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29. Geographical indications and cultural rights:

The intangible cultural heritage connection?
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 social relations for rural communities are better
supported.2 Once a cultural heritage component to GI protection is identified, this
1
See 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’).
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 and 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.
544
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The intangible cultural heritage connection? 545
suggests that GIs could potentially be accommodated by cultural rights, within a human
rights framework. Consequently Section 3 approaches the potential cultural heritage
interface from the human rights perspective. It first clarifies 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 international cultural rights provisions
mandate the protection of both tangible and intangible heritage, then GI protection may
be one possible avenue for fulfilling these legal obligations. 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 protec-
tion, Section 4 investigates an alternative possibility. It identifies conceptual parallels
between the manner in which ICH has been conceived in international legal discourse
and the inter-generational, 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 sui generis GI protection and ICH
protection regimes 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 GI
regimes and the international protection of ICH when it comes to working with
concepts like tradition and authenticity.
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:
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].
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 (CUP, 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.

546 Research handbook on human rights and intellectual property
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 infor-
mation 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 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
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 Mechan-
ism’ (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 Socio-Economics 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 Indica-
tions: Lessons Learned from the Economic Literature’ (EEAE Congress Conference Paper,
2011).
7
Club goods are impure public goods characterised 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.

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 are to 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
are assumed to 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 nineteenth and twentieth 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 d’Origine system developed around a notion of terroir that privil-
eged physical geography – geological and climatic 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, product histories and associated
cultures of production – usually designed around the particularities of local conditions
and capabilities – took their place alongside natural factors in the Appellation d’Origine
Contrôlée regime which followed.10 This called for a series of recalibrations in the
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.
10
The matter is debated in: B. Parry, ‘Geographical Indications: Not All Champagne and
Roses’ and D. Gangjee, ‘(Re)Locating Geographical Indications: A Response to Bronwyn Parry’

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 (e.g. charcuterie, cakes and pies)12 or even textiles and crafts.13
All these products are conventionally understood as having cultural heritage dimen-
sions. 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 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.
in L. Bently, J.C. Ginsburg and J. Davis (eds), Trade Marks and Brands: An Interdisciplinary
Critique (CUP, Cambridge 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 and 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 S.W. Mintz and C.M. du Bois, ‘The Anthropology of
Food and Eating’ (2002) 31 Annual Review of Anthropology 99.
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
(Johns Hopkins University Press, Baltimore 2003); P. Boisard, Camembert: A National Myth
(University of California Press, Berkeley 2003).
18
The standard reference point is E. Hobsbawm and T. Ranger (eds), The Invention of
Tradition (CUP, 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’).

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 – 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 picker’s 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. 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 product’s
name, a product description including distinctive chemical or organoleptic characteris-
tics, 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
19
See respectively http://www.prosciuttodiparma.com/en_UK/ (accessed 4 January 2014)
and the successful Darjeeling registration application filed before the Indian Geographical
Indications Registry, as published in the Geographical Indications Journal (1 July 2004) Vol 1,
at: http://ipindia.nic.in/girindia/ (accessed 4 January 2014).
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
(FAO, 2nd ed, Rome 2009–10) 49–92.
21
Ibid., 23.

divergences and dissent.22 Designing institutions which facilitate the former, through
greater participation and transparency, while inhibiting the latter seems to be the most
promising approach.
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 Ardèche in France, where chestnut production ‘grew to be the
defining factor in community life and cultural heritage. The sheer extent and density of
the Ardèche 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 occa-
sions.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 region’s
distinct identity.28 These initiatives can be synchronised with general tourism promo-
tion 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
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., 245–6.
24
L. Berard and P. Marchenay, From Localized Products to Geographical Indications:
Awareness and Action (CNRS, Bourg-en-Bresse 2008) 54.
25
Ibid., 38.
26
A. Lecoent, E. Vandecandelaere and J.-J. Cadilhon (eds), 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, supra note 22, 246–51.
29
J. Suh and 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 Guérande, Loire-Atlantique,

stages within the GI protection process. Nevertheless, it is worth emphasising that a

product specification only potentially accommodates cultural practices – the choice to
incorporate them is left to the various supply chain actors involved with the production
process for any given product. The mere 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 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, developing an understanding of 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 necessary. 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
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 Inter-
national Journal of Cultural Property 14.
31
E.g. C. Bramley, E. Bienabe and J. Kirsten (eds), Developing Geographical Indications in
the South: The Southern African Experience (Springer, 2013); FAO and SINER-GI, Linking
People, Places and Products, supra note 20; E. Barham and B. Sylvander (eds), Labels of Origin
for Food (CABI, 2011) 157–95.
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
K. Ziegler, ‘Cultural Heritage and Human Rights’ (Oxford Legal Studies Research Paper
Series; No 26/2007) 13; F. MacKay, ‘Cultural Rights’ in M.E. Salomon (ed), Economic, Social

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 one’s 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.
Commentary on cultural rights usually commences with the Universal Declaration of
Human Rights 1948 (UDHR)36 and Art. 27 in particular:37
(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 develop-
ment and the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispens-
able 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 International Covenant on Civil and Political Rights

(ICCPR) 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.
Article 27 is therefore notable since the other cultural rights are characterised as
individual rights. In general, cultural rights in the narrow sense are:
And Cultural Rights: A Guide For Minorities And Indigenous Peoples (Minority Rights Group
International, 2005) 83, 83.
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.

related to 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 inter-
national 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 instru-
ments.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 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
39
Ziegler, ‘Cultural Heritage and Human Rights’, supra note 34, 11.
40
J. Symonides, ‘Cultural Rights: A Neglected Category of Human Rights’ (1998) 158
International Social Science Journal 595.
41
Yupsanis, ‘The Concept and Categories of Cultural Rights in International Law’, supra
note 35, 207–9.
42
Y. Donders, ‘Do Cultural Diversity and Human Rights Make a Good Match?’ (2010)
International Social Science Journal 15, 16.
43
Yupsanis, ‘The Concept and Categories of Cultural Rights in International Law’, supra
note 35, 225–6.
44
Ibid, 212.

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 200145 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 précis suggests that cultural rights are relatively underdeveloped.
Yet despite the relative neglect, potential conflict with universalist commitments and
definitional ambiguities, 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 therefore problematic for its relativistic as opposed to universalist orien-

tation. 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 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
45
(2002) 41 ILM 57.
46
W. Logan, M. Langfield and M.N. Craith, ‘Ch 1: Intersecting Concepts and Practices’ in
W. Logan, M. Langfield and M.N. Craith (eds), Cultural Diversity and Human Rights:
Intersections in Theory and Practice (Routledge, London and New York 2010) 4.
47
M. Daugbjerg and T. Fibiger, ‘Introduction: Heritage Gone Global. Investigating the
Production and Problematics of Globalized Pasts’ (2011) 22 History and Anthropology 135,
135–6.
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.

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, UNESCO’s
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 of
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 individual’s 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 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 may be instructive. Some
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’, supra note 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 (OUP, London,
2009) 453.
54
T. Kono (ed.), Intangible Cultural Heritage and Intellectual Property: Communities,
Cultural Diversity and Sustainable Development (Intersentia, Antwerp 2009).
55
Resolution adopted on the report of Commission IV at the 20th plenary meeting, on 2
November 2001.

scholars have begun to acknowledge the parallels 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.
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;
de-emphasising 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
56
R.J. Coombe and N. Aylwin, ‘Bordering Diversity and Desire: Using Intellectual Property
to Mark Place-Based Products’ (2011) 49 Environment and Planning A 2027, 2029.
57
E.F. da Silva and P.P. 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, November 2009) 87.
58
Insight Consulting et al, Study on Geographical Indications Protection for Non-
Agricultural Products in the Internal Market (Final report, 18 February 2013) 118.

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 ‘authenti-
city’,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 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 accom-
modated 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
59
See D. Fairchild Ruggles and H. Silverman, ‘From Tangible to Intangible Heritage’ in D.
Fairchild Ruggles and H. Silverman (eds), Intangible Heritage Embodied (Springer, 2009) 1; N.
Aikawa-Faure, ‘From the Proclamation of Masterpieces to the Convention for the Safeguarding
of Intangible Cultural Heritage’ in L. Smith and N. 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.
61
J. van Niekerk, ‘The Use of Geographical Indications in a Collective Marketing Strategy:
The Example of the South African Wine Industry’ 1 September 1999 (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
ECJ, Case C-469/00, Ravil SARL v. Bellon Import SARL and Biraghi SpA [2003],
Judgment of the Court of 20 May 2003, ECR I-05053; [2004] ETMR 22, at [49] (‘Grana
Padano’).
64
Broude, ‘Taking “Trade and Culture” Seriously’, supra note 16.

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 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 [those] 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
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.
67
F. 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
M.L. Pratt, ‘Thoughts on Intangibility and Transmission’ in L. Arizpe and C. Amescua
(eds), Anthropological Perspectives on Intangible Cultural Heritage (Springer 2013) 79, 79.
69
Berard and Marchenay, From Localized Products to Geographical Indications, supra note
24, 32–3.

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 [and GI protection]. Here
GIs may be one pragmatic implementation option to satisfy the obligations under Arts.
2 and 11–13 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.


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JOBNAME: Geiger PAGE: 1 SESS: 4 OUTPUT: Mon Jan 26 12:16:52 2015

29. Geographical indications and cultural rights:

1. INTRODUCTION: CULTURAL HERITAGE AS THE BRIDGE?

The intangible cultural heritage connection? 545

2. GEOGRAPHICAL INDICATIONS AND CULTURAL HERITAGE

Christophe Geiger - 9781783472413

546 Research handbook on human rights and intellectual property

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 547

similarity, instrumentalist theory justifies exclusive rights in a congruent manner for

Christophe Geiger - 9781783472413

548 Research handbook on human rights and intellectual property

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 549

Christophe Geiger - 9781783472413

550 Research handbook on human rights and intellectual property

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 551

stages within the GI protection process. Nevertheless, it is worth emphasising that a

3. CULTURAL RIGHTS AND THE ACCOMMODATION OF

Christophe Geiger - 9781783472413

552 Research handbook on human rights and intellectual property

These commitments are re-emphasised in Art 15 of the International Covenant on

However it is with Art. 27 International Covenant on Civil and Political Rights

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 553

This aspect is problematic since heritage claims inevitably involve groups.

A relativistic approach is also premised on the ability to identify individuals as

Christophe Geiger - 9781783472413

554 Research handbook on human rights and intellectual property

Heritage is therefore problematic for its relativistic as opposed to universalist orien-

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 555

Protecting cultural heritage also facilitates the advancement of cultural diversity52 as

4. INTANGIBLE CULTURAL HERITAGE

Christophe Geiger - 9781783472413

556 Research handbook on human rights and intellectual property

scholars have begun to acknowledge the parallels between formal recognition as a GI

means the practices, representations, expressions, knowledge, skills – as well as the

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 557

Christophe Geiger - 9781783472413

558 Research handbook on human rights and intellectual property

setting up of tradition as somehow frozen and in opposition to change is itself

Christophe Geiger - 9781783472413

The intangible cultural heritage connection? 559

Christophe Geiger - 9781783472413

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