Geographical Indications and Cultural Rights: The Intangible Cultural

Heritage Connection?
Dr. Dev S Gangjee*

1. Introduction: Cultural Heritage as the Bridge?

Can the protection of Geographical Indications (GIs) signs which indicate the
regional provenance of products such as Prosciutto di Parma, Darjeeling and
Cognac be integrated within a cultural rights framework? Since there has been
recent interest in GIs as a potential vector for achieving cultural heritage goals,
this suggests an affinity with cultural rights. To develop this line of enquiry, this
chapter focuses on two threshold issues: (1) To what extent can the notion of
cultural heritage act as a bridge or link between GI and cultural rights protection
paradigms? (2) Alternatively, moving beyond a conventional human rights
framework, are there parallels between GIs and the notion of intangible cultural
heritage (ICH) as recognised in international legal instruments by UNESCO in
particular which could be more fruitfully developed?
In response, Section 2 outlines the basis for the legal protection of GIs and its
potential to accommodate cultural heritage policy agendas. It has been
suggested that GI protection facilitates the recognition of regional or national
cultural heritage.1 By way of an illustration, the legal protection of wine
appellations such as Champagne or Rioja in turn sustains the historic landscapes,
architectural features as well as traditional production practices associated with
vineyards. Appellation protection allows for place branding and where this is
successful, traditional local occupations, modes of production and networks of
sociality for rural communities are better supported. 2 With cultural heritage as
common ground, GIs could potentially interact with cultural rights within a
human rights framework. Consequently Section 3 approaches the interface from
the human rights perspective, first clarifying what is meant by a right to culture
or cultural rights. It then unpacks the relationship between cultural rights and
cultural heritage. If the obligations generated by cultural rights mandate the
protection of both tangible and intangible heritage, then GI protection may be
one possible avenue for fulfilling these legal obligations. Therefore identifying the
** Law Faculty, University of Oxford.
1 See for e.g. A. Kamperman Sanders, Incentives for Protection of Cultural
Expression: Art, Trade and Geographical Indications (2010) 13 Journal of World
Intellectual Property 81, 81 (The capacity of a [GI] to create a global market with
local control over brand, quality and methods of production seems to make it
immensely suitable for preservation of cultural diversity); A. Jokuti, Where is the
What if the What is in Why? A Rough Guide to the Maze of Geographical
Indications (2009) 31 European Intellectual Property Review 118, 120 ([GI
protection helps preserve] local traditions and national culture [by] safeguarding
and maintaining methods of production, processing or manufacturing that would
otherwise be crowded out by mass production).

extent to which both GI protection and cultural rights can incorporate cultural
heritage priorities is a necessary prelude to asking whether the concept of
cultural heritage can act as a bridge between the two legal fields. After reviewing
the possibilities, Section 3 concludes by emphasising the contemporary
limitations of cultural rights arguments when accommodating heritage protection
agendas.
Since directly drawing on existing cultural rights in international and domestic
human rights instruments has limited potential for those interested in heritage
protection, Section 4 investigates an alternative possibility. It identifies
conceptual parallels between the manner in which intangible cultural heritage
(ICH) has been conceived in international legal discourse and the intergenerational, collective interests in GIs. In contrast with mainstream intellectual
property law, which focuses on end-results or objects3 - patentable inventions or
copyrightable books or music both these legal domains share an interest in the
communities and practices that are responsible for creating the resulting objects.
Both ICH and GI regimes have an interest in processes. They value a notion of
(dynamic) tradition and there is an increasingly reflexive engagement with the
categories of culture, heritage and authenticity. The chapter concludes by
suggesting that instead of looking directly to cultural rights as a source of legal
obligations, there is greater scope for cross-fertilisation between geographical
indications regimes and the international protection of intangible cultural
heritage when it comes to working with concepts like tradition and authenticity
at the level of everyday practice.
2. Geographical Indications and Cultural Heritage
The emergence of a cultural heritage argument is a relatively new dynamic in
international GI protection debates. GIs have historically been protected for
reasons similar to those grounding trade mark protection. GIs are considered to
be signs providing information in the marketplace, as the TRIPS definition in Art
22.1 makes clear:
2 The interaction between the natural environment and cultural interventions
over several generations often shapes such landscapes, such as the historic
winemaking practices organised around quintas or estates in Portugal that
implicates regional architectural styles. See T. Andresen & M. J. Curado Shaping
the Future of Cultural Landscape: The Douro Valley Wine Region in H. Palang and
G. Fry (eds), Landscape Interfaces: Cultural Heritage in Changing Landscapes
(Kluwer, Dordrecht 2003) 109. On the economic potential of such landscape
branding strategies and efforts to adapt them outside of Europe, see: A. D.
Alonso and J. Northcote Wine, History, Landscape: Origin Branding in Western
Australia (2009) 111 British Food Journal 1248.
3 For a historical account of how this came about in one influential context, see:
B. Sherman and L. Bently, The Making of Modern Intellectual Property Law: The
British Experience, 1760-1911 (Cambridge University Press, Cambridge 1999).
On the characterisation of such intangible objects, see M. J. Madison, Law as
Design: Objects, Concepts and Digital Things (2005) 56 Case Western Reserve L
Rev 381.

Geographical indications are, for the purposes of this Agreement,

indications which identify a good as originating in the territory of a
Member, or a region or locality in that territory, where a given quality,
reputation or other characteristic of the good is essentially attributable to
its geographical origin (emphasis added).
Granting exclusive rights over such signs prevents cluttered or misleading
signalling in the marketplace, which benefits both consumers and legitimate
producers. Here there are clear parallels with the information efficiency
foundations of trade mark protection. Under both regimes, granting exclusive
rights to the sign prevents consumer deception or confusion as to origin. It
simultaneously shields legitimate producers against this particular type of unfair
competition. An instrumentalist account is the predominant theoretical
justification for this exclusivity, in a marketplace characterised by information
asymmetries.4 In the case of experience or credence goods such as wines or
foodstuffs, asymmetric information exists between buyers and sellers. Without
any way of determining quality in advance, adverse selection is a real concern
for consumers. If left unchecked, low-quality products would drive high-quality
products out of the market. 5 This represents a common type of market failure,
which conventionally requires some form of state intervention. In response,
granting contingent proprietary rights over trade marks enhances efficiency.
These signs reduce consumer search costs by making products easier to identify
in the marketplace prospective purchasers can trust the sign while
encouraging producers to invest in maintaining or improving levels of quality.
Rights to prevent misleading uses ensure that it is trade mark proprietors and
not their rivals, who reap the reputational rewards of that investment. In order to
preserve the communicative integrity of such signs, unauthorised use by third
parties should therefore be prohibited. The relevant GI literature suggests a
similar economic rationale,6 but with an added dimension. These geographical
signs exhibit features of club goods, whereby the right to exclude is enjoyed by
4 W.M. Landes and R.A. Posner, Trade Mark Law: An Economic Perspective
(1987) 30 Journal of Law and Economics 265; N. Economides, The Economics of
Trade Marks (1988) Trademark Reporter 523.
5 G. A. Akerlof, The Market for Lemons: Quality Uncertainty and the Market
Mechanism (1970) 84 Quarterly Journal of Economics 488.
6 See OECD, Appellations of Origin and Geographical Indications in OECD
Member Countries: Economic and Legal Implications December 2000
(COM/AGR/APM/TD/WP(2000)15/FINAL) 7-8, 31-34; D. Rangnekar, The SocioEconomics of Geographical Indications: A Review of the Empirical Evidence from
Europe UNCTA/ICTSD Issue Paper No. 4 (May 2004) 13-16; F. Thiedig and B.
Sylvander, Welcome to the Club? An Economical Approach to Geographical
Indications in the European Union (2000) 49 Agrarwirtschaft 428; C. Bramley
and J.F. Kirsten, Exploring the Economic Rationale for Protecting Geographical
Indicators in Agriculture (2007) 46 Agrekon 69; R. Teuber, Protecting
Geographical Indications: Lessons Learned from the Economic Literature (EEAE
Congress Conference Paper, 2011).

all members of the club. 7 Where a collective reputation is at stake, institutional

mechanisms are required to address collective action problems. It becomes
necessary to establish and police common standards of production, ensuring that
competing members will co-operate to the extent necessary to maintain quality. 8
Otherwise in light of their apparent functional similarity, instrumentalist theory
justifies exclusive rights in a congruent manner for both trade marks and GIs.
Turning to the content of these exclusive rights, under Art 22 of TRIPS all GIs are
protected against uses which mislead the public as to the origin of the product
(Art 22.4); uses which constitute unfair competition (Art 22.2(b)); or the
registration of a trade mark that misleads the public as to the origin of the goods
(Art 22.3). By contrast, under Art 23 wines and spirits are granted significantly
higher levels of protection. Here even qualified use which may not mislead
(Champagne-style wine or Cognac made in Peru) is prohibited (Art 23.1) and
trade mark registrations shall be refused or invalidated if the associated wine or
spirit is not produced in the eponymous region, without having to prove
consumer confusion (Art 23.2). Since an established justificatory account already
exists for some degree of exclusive protection, it is worth asking why the cultural
heritage basis becomes possible or necessary in international GI protection
debates. In previous research, 9 I have explored three intersecting lines of
analysis associated with a heritage rationale. (1) Since GI protection was
historically associated with agricultural products, where natural conditions such
as soil and climate play an important role, how was the space created for a
cultural heritage argument? (2) As a practical matter, how are aspects of cultural
heritage incorporated within GI protection regimes? (3) What additional
justificatory work does this heritage rationale do, to supplement the information
efficiency rationale described above? What follows is a brief recapitulation of the
first two aspects, which are relevant for this chapter.
First, taking wine as the exemplar, GI products have historically been conceived
of in natural terms, so under what conditions did cultural aspects emerge? A
response can be usefully developed by analysing transformations in the legal
regulation of wine appellations in France across the 19 th and 20th centuries, since
this regime has proved enormously influential over time. Early attempts to
regulate false labelling of French wines were premised on ensuring the veracity
of the place of origin. The initial Appellation dOrigine system developed around
a notion of terroir that privileged physical geography geological and climatic
7 Club goods are impure public goods characterized by partial excludability, no
or partial rivalry of benefits, and congestion phenomena. J. M. Buchanan, An
Economic Theory of Clubs [1965] Economica 1.
8 C. Bramley, E. Bienabe and J.F. Kirsten, The Economics of Geographical
Indications: Towards a Conceptual Framework for Geographical Indications
Research in Developing Countries in WIPO, The Economics of Intellectual
Property (WIPO, Geneva 2009) 109, 113.
9 D. Gangjee Geographical Indications and Cultural Heritage (2012) 4 WIPO
Journal 92; D. Gangjee, Relocating the Law of Geographical Indications (CUP,
Cambridge 2012) 77-126.

factors. It was thought that quality could be guaranteed and fraud prevented by
merely ensuring that wines actually originated from the places indicated on their
labels, since physical place (immovable and locally unique nature) was
responsible for producing the grapes that led to this quality. However the very
act of delineating such distinctive parcels of place proved economically,
politically and even scientifically divisive, while the impact of human factors and
production techniques on end quality came to be increasingly appreciated.
Therefore the importance of locally specific savoir faire, including both technical
and cultural components, came into focus. Technologies and associated cultures
of production usually designed around the particularities of local conditions and
capabilities took their place alongside natural factors in the Appellation
dOrigine Contrle regime which followed.10 This called for a series of
recalibrations in the articulation of the link between product, people and place,
as terroir was broadened out.11 One important consequence of recognising the
human dimension was the expansion of subject matter, whereby GI regimes
could accommodate recipe-based products (for e.g. charcuterie, cakes and
pies)12 or even textiles and crafts.13
All these products are conventionally understood as having cultural heritage
dimensions. As far as symbolic representation goes, it is acknowledged within
the legal literature that local products can be emblematic of regions or even
countries of origin.14 This tracks the approach found within the anthropological
study of food as a symbolic system, which is a well-developed field of research. 15
10 The matter is debated in: B. Parry B., Geographical Indications: Not All
Champagne and Roses and D. Gangjee (Re)Locating Geographical Indications: A
Response to Bronwyn Parry in L. Bently, J.C. Ginsburg and J. Davis (eds.), Trade
Marks and Brands: An Interdisciplinary Critique (Cambridge University Press,
2008) 361, 381.
11 Several contributions on the theme of Rethinking Terroir can be found in R.
E. Black and R. E. Ulin (eds), Wine and Culture: Vineyard to Glass (Bloomsbury
2013).
12 D. Gangjee, Melton Mowbray and the GI Pie in the Sky: Exploring
Cartographies of Protection [2006] Intellectual Property Quarterly 291.
13 D. Marie Vivien, The Protection of Geographical Indications for Handicrafts or
How to Apply the Concepts of Natural and Human Factors to All Products (2013)
4 WIPO Journal 191
14 F. Addor & A. Grazioli, Geographical Indications beyond Wines and Spirits: A
Roadmap for a Better Protection for Geographical Indications in the WTO/TRIPS
Agreement (2002) 5 Journal of World Intellectual Property 865, 865 (GIs convey
the cultural identity of a nation, region or specific area).
15 An excellent review is provided by Sidney W. Mintz and Christine M. Du Bois,
The Anthropology of Food and Eating (2002) 31 Annual Review of Anthropology
99.

For instance, rituals of consumption (and conversely, taboos) have been well
documented where a ritual meal binds people to their faith or reaffirms their
relationship with other members of the same group. Additionally, eating may be
intimately linked to identity where food serves to consolidate group membership
as well as distinguish between groups. Food and drink therefore tangibly
reinforces regional, ethnic or national identities. To the extent that traditional GI
products (often quite literally) feed in to regional or national identity formation,
they are symbolic raw material. However critics such as Tomer Broude stress that
when identity reinforcement projects draw on tradition for legitimacy, the risk of
mythmaking and associated exclusion of groups or practices is ever present. 16
Amongst the most illuminating studies are those of Champagne and
Camembert,17 both as distinctive markers of national identity but also as
invented traditions.18 Despite this, an awareness of their emergence as social
constructs does not detract from their potency as cultural symbols.
Having outlined the trajectory by which GIs came to be seen as having a cultural
component, we can proceed to the second aspect the extent to which the
operational architecture of GI protection responds to heritage recognition
concerns. Protected GI status certainly helps at the symbolic or representational
level, as described above, by granting exclusive rights to Ethiopian coffee or
Darjeeling tea and reinforcing their status as national champions. However GIs
are not the preferred tool of choice for protecting the content of a cultural
practice or the resulting product for e.g. the techniques for carving a wooden
toy or the sparkling wine that results from double fermentation. The scope of
protection under GI regimes is restricted to preventing the misuse of the
geographical name of a region or an associated image, such as the ducal crown
of Parma Ham or the female leaf pickers stylised profile for Darjeeling. 19 To that
extent, GI protection is more akin to trade marks, rather than trade secrets,
patent or copyright. Therefore it is helpful to think of GI protection as a
mechanism for indirectly, yet meaningfully, sustaining certain cultural practices.
16 T. Broude, Taking Trade and Culture Seriously: Geographical Indications and
Cultural Protection in WTO Law (2005) 26 University of Pennsylvania Journal of
International Economic Law 623.
17 K. M. Guy, When Champagne Became French: Wine and the Making of a
National Identity (Baltimore: Johns Hopkins University Press, 2003); P. Boisard,
Camembert: A National Myth (Berkeley: University of California Press, 2003).
18 The standard reference point is E. Hobsbawm and T. Ranger (eds), The
Invention of Tradition (Cambridge University Press, Cambridge 1983) 1
(Invented tradition is taken to mean a set of practices, normally governed by
overtly or tacitly accepted rules and of a ritual or symbolic nature, which seek to
inculcate certain values and norms of behaviour by repetition, which
automatically implies continuity with the past).
19 See respectively http://www.prosciuttodiparma.com/en_UK/ and the successful
Darjeeling registration application filed before the Indian Geographical
Indications Registry, as published in the Geographical Indications Journal (1 Jul
2004) Vol 1, at: http://ipindia.nic.in/girindia/.

Legal recognition as a GI helps with place branding campaigns and if this is

successful, domestic or international markets reward the producer collective. But
beyond the branding and representational aspects, how else can GI protection be
relevant?
Much of the interest in GIs as cultural vectors has emphasised their symbolic and
commercial value, associated with the consumption of regional products. Yet the
procedure for formal recognition as a GI has a potentially more significant
impact, when identifying collectively developed production practices. Most
contemporary GI systems are registration based and require a product
specification, also referred to as a code of practice or cahier des charges. This
contains details such as the products name, a product description including
distinctive chemical or organoleptic characteristics, delimitation of the
production area, officially prescribed raw materials and production techniques, as
well as labelling and inspection requirements. 20 The product specification
therefore becomes an important site where heritage is identified and negotiated.
According to one view, the cultural significance of this process is evident at an
early stage, when producer groups begin to collectively engage with the drafting
of a product specification. The collective interest in the origin-linked product
potentially strengthens social linkages between local actors during this process,
while the promotion of an origin-linked product increases self-esteem among
local actors as their identity and related way of life is recognised and valorised. 21
While such negotiations can develop or sustain networks of collaboration and
build social capital within a region, the drafting process could also produce the
exact opposite result, leading to divergences and dissent. 22 In terms of the
content of the specification, the interaction between biodiversity conservation
and (cultural) production techniques has been noted. A GI scheme can also help
protecting important elements of local cultural heritage, for instance traditional
production methods and recipes, endangered animal breeds, or indigenous
vegetables.23 As experienced researchers Berard and Marchenay have noted,
local breeds, plant varieties, landscapes and microbial ecosystems are all
expressions of collective skills, practices and adaptations. These may vary with
the type of production, which in turn depends on the social and environmental
context.24 They refer to the chestnut groves of Ardche in France, where
20 For details, see FAO and SINER-GI, Linking People, Places and Products: A
Guide for Promoting quality Linked to Geographical Origin and Sustainable
Geographical Indications 2nd ed (FAO, Rome 2009-2010) 49-92.
21 Ibid 23.
22 London Economics et al, Evaluation of the CAP Policy on Protected
Designations of Origin (PDO) and Protected Geographical Indications (PGI)
(Final Report for the European Commission, November 2008) 245.
23 Ibid, 245-246.
24 L. Berard and P. Marchenay, From Localized Products to Geographical
Indications: Awareness and Action (CNRS, Bourg-en-Bresse 2008) 54

chestnut production grew to be the defining factor in community life and cultural
heritage. The sheer extent and density of the Ardche chestnut groves shaped
the landscape, testifying to a culture, civilization and local production system
that were inseparable from this particular terroir. 25 A recent study is appreciative
of the collective, intergenerational transmission processes associated with
successful GIs, concluding that a GI product is the outcome of the traditions and
know-how of many people in the zone over a long period of time. It is tied to a
community and has a heritage dimension.26
Various cultural norms are associated not only with production practices but also
with the oral traditions surrounding a local product. These norms can function to
signal demarcations between social groups or help integrate the product with
social occasions.27 Regional specialities and well known products can also act as
the focal points for fairs, festivals and other cultural events which are used to
promote a regions distinct identity. 28 These initiatives can be synchronised with
general tourism promotion strategies which showcase local heritage. 29 By
formally recognising certain agricultural practices for instance, free range
animals requiring open spaces or systems of terraced cultivation GI
specifications could help sustain traditional landscapes, experienced as libraries
of local history as well as living laboratories for experimentation. 30 Therefore
heritage dimensions can be acknowledged at several stages within the GI
protection process. Nevertheless, it is worth emphasising that a product
specification only potentially accommodates cultural practices the choice is left
to the various actors involved with the production process for any given product.
The formal availability of GI registration does not ensure the incorporation of
heritage elements. This will ultimately depend on how the system is used. To
facilitate more effective product specification drafting, attempts are underway to
25 Ibid 38.
26 A. Lecoent, E. Vandecandelaere & J-J Cadilhon, Quality Linked to Geographical
Origin and Geographical Indications Lessons Learned from Six Case Studies in
Asia (FAO RAP Publication 2010/04) 181.
27 See Ch 3 of D. Rangnekar Geographical Indications and Localisation: A Case
Study of Feni (ESRC Report 2009).
28 London Economics et al, Evaluation of the CAP Policy, 246-251.
29 J. Suh & A. MacPherson The Impact of Geographical Indication on the
Revitalisation of a Regional Economy: A Case Study of "Boseong" Green Tea
(2007) 39 Area 518.
30 I. B. Thompson The Role of Artisan Technology and Indigenous Knowledge
Transfer in the Survival of a Classic Cultural Landscape: The Marais Salants of
Gurande, Loire-Atlantique, France (1999) 25 Journal of Historical Geography
216. R. L. Barsh, How Do You Patent a Landscape? The Perils of Dichotomizing
Cultural and Intellectual Property (1999) 8 International Journal of Cultural
Property 14.

share best practices and document successful case studies, where the drafting
process has been responsive to collective action dynamics, demands for the
equitable distribution of economic benefits and heritage concerns. 31 It is hoped
that this empirically informed, inductive and bottom up approach will help
deliver tangible benefits. Thus heritage is relevant both at the level of symbolic
significance, where GIs operate as cultural resources for identity formation, as
well as within the drafting of the GI product specification when traditional modes
of production are stabilised and sustained.
3. Cultural Rights and the Accommodation of Cultural Heritage
While cultural rights are a clearly established category in international human
rights law, understanding their precise relationship with cultural heritage is very
much a work in progress. Before elaborating further on the reasons for this, two
preliminary clarifications are appropriate. First, there is a general preference for
the label cultural rights rather than a singular right to culture. 32 Although there
is occasional usage of the latter, culture in and of itself, has not often been
articulated as a free standing human right; rather, it is commonly understood as
an underlying principle of human rights law with which other rights overlap. 33
Second, cultural rights can be used in a broader or narrower sense. In the broad
sense they include rights which could incidentally or directly relate to culture,
such as the right to life, including private life; freedom of thought, conscience
and religion; freedom of expression; freedom of association; the right to
education and so on.34 In the narrower sense, cultural rights emerged as part of
the so-called second generation of human rights and include the right to take
part in cultural life; the right to enjoy the benefits of the arts and scientific
progress; the right to benefit from ones creative (authorial) works; and the right
to enjoy the measure of freedom which is indispensable for scientific research
and creative activity.35 This narrower sense of cultural rights is the one adopted
here.

31 For e.g. Cerkia Bramley, Estelle Binabe & Johann Kirsten (eds), Developing
Geographical Indications in the South: The Southern African Experience
(Springer, 2013); FAO and SINER-GI, Linking People, Places and Products (n 20);
E. Barham & B. Sylvander, (eds) Labels of Origin for Food (CABI, 2011) 157-195.
32 E. Stamatopoulou. Cultural Rights in International Law: Article 27 of the
Universal Declaration of Human Rights and Beyond (Martinus Nijhoff Publishers,
Leiden/Boston 2007) 110.
33 M. Hadjioannou, The International Human Right to Culture: Reclamation of
the Cultural Identities of Indigenous Peoples Under International Law (2005) 8
Chapman Law Review 201, 204.
34 Katja Ziegler Cultural Heritage and Human Rights (Oxford Legal Studies
Research Paper Series; No 26/2007) 13; Fergus MacKay, Cultural Rights, in M. E.
Salomon (ed) Economic, Social And Cultural Rights: A Guide For Minorities And
Indigenous Peoples 83, 83 (Minority Rights Group International, 2005) 83, 83.

Commentary on cultural rights usually commences with the

Declaration of Human Rights 1948 (UDHR) 36 and Art 27 in particular:37

Universal

(1) Everyone has the right freely to participate in the cultural life of the
community, to enjoy the arts and to share in scientific advancement and
its benefits.
(2) Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of
which he is the author.
These commitments are re-emphasised in Art 15 of the International Covenant
on Economic, Social, and Cultural Rights 1966 (ICESCR): 38
1. The States Parties to the present Covenant recognize the right of
everyone:
(a) To take part in cultural life;
(b) To enjoy the benefits of scientific progress and its applications;
(c) To benefit from the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is
the author.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for
the conservation, the development and the diffusion of science and
culture.
3. The States Parties to the present Covenant undertake to respect the
freedom indispensable for scientific research and creative activity.
4. The States Parties to the present Covenant recognize the benefits to be
derived from the encouragement and development of international
contacts and co-operation in the scientific and cultural fields.
However it is with Art 27 ICESCR that a transition is evident, where the focus
shifts from individuals to groups:
In those states in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their culture,
to profess and practice their religion, or to use their own language.
Art 27 is therefore notable since the other cultural rights are characterised as
individual rights. In general, cultural rights in the narrow sense are related to
35 A. Yupsanis, The Concept and Categories of Cultural Rights in International
Law Their Broad Sense and the Relevant Clauses of the International Human
Rights Treaties (2010) 37 Syracuse Journal of International Law and Commerce
207, 219.
36 G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948).
37 UDHR Arts 22 (an obligation for States to realize economic, social and cultural
rights) and 29 (limitations) are also relevant.
38 (1967) 6 ILM 363

individual identity and the development of a personality, linking cultural rights

and human dignity. Although they are conceptualised as individual rights, they
may have a collective connotation where the exercise of a cultural right requires
communication, similar to the right of assembly. In contrast to the concept of a
cultural heritage, they do not make reference to cultural identity, especially not
that of a group.39 This aspect is problematic since heritage claims inevitably
involve groups.
Despite their decades-long existence cultural rights in the narrow sense have
been relatively neglected,40 while they continue to be controversial. Yupsanis
accounts for their relative neglect by contrasting them with the categories of
civil, political, economic and social rights, which were prioritised within an
ideological context framed by Cold War exigencies. This resulted in a weak
political commitment to enforce such rights. 41 They are also controversial
primarily for three reasons. First, if the international human rights project is
premised on universalist normative foundations, cultural rights emphasise the
differences and distinctive features of groups, which generates normative
tension. Universalism asserts that every human being has certain human rights
by virtue of being human human rights are inalienable and meant to protect
human dignity and all persons should equally enjoy them The relativist position
reflects the empirical fact that there is an immense cultural diversity in the
world, including diverse views about right and wrong. Cultural relativism,
accordingly, claims that there are no universal human values and that the
variety of cultures implies that human rights can, and may, be interpreted
differently.42 A relativistic approach is also premised on the ability to identify
individuals as members of a clearly defined group, as a received category, in an
essentialising manner. Second, there is concern that the recognition of
indigenous and minority cultural identities could lead to tensions within national
polities, including separatism, tribalism or ethno-nationalism. 43 Third, much turns
upon the particular notion of culture which informs cultural rights. This has
cycled through various iterations in recent decades.
Yupsanis identifies three distinct approaches to culture in international legal
instruments.44 In the first case, culture is perceived in material terms, as the
accumulated heritage of humanity as a whole or of particular groups. Here
cultural rights would mandate equal access to this cultural capital. In the second
39 Ziegler Cultural Heritage and Human Rights (n 34) 11.
40 J. Symonides, Cultural Rights: A Neglected Category of Human Rights, (1998)
158 International Social Science Journal 595.
41 Yupsanis (n 35) 207-209.
42 Y. Donders, Do cultural diversity and human rights make a good match?
(2010) International Social Science Journal 15, 16.
43 Yupsanis (n 35) 225-226.
44 Ibid 212.

case, it refers to the processes of scientific and artistic creativity, whereby

individuals create culture. Cultural rights should therefore enable both the
freedom to create and the freedom to access the resulting creations. Historically,
culture was restricted to high art under this approach. The third approach is
aligned with an anthropological perspective and views culture as emergent and
relational; as the sum of material and intellectual activities and practices of a
group that distinguishes them from other groups. The preamble to the UNESCO
Universal Declaration on Cultural Diversity 2001 45 adopts this approach, when it
reaffirms that culture should be regarded as the set of distinctive spiritual,
material, intellectual and emotional features of society or a social group, and
that it encompasses, in addition to art and literature, lifestyles, ways of living
together, value systems, traditions and beliefs. Such an approach liberates
culture from a dependence on material objects and acknowledges practices as
well as symbolic systems. This conception of culture in turn allows for a related
notion of cultural heritage which is dynamic.
Even this limited prcis suggests that cultural rights are relatively
underdeveloped. Yet despite the relative neglect, potential conflict with
universalist commitments and definitional ambiguities remain, cultural rights
have experienced a resurgence as the pace of globalisation, with its
homogenising tendencies, intensifies and cultural diversity is correspondingly
valued.46 Of particular interest are recent attempts to situate cultural heritage
protection within a human rights paradigm. Cultural heritage is seen both as a
problem for human rights and also as having certain synergies with human rights
goals. The following description emphasises its political and ideological
dimensions as well as its functional significance in group identity formation:
Implying certain relationships between history, memory and identity
heritage is a set of present day ideas and practices referring to and
utilizing the past. As such, it has come to be valued as a versatile medium
of social, cultural and political recognition, as underpinning claims for
rights, as well as a potential source of cultural exchange and economic
and touristic development Heritage is a term of the present and works
by mobilizing selected pasts and histories in the service of present-day
agendas and interests.47
Heritage is problematic for its relativistic as opposed to universalist orientation,
as described above. Since individuals belong to cultural groups, there is the
potential for a collision between the desire for cultural self-determination by one
group and the claim of universal human rights principles on the part of different
45 (2002) 41 ILM 57.
46 William Logan, Michele Langfield and Mirad Nic Craith, Ch 1: Intersecting
Concepts and Practices in William Logan, Michele Langfield and Mirad Nic
Craith (eds), Cultural diversity and Human Rights: Intersections in Theory and
Practice (Routledge, London & New York 2010) 4.
47 Mads Daugbjerg and Thomas Fibiger Introduction: Heritage Gone Global.
Investigating the Production and Problematics of Globalized Pasts (2011) 22
History and Anthropology 135, 135-136.

and competing groups or the overarching nation-state. 48 This raises the

possibility that the cultural rights of the group may conflict with the other human
rights of individual members of that cultural group (e.g. where certain traditional
practices discriminate against women or cause harm to children). 49 On the
positive side of the ledger, heritage informs cultural identity, which in turn
underpins human dignity. To take one example, UNESCOs Declaration
Concerning the Intentional Destruction of Cultural Heritage 2003 states in its
preamble that, with reference to monuments, cultural heritage is an important
component of the cultural identity of communities, groups and individuals, and or
social cohesion, so that its intentional destruction may have adverse
consequences on human dignity and human rights. 50 As Ziegler puts it,
[c]ultural identity is part of an individuals personality and therefore, has a close
relationship with, and is an element of an emerging right to human dignity The
partly shared rationale of cultural heritage protection and human rights might
lead to an alignment of cultural heritage with human rights, which might help
raising cultural heritage to the level of subjective rights to cultural heritage. 51
Protecting cultural heritage also facilitates the advancement of cultural
diversity52 as well as being a prerequisite for notions of development based on
the freedom to participate in the cultural life of a community, 53 or development
enabled by ensuring sustainable livelihoods. 54 The diversity aspect is reflected in
Art 5 of the UNESCO Universal Declaration on Cultural Diversity 2001: 55 Cultural
rights are an integral part of human rights, which are universal, indivisible and
interdependent. The flourishing of creative diversity requires the full
48 H. Silverman and D. Fairchild Ruggles, Ch 1: Cultural Heritage and Human
Rights, in H. Silverman and D. Fairchild Ruggles (eds), Cultural Heritage and
Human Rights (Springer 2007) 3, 4.
49 F. Francioni, Culture, Heritage and Human Rights: An Introduction in F.
Francioni and M. Scheinin (eds), Cultural Human Rights (Martinus Nijhoff, Leiden
2008) 1, 3-6.
50 Adopted by the 32nd session of the UNESCO General Conference, Paris, 17
October 2003.
51 Ziegler Cultural Heritage and Human Rights (n 34) 12.
52 J. Blake 'On Defining the Cultural Heritage' (2000) 49 International and
Comparative Law Quarterly 61 (Artefacts associated with heritage both represent
a community and are the means by which culture is transmitted across time,
thereby helping to recreate the community).
53 M. Sunder, Intellectual Property and Development as Freedom in N. W.
Netanel, The Development Agenda: Global Intellectual Property and Developing
Countries (London: Oxford University Press, 2009) 453.
54 Toshiyuki Kono, ed, Intangible Cultural Heritage and Intellectual Property:
Communities, Cultural Diversity and Sustainable Development (Antwerp:
Intersentia, 2009).

implementation of cultural rights []. Ultimately, this suggests that while

cultural heritage values may overlap with foundational values such as dignity
and diversity associated with human rights, the detail is yet to be worked out. At
present there is limited scope for channelling cultural heritage claims through
legally enforceable cultural rights.
4. Intangible Cultural Heritage
With the present limitations of cultural rights based claims becoming more
apparent, the need for alternative approaches is evident. Here recent
developments in the international recognition of intangible cultural heritage (ICH)
may be instructive. Some scholars have begun to acknowledge the symmetries
between formal recognition as a GI and as ICH. 56 Brazilian researchers have
identified the strategic potential for GI protection for the clay pots of Goiabeiras,
from the Brazilian state of Espirito Santo. The artisanal production of pots was
formally recognised as ICH under Brazilian law in 2002, but further recognition as
a GI will assist during promotion campaigns as well as provide protection in
international markets.57 A recent EU Report investigating the different methods of
GI protection for non-agricultural products notes that the gunsmiths of Ferlacher
Waffen (guns and hunting weapons) are formally recognised as part of the
intangible cultural heritage of Austria. 58 Therefore what are the most productive
avenues of research for analysing the overlaps between GI protection and ICH
recognition? This chapter concludes by considering two possibilities.
First, there is the potential for GI protection to give effect to obligations under the
Convention for the Safeguarding of the Intangible Cultural Heritage 2003.
According to Art 2(1), ICH 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. This intangible cultural
heritage, transmitted from generation to generation, is constantly recreated by
communities and groups in response to their environment, their interaction with
nature and their history, and provides them with a sense of identity and
continuity, thus promoting respect for cultural diversity and human creativity.
55 Resolution adopted on the report of Commission IV at the 20th plenary
meeting, on 2 November 2001
56 Rosemary J Coombe, Nicole Aylwin Bordering Diversity and Desire: Using
Intellectual Property to Mark Place-Based Products (2011) 49 Environment and
Planning A 2027, 2029.
57 Elizabeth Ferreira da Silva and Patricia Pereira Peralta Collective Marks and
Geographical Indications Competitive strategy of Differentiation and
Appropriation of Intangible Heritage (2011) 16 Journal of Intellectual Property
Rights 246. See also Insight Consulting et al, Study on the Protection of
Geographical Indications for Products Other Than Wines, Spirits, Agricultural
Products or Foodstuffs (European Commission DG Trade, Nov 2009) 87.
58 Insight Consulting et al, Study on Geographical Indications Protection for NonAgricultural Products in the Internal Market (Final report, 18 February 2013) 118.

An illustrative list in Art 2(2) covers domains such as oral traditions and
expressions, social practices and rituals, knowledge and practices concerning
nature and traditional craftsmanship. Several aspects of the definition
correspond to the collective processes by which GIs are created, as well reasons
why they are valued by local communities. Ground for the Convention was laid
by transformations in the manner in which both culture and material heritage are
conceived, as well as the incompleteness of a material culture paradigm. Some
of the conceptual shifts included: rejecting any universal (read Western)
definition of cultural authenticity in favour of a contextual appreciation; deemphasising permanence and materiality; a shift from static preservation
associated with objects to living heritage associated with people, in ecological
terms; an epistemological shift from the nation state as legitimate guardian of
cultural heritage to include the community or group which actively maintains the
heritage site; the related recognition of groups as rightsholders; and recognition
that monuments, objects, and performances were endowed with meaning by
virtue of their relation to the present. 59 In terms of the outcomes sought and the
corresponding obligations on signatories, Art 2(3) clarifies that safeguarding
means measures aimed at ensuring the viability of the intangible cultural
heritage, including the identification, documentation, research, preservation,
protection, promotion, enhancement, transmission, particularly through formal
and nonformal education, as well as the revitalization of the various aspects of
such heritage. The commitments undertaken by signatories are further
elaborated upon in Arts 11-13. These include identifying ICH with a view to
safeguarding it, drawing up inventories and adopting a general policy aimed at
promoting the function of the intangible cultural heritage in society. In
appropriate cases, such as those involving craft or textile products which have
the intergenerational relevance for collective identity formation, GI protection
and promotion could be one avenue for sustaining a vital community and living
heritage. GI regimes could be included as one of the options within ICH
recognition strategies.
The second possibility is less obvious but has considerable potential. Insights
from ICH theorising, methodology and practice could inform GI protection
frameworks which also have to work with categories like tradition and
authenticity. It is common to find assertions that at the conceptual core of GIs
is a claim about authenticity and heritage. 60 Registration as a GI is supposed to
guarantee authenticity,61 whereupon such symbols transmit and guarantee to
the consumer the values concentrated therein, which may include up to
hundreds of years of traditional artisan craftsmanship and the region's particular
natural and environmental characteristics, which are embedded into the specific
59 See D. Fairchild Ruggles & H. Silverman, From Tangible to Intangible Heritage
in D. Fairchild Ruggles & H. Silverman (eds), Intangible Heritage Embodied
(Springer, 2009) 1; Noriko Aikawa-Faure From the Proclamation of Masterpieces
to the Convention for the Safeguarding of Intangible Cultural Heritage in
Laurajane Smith and Natsuko Akagawa (eds), Intangible Heritage (Routledge,
2009) 13.
60 K. Raustiala and S. R. Munzer, The Global Struggle over Geographical
Indications (2007) 18 European Journal of International Law 337, 346.

product.62 This aspect has also been recognised by courts: For consumers, the
link between the reputation of the producers and the quality of the products also
depends on his being assured that products sold under the designation are
authentic.63 If the GI registration process is about identifying a stabilized,
historically validated production method, how is change to be accommodated
within the limits of tradition and authenticity?
GI critics such as Broude64 plausibly argue that frequent claims to timeless
tradition in the GI context are overstated; yet this does not exhaust the
argument. In fact, the setting up of tradition as somehow frozen and in
opposition to change is itself artificial. 65 The scholarship that has developed
around ICH stresses that as opposed to being fixated on the material product, it
is the process and producers over time which are equally deserving of our
attention; the tangible is only a manifestation of the intangible. While the
intangible only receives expression by means of the tangible, the tangible only
has meaning because of the intangible elements. 66 Change is possible if our
understanding of authenticity no longer refers to a certain idea of antiquity, but
designates a strong link with a specific community In this sense, traditional
craftsmanship becomes heritage when it is recognized as such by the individuals,
the groups and the communities that create, maintain and transmit it. The skills
and knowledge that are inherited from the past live in the present in the body of
craftsmen that hold them and are passed on to future generations. As
expressions of intangible cultural heritage, traditional craftsmanship is strongly
related to the space and time where it takes place, and it is continuously
transformed and innovated upon (emphasis added). 67 This brings into focus the
importance of intergenerational transmission and the active interpretation of the
past by a specific community that is involved in identifying its traditions. The
61 J. van Niekerk, The Use of Geographical Indications in a Collective Marketing
Strategy: The Example of the South African Wine Industry 1 September1999
(WIPO/GEO/CPT/99/8) 5 (To be part of a successful collective marketing strategy,
the authenticity of geographical indications needs to be guaranteed, controlled
and protected).
62 P. Zylberg, Geographical Indications v. Trade Marks: The Lisbon Agreement: A
Violation of TRIPS? (2002-2003) 11 University of Baltimore Intellectual Property
Law Journal 1, 3.
63 Ravil SARLv.Bellon Import SARL (C-469/00) [2003] ECR I-5053; [2004] ETMR
22 at [49] (ECJ) (Grana Padano)
64 Broude (n 16).
65 For an example of a series of incremental technical and commercial
innovations in Italian Murano glassmaking over several centuries, see F.
Trivellato, Murano Glass, Continuity and Transformation (1400-1800) in P. Lanaro
(ed), At the Centre of the Old World: Trade and Manufacturing in Venice and the
Venetian Mainland, 1400-1800 (University of Toronto, 2006) 143.
66 L. Lixinski, Intangible Cultural Heritage in International Law (OUP, 2013) 19.

concept of intangibility points, among other things, to investigations focused on

the workings of cultural transmission and reproduction. In contrast with material
artefacts, intangible creations endure only through active, socially maintained
processes of transmission from older to younger practitioners. These
transmissions usually involve training and apprenticeships, sizeable investments
of time and energy that must be meaningful and rewarding for this who
undertake them.68 Thus tradition may be reinterpreted to such a point that
some techniques, despite their significance, are lost for good. Usage and
tradition alike are partly dependent on the knowledge that a community decides
to pass on.69 As opposed to demands that the content of product techniques
remains fixed, the enquiry shifts its focus to the manner in which the techniques
have been acquired (the historical context of transmission) and the manner in
which they are used. Recognising the significance of intergenerational
transmission as an aspect of continuity creates the space for transformations
within methods of production and is just one illustration of the potential for
interactions between ICH recognition and GI protection.
5. Conclusion
The growing number of references to cultural heritage within GI protection
debates suggests that GI protection could potentially be integrated within a
cultural rights framework. To investigate this possibility this chapter first
considered the extent to which GIs can accommodate aspects of cultural
heritage. Both at the symbolic level where GIs act as national or regional
champions and feed in to the formation of collective identities (e.g. Champagne
being emblematic of Frenchness) and at the level of product specification
drafting, which reflects the underlying processes and human interactions, there
is potential for recognising cultural heritage dimensions. Next, the content and
nature of (narrowly defined) cultural rights was outlined. For a number of
reasons, including their relative neglect within human rights discourse,
controversial nature and emphasis on the rights of individuals as opposed to
groups, they have only limited potential for achieving heritage protection goals.
Therefore a more promising avenue may be to consider the synergies between
UNESCO initiatives for the international protection of intangible cultural heritage.
Here GIs may be one pragmatic implementation option to satisfy the obligations
under Arts 2 and 11 to 13 of the Convention of 2003. However it is the scope for
cross-fertilization at the conceptual level when putting into practice concepts
like heritage, tradition and authenticity that has untapped potential and
could be developed in the future.
67 Francesca Cominelli, Governing Cultural Commons: The Case of Traditional
Craftsmanship in France (13th International Association for the Study of the
Commons Conference, Hyderabad 2011) 8.
68 Mary Louise Pratt, Thoughts on Intangibility and Transmission in Lourdes
Arizpe and Cristina Amescua (eds), Anthropological Perspectives on Intangible
Cultural Heritage (Springer 2013) 79, 79.
69 L. Berard and P. Marchenay, From Localized Products to Geographical
Indications: Awareness and Action (CNRS, Bourg-en-Bresse 2008) 32-33.