Proving Provenance? Geographical Indications Certification and its Ambiguities
Introduction
For foodstuffs and agricultural products, provenance matters like never before. While an individual’s food consumption choices are a private matter, in the aggregate these choices have considerable social consequences, impacting on economic development, ecological sustainability, global transport systems, and the relationship between urban and rural areas (Morgan, Marsden, & Murdoch, 2006). Geographical Indications (GI) protection systems are legal regimes which facilitate the signaling of this provenance in marketplaces. According to the World Intellectual Property Organization (WIPO), the “basic concept underlying GIs is simple, and familiar to any shopper who chooses Roquefort over ‘blue’ cheese or Darjeeling over ‘black’ tea… [these are] well-known examples of names associated throughout the world with products of a certain nature and quality, known for their geographical origin and for having characteristics linked to that origin” (WIPO, 2012, p. 8). Registration-based GI certification systems verify the content of these interdependent provenance and quality signals, as a prerequisite to formal legal recognition and protection. Yet what precisely does it mean for a regional speciality product to be legally certified as a GI? What formal guarantees and reassurances are provided by public authorities? And how effective is certification? Motivated by scholarship which has investigated the effectiveness of Fairtrade certification (Steering Committee, 2012, Beuchelt and Zeller, 2011, Ruben and Fort, 2012), this paper critically assesses the extent to which a product’s link to a defined geographical region (provenance), associated quality attributes and adherence to traditional methods of production (authenticity) are verified by this public, as opposed to private, authentication process.
A close study of GI registration systems is rewarding for primarily two reasons. First, certification verifies the existence of a particular type of link with the region of origin. According to Article 22.1 of TRIPS, GIs are “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). Certification ensures that only those products which satisfy such a formal legal definition ought to be recognized and protected. This reinforces the credibility of GIs as market signals and mitigates the effects of market failure arising out of imperfect information (Crespi & Marette, 2003). Additionally, drawing on place-based theorizing emphasizing the notion of embeddedness,1 the verification of this close connection to a region is considered crucial for achieving endogenous development goals (Augustin-Jean, 2012, FAO, 2008, Réviron et al., 2009). As Bowen (2010b, p. 210) explains: “Because GIs root production in particular places and protect the unique environmental and cultural resources that have developed over time in these places, scholars and development practitioners have framed them as a means of localizing production within the framework of globalization”. Optimistic appraisals suggest that “GIs may be as close to a comprehensive, equitable and market-oriented rural development package as we have seen” (Giovannucci, Josling, Kerr, O’Connor & Yeung, 2009, p. 5). Registration-based certification mechanisms require this localizing link to be explicitly articulated, which then forms the axis for territorial development strategies. A suitable “link with the geographical origin will constitute the essential point on which an application for registration of a product as a geographical indication will be based” (WIPO, 2003, p. 9). Therefore investigating the extent to which GI registration systems certify this close connection to place is worthwhile.2
The second reason relates to comparatively greater ‘public’ or state involvement in GI protection, which sets it apart as an unusual category of intellectual property (IP). While the preamble to TRIPS confirms that “intellectual property rights are private rights”, by contrast GIs are characterized by their high degree of state or quasi-public involvement (Biénabe, Jordaan et al., 2013, Marie-Vivien, 2010, OECD, 2000). As we will see below, manifestations of this state involvement are evident in the formal examination and certification process conducted by public authorities, within the context of sui generis GI registration systems.3 In pursuing this line of enquiry, the analysis presented here draws primarily on the European Union’s (EU) GI registration system as a model, since it is the most institutionally well-developed regime and an exemplar of prescriptive, sui generis protection in international debates (Gangjee, 2012a, pp. 201–202). If certification by public authorities is proving to be successful anywhere, it should be here. The analysis is supplemented by insights from emerging GI regimes from the global South, which suggests that the findings in this paper are more broadly relevant.
Section 2 commences by describing the various ways in which there is state involvement in GI protection. The registration-based certification process is the defining framework for state involvement, enabling a catalog of wider interventions by public authorities. It then considers the justifications – as identified by the Court of Justice of the European Union (CJEU) and the European Commission (EC) – for having such a certification system. These justifications relate to the official guarantee of provenance, quality, and authenticity that benefits consumers. Section 3 then outlines the formal stages of the registration process and the details required by the product specification. Stated briefly, registration is designed to verify information relating to provenance, quality, and potentially authenticity, which facilitates the signaling function of GIs. Section 4 then considers the operation of this regime in practice, drawing on recent empirically grounded reviews of the European GI system. The gaps and flexibilities identified during the certification process expose the limitations of attempts to guarantee origin, quality, and authenticity by public authorities. For instance, there are formally recognized exceptions to the requirement that raw materials must be sourced from within the region of origin. If the raison d’être of GI protection is to guarantee geographical origin, to what extent can such exceptions be reconciled? Formal registration has inherent blind spots, which dilutes the nature of the certification guarantee. Therefore as opposed to relying on this systemic guarantee, Section 5 concludes by drawing attention to the recent interest in the design of individual product specifications and which is framed by insights from collective action theory. The participants involved in such drafting initiatives extend well beyond public authorities, to include NGOs/civil society organizations, networks of academic researchers, and international organizations. This exposes the hybridity of influences that exist between state or market paradigms. The paper therefore concludes by identifying product specification design as a more promising site for interventions that would enable GIs to deliver on their developmental potential.
Section snippets
Mapping state involvement
As a legal regime which regulates the use and misuse of commercially valuable geographical brands in the marketplace, GI protection is often compared with trademark law (Gangjee, 2012a, pp. 291–294). Both regimes are considered by some to be functionally equivalent mechanisms to enhance informational efficiency. By granting exclusive rights to control the use of signs, these legal regimes facilitate uncluttered origin signaling in the marketplace (Teuber, 2011a). While Articles 22–24 of TRIPS
An overview of the certification process
There are four GI-related registration systems in the EU, distinguished on the basis of subject matter: (i) wines; (ii) aromatized wines, (iii) spirits, and (iv) agricultural products as well as food stuffs.
Certification and its ambiguities
As Section 2 has established, certification can redress informational asymmetry and provide credible guarantees to consumers. An effective certification signal is also the prerequisite for achieving a range of broader developmental goals. Section 3 identifies the key stages of registration, where detailed information is provided by the applicant to verify provenance and authentic (i.e., historic and consensually developed) methods of production. The registration process endeavors to verify this
Conclusion: the turn to the product specification
Certification is justified because of its ability to redress informational asymmetries and benefit consumers. For GIs, certification by public authorities under a sui generis regime is considered to be sufficiently rigorous and therefore more appropriate for satisfying consumer preferences as well as achieving territorial development strategies. However the previous Sections of this paper have argued that there are considerable gaps between theory and practice: (1) While individual GI products
Acknowledgements
My thanks to the anonymous referees and one in particular for extensive feedback. I am also grateful to Barbara Pick for comments and to Madhavi Sunder, Anupam Chander, and Mario Biagioli for the opportunity to present a very early draft of this paper at the Brand New World conference, UC Davis in 2013.
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