Geographical indication (GI) is a very unique type of intellectual property wherein the place of origin of the product is linked to its producer. An interesting feature of Geographical indications is that it involves the concept of collective ownership. This means that there might be a number of producers/manufacturers who are entitled to use the common GI provided they adhere to the quality and other standards accorded to the GI. It has often been argued that a carefully structured legal protection of GI’s could facilitate the socio-economic development of producers of GI’s products including those local and village communities in developing countries.[1]
The TRIPS agreement envisages protection for Geographical Indications under Sections 22-26. The interesting feature of the TRIPS Agreement is that it grants extra protection to wines and spirits.[2] It is said that the provision for extra protection was granted to protect the traditional knowledge of the local wine makers of Europe at the time of the negotiation of the TRIPS Agreement. On the same lines, another important issue that has gained importance in the international scenario is the debate over the protection of traditional knowledge being covered within the purview of geographical indications. The quality, reputation or the unique characteristics of many of the geographical indications are the result of traditional and ancient methods and formulae that are transmitted from one generation to the other.[3]
MEANING OF TRADITIONAL KNOWLEDGE
WIPO defines traditional knowledge as “tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”[4] The reference to “tradition-based” means “knowledge systems, creations, innovations and cultural expressions which have generally been transmitted from generation to generation.”[5]
Traditional knowledge does not exist in a vacuum to be rolled out for use in a particular geographical indication. Rather, for the people who are privy to it, traditional knowledge forms part of everyday life, becoming part of the process of earning a livelihood; they practice traditional knowledge without being consciously aware of it.[6] Traditional knowledge could be described as different varieties of products available in the society as an outcome of tradition-based intellectual activity.[7] They are based on knowledge systems transmitted from generation to generation and constantly evolving depending upon changes in the environment.[8]
To save such precious and useful traditional knowledge from dying and being withered away, it is important that it should be protected. Also, as aforementioned, it is also important for the livelihood of the producers/manufacturers/owners of such traditional knowledge that it should be given due importance buy protecting it as well as promoting it commercially.
SUITABILITY OF GEOGRAPHICAL INDICATION PROTECTION FOR TRADITIONAL KNOWLEDGE
Products identified by a geographical indication are often the result of traditional processes and knowledge carried forward by a community in a particular region from generation to generation. Similarly, some products identified by a geographical indication (GI) may embody characteristic elements of the traditional artistic heritage developed in a given region. This is particularly true for tangible products such as handicrafts, made using natural resources and having qualities derived from their geographical origin.[9]
GI’s do not directly protect the subject matter generally associated with Traditional Knowledge, which remains in the public domain under conventional IP systems. However, GI’s may be used to indirectly contribute to their protection, for instance, by preserving them for future generations. This can be done, for example, through the description of the production standards for a GI product, which may include a description of a traditional process or traditional knowledge.[10]
Traditional knowledge does not easily fit inside any intellectual property systems. It could be said traditional knowledge can be granted protection under trademark, copyright, trade dress, etc. But, due to the territorial and cultural characteristics of geographical indications, this form of intellectual property has been identified by some observers as better suited to the protection of certain kinds of traditional knowledge than other forms of intellectual property. Another reason why Geographical Indications would be the suitable way to protect traditional knowledge is because GI provides indefinite protection as compared to some other intellectual properties which provide for a definite period of protection.
If we examine the relation between the nature of traditional knowledge associated with GI’s, we can find that in a number of cases the knowledge is widely known and available not only to all members of the locality but also to others who are interested. Only in a few cases the traditional knowledge is completely kept secret and known only to limited members involved in the production. Since the traditional knowledge in many cases are widely known, the protection of GI’s never prevents the Traditional knowledge associated with it from being used by others in producing similar products and selling it under different names. In such cases protection for Traditional knowledge is possible only in cases where it is not practically possible to trade on the product using a different name since the traditional knowledge is so closely merged with the GI’s. Another circumstance one could envisage where effective protection of TK using GI’s might occur are in cases where the producers keep the knowledge secret and market the products using the GI’s. These limitations seems to be the reasons for the GI laws not addressing the wider question regarding prevention of the use of traditional knowledge without permission of the holders of the knowledge.
GEOGRAPHICAL INDICATION PROTECTION TO TRADITIONAL KNOWLEDGE IN INDIA
Geographical Indication protection has been granted to a number of traditional knowledge in India. A few of them have been discussed below:
- Kancheepuram Silk Sarees[11]
Kancheepuram is a city in Tamil Nadu where sarees of pure mulberry silk are hand woven in a particular manner that three single threads are twisted together to give it a particular texture, pattern and finishing. Also, use of “Zari” (original gold thread) is an essential element in a Kancheepuram Saree. “Kancheepuram Silk” is a registered GI in the name of the Department of Handlooms and Textiles, Government of Tamil Nadu, in respect of Textile Goods falling in class 24 & 25.
- Vazhakulam Pineapple[12]
Vazahkulam, known as the Pineapple City, is located in Muvattupuzha taluka of Ernakulam, in the state of Kerala. The pineapple plantation started here around the 1940’s. Vazhakulam pineapple locally known as ‘Kannara’ is a Mauritius variety coming under the species Ananas comosus. The fruit has a pleasant aroma, the fruit flesh is crisp and golden yellow in colour and the juice is very sweet. It is unique in aroma, flavour and sweetness due to its high sugar content and low acidity. Vazhakulam pineapple was registered as Geographical Indication (GI) No. 130 under Agricultural-Horticultural product at the GI Registry, Chennai on 4th September 2009.[13]
- Malabar Pepper[14]
We can find a number of instances in History of the foreigners coming to the Malabar Coast to trade in Indian spices in general and pepper in particular. It is stated that the exorbitant price of pepper during the middle ages, a trade which was monopolized by the Italians, forced the Portuguese to seek a sea route to reach India. Pepper is used as a spice and it has also got medicinal properties. Malabar pepper is cultivated in the geographic regions comprised in the Malabar region of the erstwhile Madras Presidency. Malabar pepper accounts for around 25 per cent of the entire world’s supply of pepper. This pepper is unique for its sharp, hot and biting taste. Highly aromatic, with a distinctive fruity bouquet, it has the perfect combination of flavour and aroma.
- Muga Silk of Assam[15]
Muga silk is a registered GI from the state of Assam and was registered in 2006, which is incidentally the first registered GI from the north-eastern region. Historical evidence suggests that Assam’s silk industry had reached the pinnacle of perfection by the 7th century A.D. In the present day, muga silk constitutes the state’s most popular export product after Assam tea.
COMMENTS
An overview of the scheme of geographical indication protection being granted to traditional knowledge would definitely lead us to believe that the world (and India as well) has risen and acknowledged the importance of knowledge which has been a part of our lives since time immemorial and has contributed to our day to day life in a big way. The people who possess this knowledge are often the rural and indigenous sections of the society who have contributed in a commendable manner to ensure that the indigenous knowledge could be carried forward to the future generations for their benefit and for the conservation of culture and nature. It would be the most obvious things to provide protection to such persons and in turn support their well being as far as we can. It is only because of them that extremely useful and indigenous knowledge did not get locked up in private hands.
‘Geographical Indications’ is the intellectual property protection which is being adopted for the protection of traditional knowledge. It is important to state here that geographical indications is the most viable protection which could be granted to traditional knowledge as it involves the concept of ‘appellation of origin’ and ‘indication of source’ which is satisfied by traditional knowledge. A particular traditional knowledge is, in most cases, is confined to a very small geographical area and therefore can easily satisfy the threshold of ‘appellations of origin’.
It has been fascinating to see that India has granted around 208 GI’s from the adoption of the GI Act in the year 1999. A number of them involve traditional knowledge in its making/production. A glance through this list would enable us to see that the Indian Government has taken some effort to go out to the people who possess such knowledge and by giving it its due recognition which would benefit the possessors of such knowledge as well as the people at large.
Recently, there has been much discussion in the media regarding the supposed proposal being made by India in the United Nations (except the appeal to declare a ‘International Yoga Day’) for granting Geographical Indication to ‘Yoga’. According to the news articles and blogs, it was a new ministry AYUSH (formed by the new cabinet) which has forwarded such an application. It would sound absurd to me if GI protection is granted ‘Yoga’ as being considered as a traditional knowledge only because it was practised since a long period by members of the Hindu community. The result of such a geographical indication protection would mean that any person who is not accredited or trained or is not performing the Yoga as prescribed by the learned men in India would not be entitled to use the term ‘Yoga’. Also, in addition to this, it is important to note that normally a product or an item is granted GI protection. It would happen for the first time that a GI would be granted for an activity.
I would think that traditional knowledge being protected by Geographical Indication is sufficient in the present scenario. But as the complexities would grow in this field, a sui generis system of protection for Traditional Knowledge would be a better option as it would enable us to concentrate better on the protection of such knowledge and ensure that it does not diminish or diffuse with time.
ENDNOTES:
[1] By N.S. Gopalakrishnan, Prabha S. Nair & Aravind K. Babu, Cochin University of Science and Technology, Exploring the Relationship between Geographical Indications and Traditional Knowledge: An Analysis of the Legal Tools for the Protection of Geographical Indications in Asia (Working Paper), ICTSD Programme on IPRs and Sustainable Development, April 2007
[2] Art. 23, TRIPS Agreement
[3] Sergio Escudero, “Working Paper on International Protection of Geographical Indications for Developing Countries”, July 2001, South Centre, available at http://www.southcentre.org/publications/workingpapers/wp10.pdf
[4] WIPO, Glossary of Terms, http://www.wipo.int/tk/en/glossary/
[5] WIPO IGC, Traditional Knowledge-Operational Terms and Definitions, at 11, WIPO Doc. WIPO/GRTKFICI3/9 (May 20, 2002)
[6] Sunita K Sreedharan, Geographical indications and traditional knowledge, available at http://www.iam-magazine.com/Intelligence/IP-Lifecycle-India/2013/Articles/Geographical-indications-and-traditional-knowledge
[7] Supra at 1.
[8] Ibid.
[9] http://www.wipo.int/geo_indications/en/faq_geographicalindications.html (last accessed January 27, 2015)
[10] Ibid.
[11] Official Notices, Government of India, Geographical Indication Journal, No. 19, October 30, 2007, pg. 5.
[12] Official Notices, Government of India, Geographical Indication Journal, No. 22, June 30, 2010, p.7.
[13] Pineapple sector in Kerala: Status, opportunities, challenges and stakeholders, Dr. P. P. Joy, Associate Professor & Head, Pineapple Research Station (Kerala Agricultural University), Vazhakulam
[14] Official Notices, Government of India, Geographical Indication Journal, No. 19, October 30, 2007, pg. 9.
[15] Id. at pg. 15.
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