Intellectual Property and Traditional

Knowledge in the Global Economy

Arising from recent developments at the international level, many develop-

ing countries, indigenous peoples and local communities are considering
using geographical indications to protect traditional knowledge and to
promote trade and overall economic development. Despite the consider-
able enthusiasm over geographical indications in diverse quarters, there is
an appreciable lack of research on how far and in what context they can
be used as a protection model for traditional knowledge-based resources.
This book critically examines the potential uses of geographical indica-
tions as models for protecting traditional knowledge-based products and
resources in national and international intellectual property legal frame-
works. By analysing the reception towards geographical indications from
developing countries and advocates of development in the various legal
and non-legal regimes (including the World Trade Organization, the World
Intellectual Property Organization, the Convention on Biological Diversity
and the Food and Agriculture Organization), the book evaluates the devel-
opment potential of geographical indications in relation to ensuing changes
in international intellectual property law in accommodating traditional
knowledge. Teshager W. Dagne argues for a degree of balance in the
approach to the implementation of global intellectual property rights in a
manner that gives developing countries an opportunity to protect tradi-
tional knowledge-based products.
The book will be of great interest and use to scholars and students of
intellectual property law, public international law, traditional knowledge
and global governance.

Teshager W. Dagne is Assistant Professor at Thompson Rivers University,

Canada.
Routledge Research in Intellectual Property

Available:

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Intellectual Property in Global Governance

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Copyright Expansion and the Publishing Industry
Jiabo Liu

Health Technologies and International Intellectual Property

A Precautionary Principle
Phoebe Li

Intellectual Property, Traditional Knowledge and Cultural Property

Protection
Cultural Signifiers in the Caribbean and the Americas
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Forthcoming:

Intellectual Property and Conflict of Laws

Moral Rights and Alternatives to the Copyright Qualifications
Hanan Almawla

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Translating Geographical Indications for Development
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‘This book is an important contribution that brilliantly maps out the
complex intersections of Intellectual Property Rights and development
within the site of one of the most underdeveloped and underestimated
regimes of IPRs.’
Chidi Oguamanam, Professor of Law, University of Ottawa

‘This carefully researched book is a rare attempt to examine the role

geographical indications can play in protecting traditional knowledge. The
analysis is timely, balanced and insightful, and it captures well the ongoing
international debate. The book should be of interest to anybody who cares
about intellectual property, international trade, agricultural production,
food security or cultural preservation.’
Peter K. Yu, Kern Family Chair in Intellectual Property Law, Drake
University Law School, USA
Intellectual Property and
Traditional Knowledge in
the Global Economy
Translating geographical indications for
development

Teshager W. Dagne

Routledge
Taylor & Francis Group
LONDON AND NEW YORK
First published 2015
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

and by Routledge
711 Third Avenue, New York, NY 10017

Routledge is an imprint of the Taylor & Francis Group, an informa business

© 2015 Teshager W. Dagne

The right of Teshager W. Dagne to be identified as author of this work has

been asserted by him in accordance with sections 77 and 78 of the
Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or

utilised in any form or by any electronic, mechanical, or other means, now
known or hereafter invented, including photocopying and recording, or in
any information storage or retrieval system, without permission in writing
from the publishers.

Trademark notice: Product or corporate names may be trademarks or

registered trademarks, and are used only for identification and explanation
without intent to infringe.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Dagne, Teshager W., author.
Intellectual property and traditional knowledge in the global economy :
translating geographical indications for development / Teshager W. Dagne.
pages cm — (Routledge research in intellectual property)
Includes bibliographical references and index.
ISBN 978-1-138-01390-2 (hardback) — ISBN 978-1-315-78024-5 (ebk)
1. Marks of origin—Developing countries. 2. Intellectual property—
Developing countries. I. Title.
K1562.D34 2014
346.04'8—dc23
2014011785

ISBN: 978-1-138-01390-2 (hbk)

ISBN: 978-1-315-78024-5 (ebk)

Typeset in Garamond
by FiSH Books Ltd, Enfield
In memory of my sister, Yamrote Worku Dagne
Thispageintentionallyleftblank
Contents

Acknowledgements xiii
Foreword xv

1 General introduction 1
1.1 Introduction 1
1.2 The role of intellectual property in the protection of
traditional knowledge 2
1.3 Geographical indications as instruments of protection for
traditional knowledge 4
1.4 Overview of contents 7

2 Traditional knowledge-based agricultural products and

geographical indications law 15
2.1 Introduction 15
2.2 Traditional knowledge-based agricultural products 16
2.3 Geographical indications 17
2.4 Appellations of origin, indications of source and
geographical indications 21
2.5 Geographical indications and traditional knowledge 24
2.6 Legal origins of geographical indications 27
2.7 Historical development of the international protection of
geographical indications 28
2.8 Geographical indications in the World Trade Organization 30
2.8.1 Scope and nature of protection 31
2.8.2 Negotiation over geographical indications 32
2.9 Geographical indications in national and regional
jurisdictions 34
2.9.1 The United States’ approach to geographical
indications 35
2.9.2 The European Union’s approach to geographical
indications 36
x Contents

2.9.3 Policy considerations in the protection of

geographical indications 40
2.10 Geographical indications and traditional knowledge 44
2.11 Conclusion 46

3 Protecting traditional knowledge-based agricultural

products: imperatives and challenges 70
3.1 Introduction 70
3.2 Technology-driven transformation in agriculture 71
3.2.1 Biopiracy 73
3.2.2 Economic impacts 75
3.2.3 Impacts on biological diversity 76
3.2.4 Challenges to food security 79
3.2.5 The threat of cultural homogenization 82
3.3 Traditional knowledge-based agricultural products in
global markets 84
3.3.1 The consolidation of agricultural markets 84
3.3.2 Diminishing income for traditional agricultural
products 85
3.4 Recognizing the value of traditional agricultural products 86
3.5 Differentiation strategies in traditional agricultural
production 88
3.5.1 Quality schemes 89
3.5.2 Fair trade initiatives 90
3.5.3 Green labelling and eco-certification schemes 91
3.6 Challenges and impacts of differentiation schemes 92
3.7 Geographical indications as strategies of differentiation 95
3.8 Justifying intellectual property-based protection 97
3.9 Initiatives for protecting traditional knowledge-based
agricultural products 99
3.10 Geographical indications as modalities of protection 100
3.11 Geographical indications seen from development perspectives
in intellectual property 102
3.12 Conclusion 105

4 Implementing geographical indications in developing

countries 132
4.1 Introduction 132
4.2 Geographical indications in developing countries 133
4.3 The economic potential of geographical indications 135
4.4 Challenges and opportunities in the implementation of
geographical indications 137
4.4.1 Introducing geographical indications 138
4.4.2 Operational use of geographical indications 143
4.5 Geographical indications and biodiversity 154
 Contents xi

4.6 Geographical indications in the context of food security 156

4.7 Geographical indications and biopiracy 158
4.8 Geographical indications and cultural homogenization 160
4.9 Limitations and considerations in the use of geographical
indications 161
4.10 Conclusion 164

5 Conclusion: mapping future directions in the use of

geographical indications in developing countries 191
5.1 Introduction 191
5.2 Summary 191
5.3 Directions for future research and action 193
5.3.1 Geographical indications and traditional knowledge-
based agricultural products: responses at the
international level 194
5.3.2 Geographical indications and traditional knowledge-
based agricultural products: responses at the national
level 200
5.4 Conclusion 209

Index 219
Thispageintentionallyleftblank
Acknowledgements

This book is an adaptation of my doctoral dissertation at the Schulich

School of Law, Dalhousie University. As such, it owes its conception and
ultimate existence to the help, support and inspiration of many people who
I met during my days as a student. Given the scope and duration of the
research project, any attempt to detail the numerous people whose ideas,
comments and insightful observations are incorporated and critiqued would
entail the risk of omission and the lack of proper emphasis. I take this
opportunity to express my appreciation to several people who, directly or
indirectly, contributed to the development of this work and whose assis-
tance made this book possible.
First and foremost, I sincerely thank my doctoral supervisor, Professor
Chidi Oguamanam, for his guidance and practical advice. He has provided
me with thoughtful comments and insightful observations and suggestions
throughout the research work and in the course of development of the book.
My deep gratitude also goes to members of my doctoral supervisory
committee, Professors Brian Noble and Graham Reynolds, whose construc-
tive and challenging questions made this work at the dissertation stage a
better work. I would also like to express my profound gratitude and appre-
ciation to Professor Aldo Chircop for his invaluable support. Professor
Daniel Gervais gave me useful feedback and suggestions in his role as an
external examiner.
I would not have completed the writing without the generous financial
support from the Nova Scotia Law Foundation, the Faculty of Graduate
Studies, and the Schulich Graduate Scholarship at Dalhousie University. In
addition, my tenure as Schulich Research Fellow at the School of Law
created an ideal atmosphere for me to complete this project on a good note.
My acknowledgement and grateful appreciation also goes to many
people who have given me unconditional support, love, encouragement,
and care throughout this process. I would like to acknowledge and thank
David Dzidzornu for his helpful and friendly assistance in copy-editing the
work at the dissertation stage. I have enjoyed the friendly atmosphere at
the Law School graduate students workplace. Thank you all for your
support and encouragement.
Thispageintentionallyleftblank
Foreword

The intensification of intellectual property rights (IPR) protection since the

late twentieth century has stoked resentments in developing countries for a
number of reasons. One of the key reservations over strong IPR protection
focuses on the role of IPR in the exploitation and marginalization of tradi-
tional knowledge and its custodians. As a consequence, the impact of IPR
on the world’s most vulnerable peoples and communities – the indigenous
and local communities (ILCs) and, by extension, the relationship of IPR
with development has become a touchstone for criticism and renewed
pressure for recalibration of IPR law and policy at international and national
levels.
There are, however, a few IPR regimes that directly and robustly engage
the discourse on the potential or real role of IPR as an instrument for devel-
opment than the concept of geographical indications (GIs). In this book,
Tesh Dagne has boldly and critically weaved the disparate discourses on
GIs into a comprehensive and compelling strand of analysis and makes the
case for GIs as a sui generis intellectual property form on its own merit with
great potential for sustainable environmental (biodiversity conservation)
development, promotion of food security, agro-ecological diversity and
overall economic empowerment of traditional agricultural practitioners
involved in the production of traditional-knowledge-based agricultural
products. Dagne’s book has added depth and uncommon insight into
perhaps one of the most misunderstood and underestimated regime of IPR.
And the author did so perfectly mindful of the controversies, counterargu-
ments and often conflicting treatment of GIs and cognate regimes in treaty
texts and the overall jurisprudence of place or origin-based intellectual
property law.
This book engages virtually all the contentious issues with GIs, with stout
illustrations across jurisdictions, and provides elaborate context-specific
analysis of the role of intellectual property in development. Without
dispensing with the trade and commercial imperatives of IPR, the author
demonstrates many oft-ignored values of IPR (especially its potential as a
communal as opposed to conventional private rights regime) from a devel-
opment perspective. In addition, Dagne successfully locates the debate on
xvi Foreword

GIs within the broader international trade diplomacy. He highlights the

divergence of interests and the dynamics of their convergences on GIs in a
shifting triangular relationship in regard to the European Union, the United
States (including its allies) and the rest of the developing countries.
Not only has Dagne provided a significant piece of work that elaborates
on GIs from a practical, authoritative and global outlook, his effort is also
complemented by insights on several national experiences on the imple-
mentation of GIs. More strikingly, the book highlights the legal, policy and
empirical challenges inherent in national implementation of GI regimes, as
well as the pros and cons of GI initiatives in developing countries. It under-
lines the need for pragmatic and context-sensitive implementation strategies
and argues that identified challenges may be exaggerated even as the
potential benefits of GIs would seem to outweigh putative or genuine
obstacles or costs of their implementation.
This book is an important contribution that brilliantly maps out the
complex intersections of IPR and development within the site of one of the
most underdeveloped and underestimated regimes of IPR. Many stake-
holders interested in the role of intellectual property in development,
including ILCs, lawyers, researchers, students and policy makers at global
and national levels have compelling evidence to seriously consider GIs in
particular and origin-based IPRs in general from refreshing and empirical
perspectives. We all owe a deserved debt of gratitude to Dr Tesh Dagne for
this important contribution.

Chidi Oguamanam
Professor, Faculty of Law, University of Ottawa
May 2014
1 General introduction

1.1 Introduction
The legal regimes that govern the relationship between intellectual prop-
erty, traditional knowledge and biodiversity remain sources of significant
tension in international intellectual property law making. A number of diffi-
culties arise in efforts to reconcile legal and policy norms at the intersection
of the three regimes. Such difficulties generally stem from perceived short-
comings of the globally recognized forms of intellectual property rights to
accommodate epistemological underpinnings of traditional knowledge and
biodiversity in providing sufficient protection.1
In the spectrum of international regimes for intellectual property, tradi-
tional knowledge and biodiversity, this book focuses on the possibility of
using geographical indications (GIs) as forms of intellectual property
protection by which biodiversity-rich communities may control their tradi-
tional knowledge-based agricultural products (TKBAPs) in the commercial
world.2 Proposals for the use of GIs as tools for protecting TKBAPs have
appeared in many forums for international law making in recent times.
These proposals coincide with a shift in outlook on the role of intellectual
property in which many advocated reorienting its focus from serving the
conventional purpose of providing individuals with economic incentives to
‘spur innovation’ to broader objectives of serving ‘societal interests and
development-related concerns’.3 If the current ‘globalization of [intellectual
property] is going to have legitimacy’, it is held, ‘issues of recognition and
redistribution, development and sustainability . . . must be emphasized’.4 The
book addresses the question of whether GIs can, as forms of intellectual
property, be used to recognize a category of traditional knowledge and
related biodiversity in the form of TKBAPs.
Focusing on the responsiveness of GIs to the needs and desires of
indigenous peoples and local communities (ILCs) – whom the international
community considers custodians of biodiversity5 – this book examines the
relationship between GIs and TKBAPs in developing countries. Despite the
considerable enthusiasm in recent times over the role of GIs in serving the
needs and expectations of ILCs, and traditional agricultural producers (TAPs)
2 IP and TK in the Global Economy

there is appreciable dearth of research on how far and in what context GIs
can be used as a protection model for TKBAPs. Indeed, not only is the
concept of GIs itself widely misunderstood. As well, analyses as to their
applicability for protecting TKBAPs in developing countries often reflect
underlying cultural differences in the nature, scope and jurisprudence of
GIs protection across jurisdictions. This book explores the conceptual, legal
and analytical bounds of GIs and examines the question of how GIs could
address some of the concerns in the exploitation of traditional knowledge
and its underlying agrobiodiversity in the global economy.6
The book identifies and discusses themes concerning the design of an
effective and collectively beneficial GIs regime to protect TKBAPs in a
development-oriented intellectual property system in developing countries.
It offers perspectives on how legislation, policy and initiatives for the
protection of TKBAPs at the international and national levels could be
shaped under the framework of GIs law. At the international level, the book
proposes for stronger protection of GIs through the integration of the nego-
tiations and discussion over GIs and with that for traditional knowledge. At
the national level, the case is made for the determination of immediate chal-
lenges and long-term opportunities in choosing a legal means for protecting
GIs in developing countries. In this connection, it is suggested that the
potential of GIs to meet national and local imperatives of protecting
TKBAPs be assessed, inter alia, based on their potential to achieve identifi-
able economic, biodiversity, cultural and food security objectives.

1.2 The role of intellectual property in the protection of

traditional knowledge
From the perspective of developing countries, the instrumentality of GIs as
a means for protecting TKBAPs should be viewed in the broader context of
the role that intellectual property rights (IPR) could play in protecting tradi-
tional knowledge. The relationship between IPRs and traditional
knowledge has become an issue in international intellectual property law
with the realization of the significant contribution of traditional knowledge
to the utilization of biological resources in technological advances.7
Traditional knowledge usually provides the lead for the exploitation of
genetic resources in biotechnology applications.8 IPRs are often used to
secure the ‘functional utility of genetic resources’ derived from traditional
knowledge.9 IPR is ‘one, or even the principal’ way through which the
potential value of genetic resources is captured.10 The linkage of intellectual
property rules with international trade under the ambit of the World Trade
Organization (WTO) shaped the evolution of international regimes that
govern biological resources and their underlying traditional knowledge.11 In
this respect, traditional knowledge has brought to the intellectual property
system questions such as:
 General introduction 3

Has the intellectual property system been used to misappropriate tradi-

tional knowledge, failing to protect the interests of indigenous and
local communities? What forms of respect and recognition of traditional
knowledge would deal with concerns about traditional knowledge and
give communities the tools they need to safeguard their interests? Is the
intellectual property system compatible with the values and interests of
traditional communities – or does it privilege individual rights over the
collective interests of the community? Can intellectual property bolster
the cultural identity of indigenous and local communities, and give
them greater say in the management and use of their traditional knowl-
edge? What can be done – legally, practically – to ensure that the
intellectual property system functions better to serve the interests of
traditional communities?12

The major challenges to efforts to extend legal protection to traditional

knowledge arise from difficulty of categorizing it in a proper protective
legal regime. The appropriation of traditional knowledge through IPR
systems usually takes the form of an establishment of rights by non- indige-
nous interests, the physical element of a biological resource usually forming
the basis for ‘invention’. A biological resource within which traditional
knowledge is embedded is sometimes understood in its material sense.13
Biological resources are considered objects of tangible property protection
under a traditional property rights regime and, thus, inappropriate subject
matter for IPRs protection.
The material legally categorized as a ‘biological resource’ and, thus, an
object of the traditional property regime is, however, at once, ‘multifaceted
and polyvalent’, as it is perceived and valued by its holders – ILCs – accord-
ing to an altogether different value system.14 In the worldview of many ILCs,
the physical material is valued for its immediate attributes (such as a seed
that serves as food to satisfy hunger or a leaf that delivers compositions to
provide medicinal effects). More importantly, ILCs value the resource ‘for
its intangible information content (the seed’s capacity to pass on the infor-
mation necessary to grow a crop, or the plant’s coding for a therapeutic
protein)’.15 Beyond its information content, the physical material of the
biological resource usually has cultural and aesthetic (and spiritual) value
to most ILCs. In this context, the resource is technically known as ‘biodi-
versity’.16 Biodiversity embodies ‘valuable information’ and cultural values
and, thus, ILCs perceive it as a form of intangible asset.
As an intangible asset, the protection of intellectual property should
ideally avail biodiversity and the traditional knowledge integrated with it.
IPRs protect intangible subject matter and, being intangible, biodiversity
and its underlying knowledge systems may ordinarily be considered
matters for intellectual property protection. However, it is difficult to envis-
age intellectual property protection for traditional knowledge and
biodiversity under existing IPR regimes because the criteria of protection
4 IP and TK in the Global Economy

that IPRs incorporate are mostly alien to the sociocultural realities of ILCs
and to the epistemic conception of traditional knowledge. The current
forms of IPRs, as incorporated in the intellectual property legislation of
most countries, are inadequate to protect traditional knowledge and related
biological resources for a number of reasons.
First, most forms of IPR emphasize, to a large extent, individual intellec-
tual achievements.17 As a result, the legal identity of rights-holders is
inherently individualistic or corporeal. For ILCs, however, knowledge and
innovations derived from traditional knowledge systems and traditional
knowledge might not be attributed to an individual inventor.18 Traditional
knowledge is more ‘a means of developing and maintaining group identity
and survival’ than of promoting individual gain.19 The conventional forms
of IPR do not, in most cases, take account of the collective nature of tradi-
tional knowledge.
Secondly, the subject matter of protection in some IPRs, such as in
patents, is required to be ‘new’.20 Patents require that applications for
protection describe specific acts of invention and that the subject matter of
protection must ‘involve an inventive step’.21 On the other hand, traditional
knowledge is knowledge built up over time in an incremental fashion.22 The
criteria of novelty and originality in IPRs puts traditional knowledge out of
the realm of protection, since it is built on knowledge accumulated over
generations and continues to evolve in response to changing and emerging
needs.
Thirdly, most forms of intellectual property accord their owners a limited
term of protection – based on the ‘contractarian or contract-based’ ration-
ale for intellectual property that regulates the relation between the inventor
and the society.23 Traditional knowledge frequently shows continuity and is
marked by its evolution over time and its cross-generational nature. It is a
heritage that must be protected in perpetuity, for the lifetime of the culture,
not merely for some fixed period.24
Even in circumstances where traditional knowledge may qualify for
protection under IPR regimes, certain challenges arise for the communities
that want to benefit from the system. IPRs tend to favour corporeal and
other non-indigenous interests, as they are mostly subject to economic
power and manipulation.25 The procedures for registering the rights are, in
general, expensive, complicated and time consuming for most traditional
knowledge-holders.26 Even though IPRs may be established over traditional
knowledge and related resources, in some cases, the rights may be difficult
to monitor and enforce.27

1.3 Geographical indications as instruments of

protection for traditional knowledge
Despite the incompatibility between traditional knowledge and IPRs,
whether GIs can be used to protect aspects of traditional knowledge in the
 General introduction 5

form of TKBAPs is a difficult question.28 Primarily, the nature, scope and

extent of protection that GIs afford under current international legal frame-
work determine whether their protection covers TKBAPs.29 Among previous
attempts to assess the applicability of GIs to protect traditional knowledge
based on the nature of protection that GIs afford, a leading academic study
by Kur and Knaak notes that:

[T]he indication for a product is the subject matter of this protection,

not the product itself. For this reason tradition-based innovations and
creations, as indicated in the WIPO Report on fact-finding missions on
Intellectual Property and TK, cannot enjoy protection per se by means
of geographical indications. The protection of GIs may apply to signs
indicating these innovations and creations.30

This view highlights the issue as to whether the nature of GI protection

extends just to the denotation of a geographic location, or to the connota-
tion of some or other uniqueness such as quality, reputation, or
characteristics as well. If the protection in GIs simply denotes a geograph-
ical location, nothing more than the ordinary trademark regime would be
required to protect the rights of individuals who want their products to be
identified by the geographic sign or name.31
In a pessimistic view about the potential of GIs to protect traditional
knowledge, Kur and Knaak also maintain:

[A]s to geographical indications of indigenous communities, the general

provisions of the TRIPS Agreement are clearly not sufficient to offer
adequate protection. The general protection pursuant to the TRIPS
Agreement is too limited in its scope because . . . it depends on the
opinions of the public in the country where protection is claimed.
Under this rule, GIs of indigenous communities being unknown as
such to the public of certain countries are unprotected in those coun-
tries.32

As Blakeney observes, this assessment makes assumptions relating to ‘the

ignorance of persons about indigenous communities’.33 Contrary to this
assumption, however, the growth of ‘ethno-marketing’ is a testimony to
increased awareness – among consumers – of ‘indigenous communities and
what they have to offer’ to the global economy.34 However, Blakeney, Kur
and Knaak all agree that the establishment of a register for GIs, as discussed
under the WTO negotiations, can overcome the problem of non-publicity
about ‘GIs of indigenous communities’.35
Raustiala and Munzer argue for recognizing the limited nature of GI
protection that would not allow their extension to traditional-knowledge-
related agricultural products. In assessing the broader goal of GIs
protection, they observe that:
6 IP and TK in the Global Economy

[W]hile economic concerns plainly loom large in the debate over GIs,
the effort to entrench GI protection in international law also draws
strength from more diffuse concerns about authenticity, heritage and
locality in a rapidly integrating world. To assert the necessity of GI
protection is, in part, to assert the importance of local culture and tradi-
tion in the face of ever-encroaching globalization. The GI question is
as a result linked to larger, politically sensitive debates about the proper
level of protection for farmers and rural communities, the degree to
which international law ought to trench upon questions of culture and
tradition, the necessity of intellectual property rights and, above all, the
importance of economic competition.36

Because GIs are ‘geographic indications’ (fixed natural attributes), they

argue, ‘human innovation’ and ‘incremental improvements’ do not factor as
rationales in a debate which presupposes the existence of property rights.37
They argue that, in property rationales that are grounded in moral rights,
individuals, not regions, ought to enjoy GIs.38 The more GI rights are justi-
fied with reference to ‘human innovation’ and ‘incremental improvements
in quality’, the argument runs, ‘the less attributable the characteristics of the
GI-protected good are to the local area’.39 Thus, Raustiala and Munzer argue
that GIs identify a geographical location with ‘natural features’ instead of
‘human factors’ and, as long as they are identified like this, proposals to
extend the protection of GIs to include traditional knowledge and related
resources are ‘unwarranted and . . . well beyond what any existing theory of
property can support’.40
In an optimistic assessment of the potentials of GIs to protect traditional
knowledge, Biber-Klemm and colleagues outline a number of issues on the
link between GIs and traditional knowledge.41 While noting the limited
discussion in the WTO TRIPS Council regarding the use of GIs as a tool for
the protection of traditional knowledge, they conclude that ‘from the
perspective of traditional knowledge, GIs are of specific interest’.42 Similarly,
Taubman, Director of the Intellectual Property Division at the WTO, affirms
that:

[R]ecognizing the past cumulative innovation and distinctive know-how

embedded in traditional products, GIs forge a link between the conven-
tional mainstream trade interests associated with agricultur[al]
commodities, contemporary conceptions of a ‘knowledge economy’ . . .
and growing recognition of traditional knowledge as a distinctive
element of the very personality of communities.43

As he puts it, ‘GIs, uniquely in intellectual property law, unite global protec-
tion systems with an intrinsically, necessarily, localized basis of protection,
linking cultural diversity and the local environment with global markets:
thinking locally, acting globally’.44 Gervais agrees that GIs may be useful
 General introduction 7

protective tools ‘for at least some forms of traditional knowledge’.45 Because

agricultural products with a specific geographical origin come from develop-
ing countries, he concludes that ‘the protection of geographical indications
has normative heft in countries that are “traditional-knowledge-rich”’.46
The foregoing shows that despite the acknowledged incompatibility
between IPRs and traditional knowledge, there is a growing interest in
assessing the potential of GIs to protect traditional knowledge-based
resources in particular.47 Even so, most of the work fails to provide detailed
analysis of the link between traditional knowledge and GIs in the context of
the diverse needs and expectations of traditional agricultural producers
(TAPs) in developing countries. The promise of GIs should primarily be
examined in light of the needs and expectations of the communities for
whom the protection of traditional knowledge holds a particular importance,
namely, TAPs. The literature reveals very little in the way of establishing
normative and theoretical foundations for TAPs’ proprietary claims in GIs to
accommodate a broader role for intellectual property of protecting tradi-
tional knowledge through GIs. In addition, answering the question as to
whether GIs can and should be utilized to protect traditional knowledge
necessarily grapples with the ideological divide between the United States
and the European Union (EU) commentators on the purpose and philo-
sophical foundations of GIs.48 These weaknesses in the literature provide
opportunities for the contributions that the analysis in this book conducts.

1.4 Overview of contents

As a matter of primary interest, this book examines the question as to
whether and how GIs can serve as appropriate legal tools to protect
TKBAPs. The book explores questions on how GIs are protected in differ-
ent jurisdictions; what justifies the choice of GIs as instruments for
protecting TKBAPs in developing countries; and how properly designed
systems of GIs may be used to pursue broad objectives for the protection
of biocultural diversity, achievement of food security and prevention of
biopiracy.
Chapter 2 examines the unique position that GIs hold in the legal terrain
of intellectual property protection in different legal frameworks. After clar-
ification of concepts that give significant insights into the link between GIs
and traditional knowledge, the topics in this chapter examine the degree,
scope, nature and form of GI protection in national and international GI
laws. The approach to protecting GIs differs across jurisdictions according
to variations in historical, cultural and legal traditions. Also, differences exist
in priority objectives, underlying policy rationales and jurisprudential
divides in the legal system of different jurisdictions. This chapter demon-
strates that the rationales for the protection of GIs – at least those raised in
the European civil law jurisdictions – can be logically extended for appli-
cation in developing countries.
8 IP and TK in the Global Economy

Chapter 3 attempts to establish the case for protecting TKBAPs. The

discussion illustrates the challenges and difficulties that TAPs in developing
countries face amid changing trends in global economic conditions. In
general, traditional knowledge systems face diverse and far-reaching chal-
lenges that mostly arise from changing trends in the global economy. These
include challenges occasioned by the loss of genetic diversity, reduction in
the prices paid for traditional agricultural products and the crisis in tradi-
tional agricultural production models.
More than at any other time, the power and influence of participants in
the current evolution of the global economy are felt through their ability to
generate, share and utilize knowledge. This is because knowledge has
become the most important element of transactions in today’s international
trade. The discussion demonstrates the prominent role of intellectual prop-
erty instruments in this scenario and identifies the socioeconomic, cultural
and environmental imperatives that necessitate the protection of TKBAPs.
Chapter 3 highlights the need to respond to the expectation of TAPs
through the recognition of instruments such as GIs that facilitate the partic-
ipation of TAPs in global markets for agricultural products. The discussion
notes the broad global acceptance and legitimacy that GIs gained in many
forums as intellectual property instruments to protect TKBAPs.
Chapter 3 concludes after outlining normative justifications for the
consideration of GIs as development tools that protect TKBAPs. The discus-
sion conceptualizes GIs as proprietary rights that may be justified through
theoretical insights derived from the social planning theory of IP, comple-
mented with the theories of embeddedness, cultural economy and a
rights-based approach to development. The capabilities approach to devel-
opment is reflected in the suggestion that GI protection, conceptualized in
the manner proposed in the book, results in the self-sufficiency of TAPs so
that they can preserve and appreciate their traditional lifestyle as a basis for
their economic development.
Chapter 4 examines in some detail the applicability of GIs to the protec-
tion of TKBAPs in light of the experiences and expectations of TAPs in
developing countries. The topics covered in Chapter 4 assess the road-
blocks, challenges and potentials of adopting GIs in developing countries
as instruments to protect TKBAPs. Secondary data from previous experi-
ences in developing countries on the use of GIs is employed to illustrate
the analysis. This chapter argues that the applicability of GIs to the protec-
tion of TKBAPs should be assessed on considerations of the opportunities,
challenges and effectiveness of using GIs. The discussion examines the
potential of GIs in developing countries under the following themes: insti-
tutional and legal capabilities of implementation at national and local levels;
organizational and structural capabilities of producer organizations and
stakeholders; planning and management effectiveness of production and
marketing; and considerations and constraints in enforcing and defending
GI rights.
 General introduction 9

Chapter 4 also looks into the potential that GIs hold in various policy
domains. It examines the role of GIs as vehicles to pursue socioeconomic,
cultural and ecological objectives that enable TAPs to resist the impacts of
global economic pressures, identified in Chapter 3. The discussion illus-
trates that the practical difficulties of implementing GIs are not
insurmountable depending on the policy contexts of their implementation.
It is also shown that the recognition of the limitations in the system of GIs
is equally important to facilitate achievement of the identifiable objectives
in the use of GIs to protect TKBAPs. These limitations are prominent in
using GIs to prevent the various manifestations of biopiracy, for example.
Finally, Chapter 5 concludes the book. It summarizes the main points
established through the analysis in preceding chapters, affirming that GIs can
be preferred options for protecting TKBAPs by addressing the concerns of
TAPs in agricultural production and by supporting their participation in inter-
national trade. If conceptualized as a form of intellectual property that is
structurally and functionally suited to the attributes of traditional knowledge,
as proposed in this book, the protection offered by GIs serves the expecta-
tions of TAPs in traditional knowledge protection and may be used to their
advantage in economic, biodiversity and sociocultural terms. Based on these
points, the book recommends how GIs could be recognized as tools to
protect TKBAPs at the international and national levels of IP regulation.
At the international level, the book argues that enhanced protection for
GIs is intrinsically linked to negotiations and discussion for the international
protection of traditional knowledge. As such, it calls for the consideration
of a GI model to serve as an instrument for protecting aspects of traditional
knowledge in current negotiations under the auspices of World Intellectual
Property Organization. It also recommends that this must be accomplished
in cooperation with the WTO, the Convention on Biological Diversity and
the Food and Agricultural Organization. The recommendation is justified on
the ground that higher level of GI protection for agricultural products at the
international level could bring a degree of balance in the approach to the
implementation of global IPRs, as this gives developing countries an oppor-
tunity to protect TKBAPs.
At the national level, it is recommended that the use of GIs as instru-
ments for protecting TKBAPs should be carefully weighed from two
perspectives. First, a decision to use GIs should assess how GIs could be
utilized to protect TKBAPs without compromising traditional knowledge
systems and their underlying biodiversity. This is best accomplished in light
of immediate challenges and long-term opportunities associated with intro-
ducing, establishing and enforcing GI rights in specific contexts. Once
countries decide to implement GIs within their jurisdictions, the second
consideration concerns the choice of a legal means for protecting GIs. As
to this, the book argues that the flexibility inherent in providing a means of
GI protection – either through sui generis or trade mark-based systems –
offers alternative approaches to implementing GIs that suit different
10 IP and TK in the Global Economy

circumstances. The suitability of GIs for protecting TKBAPs, and the choice
of a legal means for protecting GIs should, therefore, be determined on a
case-by-case basis. Finally, Chapter 5 identifies limitations of the proposal
and concludes, overall, that GIs should be utilized to supplement overar-
ching measures to protect traditional knowledge nationally and
internationally.

Notes
1 See, generally, Angela R. Riley, ‘Recovering Collectivity: Group Rights to
Intellectual Property in Indigenous Communities’ (2000) 18 Cardozo Arts and
Ent L J 175; Ikechi Mgbeoji, ‘Patents and Traditional Knowledge of the Uses of
Plants: Is a Communal Patent Regime Part of the Solution to the Scourge of Bio
Piracy?’ (2001) 9 Ind J Global Legal Stud 163; Norman W. Spaulding III,
‘Commodification and Its Discontents: Environmentalism and the Promise of
Market Incentives’ (1997) 16 Stan Envt’l L J 294; Chidi Oguamanam, ‘Localizing
Intellectual Property in the Globalization Epoch: The Integration of Indigenous
Knowledge’ (2004) 11 Ind J Global Legal Stud 135 [Oguamanam, ‘Localizing’] at
nn 1; Chidi Oguamanam, International Law and Indigenous Knowledge:
Intellectual Property, Plant Biodiversity, and Traditional Medicine (Toronto:
University of Toronto Press, 2006) at 5.
2 In relation to traditional knowledge, the term ‘protection’ has two contexts:
‘protection’ in the context of intellectual property (IP) on the one hand and the
‘safeguarding’ or ‘preservation’ of cultural heritage on the other. See World
Intellectual Property Organization, Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore, Draft
Gap Analysis on the Protection of Traditional Knowledge (May 30, 2008).
Available online at www.wipo.int/export/sites/www/tk/en/igc/pdf/
tk_gap_analysis.pdf (accessed 9 April 2014) . The latter has a wider scope in
that it includes objectives and activities that can be realized through non-intel-
lectual property laws and programs for the ‘identification, documentation,
transmission, revitalization, and promotion of tangible or intangible cultural
heritage in order to ensure its maintenance or viability’, ibid. Protection in the
context of intellectual property refers to the establishment of ‘legal measures
that limit the potential use of the protected material by third parties’. Ibid. The
analysis in this book of the instrumentality of GIs to ‘protect’ TKBAPs employs
the legalistic and IP-context of the use of the term. In discussion regarding the
policy implication of the use of GIs, however, the meaning of ‘protection’ lies
outside the context of IP. In analysing the contribution of GIs to protecting
biodiversity, for example, ‘protection’ applies to ‘safeguarding’ or ‘preserving’.
In other words, protection of TKBAPs in the second context implies protecting
the social, economic, cultural and biodiversity context of traditional knowledge
so that the knowledge continues to guide and sustain the life of indigenous
peoples and local communities. Thus, the term ‘protection’ should be under-
stood in this book in both contexts and, where necessary, a distinction should
be made to identify the applicable context. See GRAIN, ‘The TRIPS Review at
a Turning Point?’ (2003). Available online at www.grain.org/es/article/
entries/104-the-trips-review-at-a-turning-point (accessed 9 April 2014).
3 In response, the WIPO General Assembly added a ‘development agenda’ into
its mandate for intellectual property law and policy. See WIPO, Geneva
Declaration on the Future of the World Intellectual Property Organization
(October 2004). Available online at www.futureofwipo.org; WIPO, The 45
 General introduction 11

Adopted Recommendations under the WIPO Development Agenda. Available

online at www.wipo.int/export/sites/www/ip-development/en/agenda/ recom-
mendations.pdf (accessed 9 April 2014); also see Madhavi Sunder, ‘The
Invention of Traditional Knowledge’ (2006) 70 Law and Contemporary
Problems 97 (citing a proposal to WIPO which calls for ‘the expansion of intel-
lectual property law’s mandate from an exclusive focus on “efficient protection”
and “harmonisation” to “fairness, development and innovation”’ at 6.)
4 See Nicole Aylwin, Rosemary J. Coombe and Anita Chan, ‘Intellectual Property,
Cultural Heritage and Rights-Based Development: Geographical Indications as
Vehicles for Sustainable Livelihoods’ in Willem Grosheide, ed., Intellectual
Property and Human Rights: A Paradox (Cheltenham: Edward Elgar, 2010)
(observing that IPRs recently ‘are deployed to further objectives as seemingly
unrelated as identity politics, rural development, ethical consumption practices,
preservation of biological and cultural diversity, and indigenous self-
determination’ at 1).
5 See United Nations, Convention on Biological Diversity, 5 June 1992 , 30619
U.N.T.S., entered into force 29 December 1993 (expressly recognizing ‘the close
and traditional dependence of many TAPs embodying traditional lifestyles on
biological resources’ at Preamble and Art. 8 (j)). Available online at
www.cbd.int/doc/legal/cbd-en.pdf (accessed 9 April 2014); Agenda 21, United
Nations Conference on Environment and Development, Rio de Janeiro, 3–14
June 1992 (‘The Earth Summit’). Available online at www.un.org/geninfo/
bp/envirp2.html (accessed 9 April 2014); Nagoya Protocol on Access to Genetic
Resources and the Fair and Equitable Sharing of Benefits Arising from their
Utilization to the Convention on Biological Diversity, open for signature on 2
February 2011, Annex 1 to CBD COP10, Agenda item 3 at preamble, para.7.
6 In the context of this book, the ‘global economy’ is an interdisciplinary frame
of analysis that incorporates ‘three different, overlapping economies’ as Stuart
Hart identifies in his seminal article. According to Hart, the first part of the
global economy is what he identifies as ‘the market economy’; namely, ‘the
familiar world of commerce comprising both the developed nations and the
emerging economies’. This is the part of the economy where one-sixth of the
world’s population lives, which is characterized by massive consumption and
waste. The second economy as ‘the survival economy’ and, according to Hart,
it refers to ‘the traditional, village-based way of life found in the rural parts of
most developing countries’. The third part of the economy is ‘nature’s economy,
which consists of the natural systems and resources that support the market and
the survival economies’. See Stuart L. Hart, ‘Beyond Greening: Strategies for a
Sustainable World’ (1996) Harvard Business Review 66 at 69. In terms of clari-
fying the interactions between states and global actors and the ways in which
the three constituents of the global economy operate – which the book is
devoted to analyzing – the global economy can be looked from the macro
level, the mid level and the micro level. At the macro level, ‘international organ-
izations and regimes that establish rules and norms for the global community’
define the parameters of the global economy. These include international
regimes that consider various aspects of law and policy on intellectual prop-
erty. These regimes include, in the context of the discussion in this book, the
WTO, the WIPO, the Food and Agriculture Organization, the Convention on
Biological Diversity and similar international and regional organizations. At the
mid level are found ‘countries and firms’, while the micro level is dominated by
groups characterized by their growing ‘resistance to globalization: . . . consumer
groups, activists, and transnational social movements’ dominate the micro level.
The focus of inquiry in this book delves into the role of a wide range of stake-
12 IP and TK in the Global Economy

holders, such as farmer and producer groups, different levels of national

governments, inter-governmental organizations, non-governmental organiza-
tions, and beyond. Thus, the book addresses issues germane to the constituents
of the global economy across all three levels. See Gary Gereffi, ‘The Global
Economy: Organization, Governance, and Development’ in Neil J. Smelser and
Richard Swedberg, eds. The Handbook of Economic Sociology (Chichester:
Princeton University Press and Russell Sage Foundation, 2005) at 160.
7 See Michael Blakeney, ‘Intellectual Property, Traditional Knowledge and
Genetic Resources: Policy, Law and Current Trends’ (paper delivered at the
WIPO National Seminar on Intellectual Property for Faculty Members and
Students of Ajman University, Ajman, 5 May 2004) [Blakeney, ‘Trends’].
8 See Padmashree Gehl Sampath and Richard G. Tarasofsky, ‘Study on the Inter-
Relations between Intellectual Property Rights Regimes and the Conservation of
Genetic Resources’ (prepared for the European Commission Directorate-
General, Environment, 31 December 2002).
9 Blakeney, ‘Trends,’ supra note 7.
10 Anthony Taubman, ‘Genetic Resources’ in Silke Von Lewinski, Indigenous
Heritage and Intellectual Property: Genetic Resources, Traditional Knowledge
and Folklore (London: Kluwer Law International, 2009) at 205.
11 See generally Gertrui van Overwalle, ‘Protecting and Sharing Biodiversity and
Traditional Knowledge: Holder and User Tools’ (2005) 53 Ecological Econ 585);
see also Christopher May, The Global Political Economy of Intellectual Property
Rights: The New Enclosures (London: Routledge, 2000).
12 See WIPO, Traditional Knowledge: Key to a Diverse and Sustainable Future,
Intellectual Property and Traditional Knowledge, Booklet No. 2. Available
online at www.wipo.int/freepublications/en/tk/920/wipo_pub_920.pdf
(accessed 9 April 2014) at 1–2.
13 See Chapter 2 Section 2.3, for discussion on the relationship between traditional
knowledge and the material sense of biodiversity.
14 See Brendan Tobin, ‘Redefining Perspectives in the Search for Protection of
Traditional Knowledge: A Case Study from Peru’ (2001) 10:1 RECIEL at 54;
Krystyna Swiderska, ‘Protecting Traditional Knowledge: A Framework Based on
Customary Laws and Bio-Cultural Heritage’ (paper delivered at the International
Conference on Endogenous Development and BioCultural Diversity, Geneva,
3–5 October 2006) at 54; Throughout the book, ILCs and TAPs are used inter-
changeably. In conceptual terms, TAPs refers to a subset of ILCs who engage
in traditional-knowledge-based agricultural practice.
15 Brendan Tobin, ‘Redefining Perspectives in the Search for Protection of
Traditional Knowledge: A Case Study from Peru’ (2001) 10:1 RECIEL at 206.
16 In this respect, the use of the phrase ‘traditional knowledge-based agricultural
products’ in this book signifies the coalescence between biological resources
and traditional knowledge in agricultural practice. See Chapter 2 Sections 2.2
and 2.4.
17 The preamble to the TRIPS Agreement emphasizes that ‘intellectual property
rights are private rights’ available to legal person, implying that such rights are
generally owned by individuals or corporations and not by communities, states
or nations. See Agreement on Trade-Related Aspects of Intellectual Property
Rights, 15 April 1994, 1869 U.N.T.S. 299: 33 I.L.M. 1197 [TRIPS Agreement],
Preamble.
18 See Marsha A. Echols, ‘Geographical Indications for Foods’ (2003) 47 Journal
of African Law 199 at 201; D. A. Cleveland and S. C. Murray, ‘The World’s Crop
Genetic Resources and the Rights of Indigenous Farmers’ (1997) 37 Current
Anthropology 477 at 483.
 General introduction 13

19 Tonina Simeone, Indigenous Traditional Knowledge and Intellectual Property

Rights, 17 March 2004, Parliament of Canada, Library of Parliament,
Parliamentary Research Branch. Available online at www.parl.gc.ca/
content/lop/researchpublications/prb0338-e.htm (accessed 9 April 2014).
20 See, for example, Patent Cooperation Treaty, June 19, 1970, 28 UST. 7645, 1160
U.N.T.S. 231 at Art. 5; TRIPS Agreement, note 17, Art. 27 (1); 35 USC. 103
Conditions for patentability; non-obvious subject matter – Patent Laws.
21 Ibid.
22 Oguamanam, ‘Localizing’, supra note 1 at 143.
23 According to the ‘contract-based’ argument for the protection of IPRs, ‘the
inventor notionally agrees to disclose her invention to the state, for example,
by way of filing a patent specification in consideration or exchange for the
exclusive right (monopoly) to exploit the invention for a fixed term. At the
expiration of the term, the public is free to exploit the invention without the
patent holder’s interference’. See Chidi Oguamanam, ‘Beyond Theories:
Intellectual Property Dynamics in the Global Knowledge Economy’ (2009) 9
Wake Forest Intell Prop L J 104 at 112.
24 Erica Daes, Protection of the Heritage of Indigenous Peoples cited in David R.
Downes and Sarah A. Laird, ‘Innovative Mechanisms for Sharing Benefits of
Biodiversity and Related Knowledge: Case Studies on Geographical Indications
and Trademarks’ (paper prepared for UNCTAD Biotrade Initiative, 1999) at 4.
25 See Riley, supra note 1 at 11.
26 Agreed Interpretation of the International Undertaking, Annex I (Resolution
4/89 of the Twenty-fifth Session of the FAO Conference, Rome, 11–29
November 1989) at 5.
27 See Riley, supra note 1 at 11.
28 In this respect, the concept of TKBAPs refers to the tangible expression of
culture and tradition in the application of biodiversity in the field of agricultural
practice. See discussion in Chapter 2 Section 2.2.
29 See discussion in Chapter 2 Section 2.4.
30 Annette Kur and Roland Knaak, ‘Protection of Traditional Names and
Designations’ in Silke von Lewinski, ed., Indigenous Heritage and Intellectual
Property (The Hague: Kluwer Law International, 2004) at 227.
31 Later parts of the book closely examine the significance of the difference
between the connotation and denotation roles of GIs as part of the assessment
of the instrumentality of GIs to protect traditional knowledge. See Chapter 2
Section 2.4.
32 Supra note 30 at 233, 234.
33 See Michael Blakeney, Intellectual Property Rights and Food Security
(Wallingford: CABI, 2009) at 362.
34 Ibid. ‘Ethnic market’ refers to a market that ‘represents different cultures which
cannot be ignored or gathered in one standardized and global market’. Effective
ethnic marketing is formulated through an analysis which includes ‘demo-
graphic, life styles, culture, education and employment’. See Sonny Nwankwo,
J. Aiyeku and A. Ogbuehi, ‘The Marketing Challenge of Multiculturalism: An
Exploratory Study’ in C. P. Rao, Marketing and Multicultural Diversity
(Farnham: Ashgate Publishing, 2006) at 222; also see discussion of the success
of differentiation strategies for TKBAPs in developing countries in Chapter 3
Section 3.5.
35 Ibid.
36 Kal Raustiala and Stephen R. Munzer, ‘The Global Struggle Over Geographic
Indications’ (2007) 18 EJIL 337 at 338–339.
37 Ibid. at 352.
14 IP and TK in the Global Economy

38 Ibid.
39 Ibid.
40 Ibid. at 339–340. See similar outlook in Susy Frankel, ‘The Mismatch of
Geographical Indications and Innovative Traditional Knowledge’ Victoria
University of Wellington Legal Research Paper No. 35/2011 (2011).
41 Susette Biber-Klemm et al., ‘New Collective Policies’ in Susset Biber-Klemm and
Thomas Cottier, eds, Rights to Plant Genetic Resources and Traditional
Knowledge: Basic Issues and Perspectives (Wallingford: CABI, 2006) at 251.
42 Ibid.
43 Ibid.
44 Ibid. at 235.
45 Daniel Gervais, ‘Traditional Knowledge: Are We Closer to the Answers? The
Potential Role of Geographical Indications’ (2009) ILSA J of Int and Comp Law
551 at 552.
46 Ibid. at 563.
47 Also, see Chapter 3 Section 3.9, for emerging interest in assessing the potential
of GIs as modalities for protecting traditional knowledge.
48 For historical and underlying philosophical reasons, the EU supports compre-
hensive protection of GIs in international law, whereas the United States and
its allies (mainly Australia, Canada and Argentina) oppose such protection and
argue for limited recognition of GIs. See Chapter 2 Section 2.9.