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:

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

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.

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

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.

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.

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

4 The Geographical Indications Act and Intangible Cultural Heritage

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.