aforementioned sign may hurt the feeling, politeness, calm or religiousness of the general public or of a certain group in society.”

70 Antons, supra Footnote note 67, 221.

71 Article 56(2)b. Trade Marks and Geographical Indications Act.

72 Art. 56 (4) Trade Marks Act; Article 3 b. of Government Regulation No. 51/2007.

73 Preamble, Government Regulation No. 51/2007.

74 GI Registration List, supra Footnote note 33.

76 Directorate General of Intellectual Property Rights, (last visited March 9, 2016) (providing links to the various buku persyaratan (books of rules and regulations), from which details about the membership can be collected).

77 Art. 5(3) Government Regulation No. 51/2007.

78 For example, the executive committee of the association administering the GI for Jepara furniture, discussed in the following section, includes representatives from artisan centers and craft schools. See Directorate General of Intellectual Property Rights, (last visited March 9, 2016).

79 See, e.g., Decision of the Regent of Jepara No. 78 of 2010 Regarding the Formation of the Operational Organization of Geographical Indications Products, 55–59, (last visited March 9, 2016) [hereinafter Decision of the Regent of Jepara].

80 Art. 6(3) Government Regulation No. 51/ 2007.

81 See Arts. 56(2)a., 66a. Trade Marks and Geographical Indications Act.

82 Art. 6 (3) Government Regulation No. 51/2007.

83 See, e.g., Decision of the Regent of Jepara, supra Footnote note 79.

84 Arts. 8, 14 58, 59 Trade Marks and Geographical Indications Act.

85 Pemerintah angkat tim ahli indikasi geografis, KOPI GAYO COFFEE (July 21, 2008), (last visited June 3, 2016). For the regulation of membership of the team see Art. 14 (2) Government Regulation No. 51/2007.

86 See Art. 59(2) of the Trade Marks and Geographical Indications Act.

87 Article 59(5) Trade Marks and Geographical Indications Act.

88 Art. 8(2) Government Regulation No. 51/2007.

89 See Art. 58(2) Trade Marks and Geogreaphical Indications Act and Article 23(5) for the length of the substantive examination process..

90 Art. 60 Trade Marks and Geographical Indications Act.

91 Art. 71(1) Trade Marks and Geographical Indications Act.

92 Article 71(2) Trade Marks and Geographical Indications Act.

93 Articles 53(4), 16 Trade Marks and Geographical Indications Act.

94 Article 69 Trade Marks and Geographical Indications Act.

95 Robert L. Winzeler, Introduction to Indigenous Peoples and the State: Politics, Land, and Ethnicity in the Malayan Peninsula and Borneo 1, 3 n. 2 (Robert L. Winzeler ed., 1997).

96 I Ketut Ardhana, Jayl Langub & Daniel Chew, Borders of Kinship and Ethnicity: Cross-Border Relations Between the Kelalan Valley, Sarawak, and the Bawan Valley, East Kalimantan, 35 Borneo Research Bulletin 144–45 (2004).

98 Dora Jok, Adan Rice, in The Human Heart of Borneo 45 (Nancy Ariaini et al., (eds.), not dated), (last visited June 6, 2016).

99 Cristina Eghenter, Borneo: One Island One Sustainable Future, in The Human Heart of Borneo, supra Footnote note 98, at 57.

100 Ardhana et al., supra Footnote note 96, at 144–145.

101 Jayl Langub, Lati’ba: The Process of Wet-Rice Cultivation, in The Human Heart of Borneo, supra Footnote note 98, at 44.

102 Jok, supra Footnote note 98, at 45; Ardhana et al., supra Footnote note 96, at 144–145.

103 Beras Adan Resmi Dipatenkan, KOMPAS: Regional (January 15, 2012), (last visited February 15, 2016)

104 Ardhana et al., supra Footnote note 96, at 144–145.

105 Footnote Id. at 169, 172.

106 Antons, supra Footnote note 18.

107 Andi Saputra, Sempat Diklaim Malaysia, Beras Adan Krayan Kini Milik Indonesia, detikNews (January 13, 2012), (last visited February 15, 2016)

108 Beras Adan Resmi Dipatenkan, supra Footnote note 97; Agus Candra, Malaysia Klaim Padi Adan Indonesia, Kompasiana (March 14, 2011), (last visited February 15, 2016)

109 Ardhana et al., supra Footnote note 96, at 144–145.

110 Candra, supra Footnote note 108.

111 Undang-Undang Republik Indonesia Nomor 29 Tahun 2000 Tentang Perlindungan Varietas Tanaman.

112 Peraturan Pemerintah Republik Indonesia Nomor 13 Tahun 2004 Tentang Penamaan Pendaftaran dan Penggunaan Varietas Asal untuk Varietas Turunan Esensial.

113 Rajeswari Kanniah & Christoph Antons, Plant Variety Protection and Traditional Agricultural Knowledge in Southeast Asia, 13 Austl. J. Asian L. 16 (2012).

114 Plant Variety Register, Pusat Perlindungan Varietas Tanaman (Centre for Plant Variety Protection) of the Ministry of Agriculture, (last visited March 10, 2016).

116 For the composition of the management of the association see the “Book of rules and regulations” Buku Persyaratan Indikasi Geografis – Asosiasi Masyarakat Adat Perlindungan Beras Adan Krayan, (last visited February 15, 2016).

117 Ardhana et al., supra Footnote note 96, at 147, 169, 172.

118 Footnote Id. at 174.

119 The Human Heart of Borneo, supra Footnote note 98, at 59.

120 See the relevant “Book of rules and regulations” Buku Persyaratan Indikasi Geografis – Indikasi Geografis Mebel Ukir Jepara 1–2, (last visited March 10, 2016).

121 Footnote Id. at 57–59.

122 Footnote Id. at 60–62; see also Farisa Adilan, Hak Indikasi Geografis Mebel Ukir Jepara (IG MUJ) dalam Peningkatan Ekonomi Daerah Kabupaten Jepara, (last visited February 15, 2016); HaKI IG Melindungi Mebel Ukir, KOMPAS (December 27, 2010), (last visited February 15, 2016).

123 HaKI IG Melindungi Mebel Ukir, supra Footnote note 116; Adilan, supra Footnote note 116.

124 Art. 2(1) of Law No. 31 of 2000 on Industrial Designs.

125 Art. 38 of Law No. 28 of 2014 on Copyright.

126 Ardhana et al., supra Footnote note 96, at 175.

21 When Geographical Indications Meet Intangible Cultural Heritage: The New Japanese Act on Geographical Indications

* Associate Professor, Graduate School of Law, Kyushu University (Japan). The author would like to thank the International Research Centre for Intangible Cultural Heritage in the Asia-Pacific Region (IRCI) for their financial contribution to facilitate this research. The views and opinions expressed in this chapter are those of the author and do not necessarily reflect the official policy or position of IRCI.

1 Dev S. Gangjee, Geographical Indications and Cultural Rights: The Intangible Cultural Heritage Connection?, in Research Handbook on Human Rights and Intellectual Property 544, 555556 (Christophe Geiger ed., 2015) [hereinafter Gangjee, GIs and Cultural Rights].

2 Footnote Id. at 556.

5 See, e.g., Michael Blakeney, Geographical Indications, Traditional Knowledge, Expressions of Culture and the Protection of Cultural Products in Africa, in Extending the Protection of Geographical Indications: Case Studies of Agricultural Products in Africa 120 (Michael Blakeney, Thiery Coulet, Getachew Mengistie, & Marcelin Tonye Mahop eds., 2012); Michael Blakeney, Protection of Traditional Knowledge by Geographical Indications, 3 Int’l J. Intell. Prop. Mgmt 357 (2009); Insight Consulting, REDD and OriGin, Study on Geographical Indications Protections for Non-Agricultural Products in the Internal Market: Final Report (2013) available at

6 In several countries, protection for GIs extends beyond agricultural products. Among these countries are Brazil, Chile, China, Colombia, Russia, and Switzerland. See, e.g., Insight Consulting, REDD & OriGin, supra Footnote note 5, at 19–20.

7 See, e.g., Ministry of Agriculture, Forestry and Fisheries, Geographical Indication (GI) Protection System in Japan, MAFF, (last visited March 10, 2016); Junko Kimura, Dawn of Geographical Indications in Japan: Strategic Marketing Management of GI Candidates (2015), available at (last visited 15 September 2015).

8 Tokutei Norin Suisan Butsu to no Meisho no Hogo ni Kansuru Horitsu [Act for the Protection of the Names of Designated Agricultural, Forestry and Fishery Products and Foodstuffs], 25 June 2014, available at [hereinafter GI Act]. See Juichi Hayashi, Japan to Implement GI System on June 1, 2015, GAIN Report Number JA5008 (2015), available at–10-2015.pdf.

9 GI Act, supra Footnote note 8, art. 2.

11 See, e.g., Justin Hughes, Coffee and Chocolate – Can We Help Developing Country Farmers through Geographical Indications? (Washington, DC: International Intellectual Property Institute, 2010), available at

12 The debate is mainly conducted within the framework of traditional knowledge (TK) or traditional cultural expressions (TCE). The current chapter adopts the preposition that what has been said for TK and TCE can be transferred to intangible cultural heritage (ICH) as well. This is based on the parallels between the definitions that have been adopted or are being elaborated at the international level. See respectively Convention for the Safeguarding of the Intangible Cultural Heritage, U.N. Doc. MISC/2003/CLT/CH/14 (17 October 2003) [hereinafter ICH Convention]; The Protection of Traditional Knowledge: Draft Articles, WIPO Document No. WIPO/GRTKF/IC/28/5, June 2, 2014; The Protection of Traditional cultural expressions: WIPO Document No. WIPO/GRTKF/IC/28/6, June 2, 2014

13 See, e.g., Tomer Broude, A Diet Too Far? Intangible Cultural Heritage, Cultural Diversity, and Culinary Practices, in Diversity in Intellectual Property: Identities, Interests, and Intersections 472 (Irene Calboli & Srividhya Ragavan eds., 2015); Susy Frankel, The Mismatch of Geographical Indications and Innovative Traditional Knowledge 29(3) Prometheus 253267 (2011), available at; Toshiyuki Kono, Geographical Indication and Intangible Cultural Heritage, in Le indicazioni di qualità degli alimenti: diritto internazionale ed europeo 289 (Benedetta Ubertazzi & Esther Muñiz Espada eds., 2009); Tomer Broude, Taking ‘Trade and Culture’ Seriously: Geographical Indications and Cultural Protection in WTO Law, 26 U. Pa. J. Int’l L. 623 (2005) [hereinafter Broude, Trade and Culture].

14 See, e.g., Gangjee, GIs and Cultural Rights, supra Footnote note 1, at 544; Irene Calboli, Of Markets, Culture, and Terroir: The Unique Economic and Culture-Related Benefits of Geographical Indications of Origin, in Research Handbook on International Intellectual Property 433 (Daniel Gervais ed., 2014); Delphine Marie-Vivien, The Protection of Geographical Indications for Handicrafts: How to Apply the Concepts of Natural and Human Factors to All Products, 4 WIPO J. 191 (2013); Daniel Gervais, Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications, in Indigenous Peoples’ Innovation: Intellectual Property Pathways to Development 121, 132143 (Peter Drahos & Susy Frankel eds., 2012) (admitting that the support is limited to non-secret traditional knowledge); Cerkia Bramley, A Review of the Socio-Economic Impact of Geographical Indications: Considerations for the Developing World (24 June 2011), available at

15 Marsha A. Echols, Geographical Indications for Foods, TRIPS and the Doha Development Agenda, 47 J. Afr. L. 199 (2003).

16 See references supra Footnote note 13 and Footnote 14.

18 See Frankel, supra Footnote note 13, at 8.

19 See Kono, supra Footnote note 13, at 298.

20 See Calboli, supra Footnote note 14, at 452.

21 GI Act, supra Footnote note 8.

22 The focus of the Abe Cabinet on raising the profile of the agricultural sector as one of the pillars of the Japanese economy has facilitated the promulgation of a GI Act that solely focuses on agricultural, forestry, and fishery products and foodstuffs. See Ministry of Agriculture, Forestry and Fisheries, Abe Cabinet Agricultural Reform, MAFF, (last visited 8 October 2015).

23 See Nami Togawa, Report on the New Japanese Law on Protection of Geographical Indications, International Association for the Protection of Intellectual Property (2014) available at MAFF had been trying to set up a sui generis system for the protection of GIs in 2003. However, in a power struggle with the Ministry of Economy, Trade and Industry of Japan (METI), MAFF had to recognize its superior in METI, which developed the regionally based collective trademark system. See Louis Augustin-Jean & Kae Sekine, From Products of Origin to Geographical Indications in Japan: Perspectives on the Construction of Quality for the Emblematic Productions of Kobe & Matsusaka Beef, in Geographical Indications and International Agricultural Trade: The Challenge for Asia 139, 148 (Louis Augustin-Jean, Hélène Ilbert, & Neantro Saavedra-Rivano eds., 2012); Daisuke Kojo, Comment: The Importance of the Geographic Origin of Agricultural Products: A Comparison of Japanese and American Approaches, 14 Mo. Envtl. L. & Pol’y Rev. 275, 294 (2007). On the regionally based collective trademarks, see Kenneth Port, Regionally Based Collective Trademark System in Japan: Geographical Indicators by a Different Name or a Political Misdirection? 6 Cybaris, An Intel. Prop. L. Rev. 2 (2015).

24 This definition is narrower than the internationally accepted minimal standard for GIs formulated in Article 22(1) of TRIPS. Geographical indications, as defined in TRIPS, can include all kind of products, as long as there is a ‘quality, reputation or other characteristic’ linked to these products that can be attributed to a specific geographical region. See Calboli, supra Footnote note 14, at 457–59; Marie-Vivien, supra Footnote note 14, at 194–95.

25 GI Act, supra Footnote note 8, art. 2.

26 See Concerning Liquor Business Associations and Measures for Securing Revenue from Liquor Tax, No. 7 of 1953, art. 86.6 (Japan). The powers attributed to the Minister of Finance in this article have been used to create a GI system for liquors, see Standard for Indication in Relation to Geographical Indications, (Notification No. 4 of National Tax Agency, Revised Edition Notification No. 9, 2006) 28 December 1994, WIPO Lex No. JP068, available at (for an unofficial translation: There are currently six geographical indications recognized for wine (Yamanashi), sake (Hakusan), and sochu (Iki, Kuma, Satsuma, and Ryukyu).

27 See Ministry of Agriculture, Forestry and Fisheries, Establishment of Japan’s Geographical Indication, (GI) Protection System, MAFF, (last visited 8 October 2015) (stipulating that there is no need for a Cabinet Order to further specify the products that are included).

28 See Footnote id. (stipulating that there is no need for a Cabinet Order to further specify the products that are included).

29 See Implementation of Act for the Protection of the Names of Designated Agricultural, Forestry and Fishery Products and Foodstuffs, Law No. 227 of 2015, art. 1 (Japan) available at

30 See Cabinet Order No. 227, supra Footnote note 29, art 2.

31 See ICH Convention, supra Footnote note 12, arts. 2(1)–(2). See also Janet Blake, Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage 31, 39 (2006).

32 See Law for the Protection of Cultural Property, Law No. 2014 of 1950, art. 2(2) (Revised Edition 2007), available at (hereinafter Law No. 2014) (intangible cultural heritage is referred to in this law as intangible cultural properties and folk-cultural properties. Know-how, techniques, and traditional craftsmanship are categorized under intangible cultural properties). See also Cultural Properties Department (Agency for Cultural Affairs), Cultural Properties for Future Generations – Outline of the Cultural Administration of Japan (March 2015),

33 See GI Act, supra Footnote note 8, arts. 2(1), 3.

34 See Footnote id. at arts. 2(2), 3.

35 See Footnote id. at art. 2(5).

36 See Hayashi, supra Footnote note 8, at 4 (mentioning that producers, processors, and local branding associations can form an association of producers).

37 See GI Act, supra Footnote note 8, art. 7.

38 See Footnote id. at art. 7(1) 1–8.

39 See Footnote id. at art. 7(1) 9.

40 See Footnote id. at art. 7(2).

41 See Footnote id. at art. 8.

42 See Footnote id. at art. 9(1).

43 See GI Act, supra Footnote note 8, art. 9(2).

44 See Footnote id. at art. 11.

45 See Footnote id. at art. 11(2).

46 See Footnote id. at art. 11(3).

47 See Footnote id. at art. 11(4).

48 See Footnote id. at art. 12(1).

49 See GI Act, supra Footnote note 8, art. 12(3).

51 See Footnote id. at art. 13(1).

52 See Footnote id. at art. 13(2).

53 See Footnote id. at art. 13(3).

54 See Footnote id. at art. 13(4).

55 See GI Act, supra Footnote note 8, arts. 13(1), 22.

56 See Footnote id. at art. 13(2).

59 See Footnote id. at art. 13(3).

60 See Footnote id. at art. 2(1).

61 See GI Act, supra Footnote note 8, art. 2(2).

62 See Footnote id. at art. 13(4)(a).

63 See Footnote id. at art. 13(4)(b).

65 See Footnote id. at arts. 15–19.

66 See Footnote id. at art. 15.

67 See GI Act, supra Footnote note 8, art. 16

68 See Footnote id. at art. 15(1).

69 See Footnote id. at art. 15(2).

70 See Footnote id. at art. 16(2).

71 See Footnote id. at art. 16(3).

73 See GI Act, supra Footnote note 8, arts. 15(2), 16(3).

75 See Footnote id. at art. 17(3).

76 See Footnote id. at art. 22.

77 See Footnote id. at arts. 22(1)–(3).

78 See Footnote id. at art. 22(4).

79 See GI Act, supra Footnote note 8, art. 22(5).

80 See Footnote id. at art. 2(4).

83 See Footnote id. at art. 22(1).

84 See Footnote id. at art. 3(2).

85 See GI Act, supra Footnote note 8, art. 4.

86 See Footnote id. at art. 5.

87 See Footnote id. at art. 22(2).

88 See Footnote id. at art. 13(2).

89 See Footnote id. at art. 22(3).

90 See GI Act, supra Footnote note 8, arts 2(2), 22(4).

92 See Footnote id. at art. 22(5).

93 See Naoyuki Yoshino & Farhad Taghizadeh Hesary, Three Arrows of ‘Abenomics’ and the Structural Reform of Japan: Inflation Targeting Policy of the Central Bank, Fiscal Consolidation, and Growth Strategy 3 (Asian Development Bank Institute, Working Paper No. 492, 2014), available at

94 See Ministry of Agriculture, Forestry, and Fisheries, Abe Cabinet Agricultural Reform, MAFF (last visited 9 March 2016).

95 See Footnote id. at 5.

96 See Ministry of Agriculture, Forestry, and Fisheries, Establishment of Japan’s Geographical Indication (GI) Protection System, MAFF (last visited 9 March 2016); Ministry of Agriculture, Forestry, and Fisheries, Geographical Indication (GI) Protection System in Japan, MAFF (last visited 9 March 2016).

100 See Broude, Trade and Culture, supra Footnote note 13, at 651.

101 See Footnote id. at 656.

102 See GI Act, supra Footnote note 8, art.11.

103 See Shivani Singhal, Geographical Indication and Traditional Knowledge, 3 J. Intell. Prop. L. & Prac. 732, 733 (2008).

104 See supra Section 3.1.

105 See Rosemary J. Coombe, Sarah Ives, & Daniel Huizenga, Geographical Indications: The Promise, Perils and Politics of Protecting Place-Based Products, in The Sage Handbook of Intellectual Property 207, 215 (Matthew David & Debora Halbert eds., 2015).

106 See Rosemary J. Coombe, Cultural Agencies, The Legal Construction of Community Subjects and Their Properties, in Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective 79, 83 (Mario Biagioli, Peter Jaszi & Martha Woodmansee eds., 2011).

107 See Coombe, Ives, & Huizenga, supra Footnote note 105, at 215.

109 See, e.g., Natsuko Akagawa, Heritage Conservation in Japan’s Cultural Diplomacy: Heritage, National Identity and National Interest 134 (2015) (stating that communities have a lesser role to play in the Japanese intangible cultural heritage regime).

110 See Law No. 2014, supra Footnote note 32.

111 See Cultural Properties Department, supra Footnote note 32, at 2. (Note that under the Law for the Protection of Cultural Property the application process for important cultural property does not necessarily have to be done by a group. It can also be done by an individual.).

112 See Law for the Protection of Cultural Property, supra Footnote note 110, arts. 71–77.

113 See Coombe, Ives, & Huizenga, supra Footnote note 105, at 214.

114 Neil Komesar has pointed out that the more agencies participate and the more complex the issue at stake, there is an ‘enhanced possibility of minoritarian bias and the prospect of “rent-seeking”’. The ideas or interest of the majority risk being underrepresented. See Neil Komesar, Law’s Limits: The Rule of Law and the Supply and Demand of Rights 153 (2001).

115 See Coombe, Ives, & Huizenga, supra Footnote note 105, at 214; See also Singhal, supra Footnote note 103, at 737 (expanding on the problem of disagreements between small groups, even families).

116 For a discussion on geographical indications, monopoly rights, and intangible cultural heritage, see Kono, supra Footnote note 13, at 298.

117 Frankel, supra Footnote note 13, at 8.

118 Footnote Id.; see also Singhal, supra Footnote note 103, at 733 (noting that, even though there is a creation of a monopoly right, this right ‘simply limits the class of people who can use a certain symbol’).

119 See Broude, Trade and Culture, supra Footnote note 13, at 674.

120 See Coombe, Ives, & Huizenga, supra Footnote note 105, at 217–218; see also Delphine Vitrolles, When Geographical Indication Conflict with Food Heritage Protection, 8 Anthropology of Food §§ 2831 (2011).

121 Coombe, Ives, & Huizenga, supra Footnote note 105, at 217.

122 Footnote Id. at 218.

123 See Sheldon Garon, From Meiji to Heisei: The State and Civil Society in Japan, in The State of Civil Society in Japan 42, 49 (Frank J. Schwartz & Susan J. Pharr eds., 2003). To name a few, the Japan Lacquer Association (Nihon Shikkoukai) was established in 1891. The Greater Japan Ceramic Industry Association (Dai Nippon Yougyou Kyoukai) was set up in 1892. See Doushin Satou, Modern Japanese Art and the Meiji State: The Politics of Beauty 119 (Hiroshi Nara trans., 2011) (1999).

124 The Wajima Lacquerware Craftsman Association was founded in 1899, but changed its name to Wajima Urushi Ware Commerce and Industry in 1947. See Digital Archives of Ishikawa Japan, History of Wajima Lacquerware, Wajima Lacquerware (last visited 8 March 2015).

125 See Coombe, Ives, & Huizenga, supra Footnote note 105, at 218.

126 See Footnote id. at 214–215.

127 See supra Section 3.1

128 See Footnote id.

129 See supra Section 3.2.

130 See Dwijen Rangnekar, Geographical Indications and Localisation: A Case Study of Feni 2032 (24 September 2009), available at

131 See GI Act, supra Footnote note 8, art. 6.

132 See MAFF, Chiritekihyouji Hogo Seido Moushikomisha Gaidorain [The System for the Protection of Geographical Indications – Guidelines for Applicants] 38 (27 October 2015), available at

133 See Footnote id. at 89.

134 See Footnote id.

135 See, e.g., Rangnekar, supra Footnote note 130, at 31 (indicating that a revision of the application for Feni could include both apples and coconut as raw materials for the product carrying the GI).

136 See, e.g., Footnote id. at 30 (indicating that the GI Feni has been defined as ‘fallen and ripe apples are “normally” used’, indicating that sometimes different approaches could be followed).

137 See GI Act, supra Footnote note 8, art. 6. See also MAFF, Chiritekihyouji Touroku no Moushikomi Houhou ni Tsuite [About the Way how to Apply for Geographical Indications] 6 (27 October 2015), available at

138 See MAFF, supra Footnote note 132, at 56.

139 See Footnote id.

140 Steven Van Uytsel, Philosophies behind the Intangible Cultural Heritage Convention: Equality in Heritage Protection, Community Re cognition and Cultural Diversity 910 (9 February 2012), available at

141 Kono, supra Footnote note 13, at 298.

142 Gangjee, supra Footnote note 1, at n. 60–63.

143 See Kono, supra Footnote note 13, at 298.

144 Gangjee, GIs and Cultural Rights, supra Footnote note 1, at 557. See also Broude, Trade and Culture, supra Footnote note 13, at 623.

145 Fransesca Cominelli, Governing Cultural Commons: The Case of Traditional Craftsmanship in France, (last visited 8 March 2016); see also Gangjee, GIs and Cultural Rights, supra Footnote note 1, at 558.

146 See Federico Lenzerini, Intangible Cultural Heritage: The Living Culture of Peoples, 22 Eur. J. Int. L. 101 (2011).

147 Footnote Id. at 113–114.

148 Hughes, supra Footnote note 11, at 72.

150 Footnote Id. at 76.

152 See GI Act, supra Footnote note 8, arts. 6–7.

153 See, e.g., N.S. Gopalakrishnan, Prabha S. Nair & Aravind K. Babu, Exploring the Relationship between Geographical Indications and Traditional Knowledge: An Analysis of the Legal Tools for the Protection of Geographical Indications in Asia (Geneva: International Centre For Trade and Sustainable Development, Working Paper, 2007).

154 See Steven Van Uytsel, Philosophies behind the Intangible Cultural Heritage Convention: Equality, in Heritage Protection, Community Recognition and Cultural Diversity 89 (9 February 2012), available at

155 See ICH Convention, supra Footnote note 12, art. 12; see also Steven Van Uytsel & Toshiyuki Kono, Intangible Cultural Heritage Identified: Inventories as an Essential Part of the Safeguarding Process, in Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development 113 (Toshiyuki Kono ed., 2009).

156 See Steven Van Uytsel, Inventory Making and Fairy Tales: Safeguarding of Intangible Cultural Heritage in Historical Perspective, in Intangible Cultural Heritage and Intellectual Property: Communities, Cultural Diversity and Sustainable Development 143 (Toshiyuki Kono ed., 2009).

157 See Footnote id. at 143.

158 See MAFF, supra Footnote note 132, at 38.

159 See Footnote id.; but see Gopalakrishnan, Nair & Babu, supra Footnote note 153, at 48–49 (arguing for a strong exception for secrets).

160 Hughes, supra Footnote note 11, at 76–77.