Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications
Author(s):
Gervais, Daniel
Michel Foucault commented that the modern concept of author ‘constitutes a privileged moment of individualism in the history of ideas’. Indeed, the authors who pushed for the adoption of international copyright rules were basking in the sun of the Enlightenment, stroked by the rays of individualism. The underlying Hegelian framework — a transfer of the author’s personality in literary (or artistic) expression — led to an insistence on the right of attribution, a component of the moral right enshrined in the Berne Convention. For inventions, a similar insistence on individual self-actualisation and responsibility for scientific advances is evident. Isn’t the history of science taught in schools around the world centred on individual inventors? Foucault again: “The history of knowledge has tried for a long time to obey [...] the claim of attribution: each discovery should not only be situated and dated, but should also be attributed to someone; it should have an inventor and someone responsible for it.” General or collective phenomena on the other hand, those which cannot be ‘attributed’, are normally devalued: they are still traditionally described through words like tradition, mentality, modes; and one lets them play the negative role of a brake in relation to ‘originality’ of the inventor. While plagium has been frowned upon for centuries, and invention has been around for at least as long (the Babylonians, Aristotle, and so on), individual invention and authorship of well-identified works and inventions — and certainly monetary rewards — emerge as normative precursors and bulwarks of ‘Western’ intellectual property rights. The Berne Convention refers several times to the author (for example, to the ‘life of the author’, which serves as a basis to calculate the term of protection). Similarly, the Paris Convention — though, unlike its Berne cousin, it was written not by authors or inventors but by patent and trade mark office administrators — is infused with the personality of the inventor and steeped in the nineteenth-century Western European zeitgeist. By contrast, many indigenous artists were seen as creating only as part of a collective. As Dan Monroe, Executive Director of the Peabody Essex Museum in Salem, Massachusetts, noted, ‘recognizing that Native American art was made by individuals, not tribes, and labelling it accordingly, is a practice that is long overdue’. There are a few possible exceptions that come to mind, of course, but are they real exceptions in the sense of an abandonment of the premise of individuality? Not really. Most countries recognise collective works in copyright, for example, but then create the fiction that the ‘arranger’ is the author because of the originality she transferred to the collective work. Yet there is one area of intellectual property which bucks this philosophic-cultural trend: the protection of geographical indications (GIs). In fact, it is not entirely clear whether this area is ‘intellectual property’. Its underlying premise is different: it holds that a combination of natural and human (but not individual) factors anchored in (usually longstanding) tradition can give certain products special characteristics. These unique admixtures — sometimes referred to as terroir — are both commercial instruments and symbols of national or regional identity. A system of protection for denominations of origin uses that combination as a marketing tool to extract additional rent in various commercial offerings, but also to affirm the special nature of the place it designates as the origin of a GI product. Put differently, the consumer is asked to pay more (or less) because the GI validates not just the factual claim that a white wine made with Sauvignon grapes will not be the same — even if made by the same person using the same technique — in the Loire valley of France and the Marlborough region of New Zealand, but that its origin reflects both a know-how and natural conditions that make that wine ‘special’. Wine experts agree that the acidity of the soil, and the amount of rain and sun exposure will affect the outcome, but the GI does even more: it recognises a collective right of producers in a given region to claim and capture the (real or perceived) special quality or characteristic of the product. A legal mechanism, namely the 1958 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, was designed to capture that special value and protect it against usurpation or imitation. As such, it could mesh well with forms of traditional innovation and both old and new forms of economic exploitation of traditional knowledge related to crafts or food. It could conceivably extend to other forms of innovation (for example, traditional medicinal products) if one of the perceived characteristics of the product was anchored in a specific region because the land has a special quality, because the inhabitants have a special way of exploiting it, or both. In this chapter, I proceed as follows. I discuss, first, the Lisbon Agreement and then the more recent Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in the WTO context. This rather technical analysis is then broadened to consider how GIs mesh normatively with the protection of traditional innovation. Finally, I suggest possible changes to the Lisbon Agreement, some of which are under consideration at the World Intellectual Property Organization (WIPO), as of the time of writing, that would allow some forms of traditional innovation to benefit from a reform of the international protection of GIs.
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