Marie-Vivien D., 2010. The role of the state in the protection of geographical indications: From disengagement in France/Europe to significant involvement in India. The Journal of World Intellectual Property, 13: 121-147. http://dx.doi.org/10.1111/j.1747-1796.2009.00375.x
Innovation and Development in Agriculture and the Agrifoods Sector (UMR Innovation)
Geographical indications are distinctive signs that provide a means of enhancing the value of the natural resources of a place and the know-how of its population. Indian law on the matter raises several questions regarding the validity of geographical indications that are based on know-how alone in the absence of natural factors, the role of the State in their protection, and their legal nature. Hence the idea of rejecting the concept of property to adopt that of rights of use of a common good, a qualification that applies to many of the countries in which CIRAD is active.
India, an emerging country with a long history, is endowed with many regional products and has set up a unique legal framework to protect its geographical indications, shedding new light on the concept of the link between a product and its origin. The law, which protects both handicrafts and traditional plant varieties – the reflection of Indian cultural identity – is a response to the threat of globalisation. But this experience calls into question French and European law as regards the recognition of traditional knowledge in the absence of natural factors to justify local origins, while confirming the value of geographical indications as a means of protecting the diversity of heirloom plant varieties. Debates on handicrafts extend well beyond India, finding an echo in all Southern countries as well as in Europe, and question the principle of a legal system with identical protection whether or not natural factors are present.
The omnipresence of the Indian State in the protection of geographical indications contrasts with the withdrawal of public intervention in France linked to the context of economic liberalisation. The Indian government’s intervention, which results in the registration of geographical indications in the name of the State, is justified by the protection of disadvantaged producers and the need to preserve the products of the Indian identity.
The Indian model has two subjects of law, with on one side the owner of geographical indications, the representative of producers, which proves to be directly or indirectly the State, and on the other side the producers who are users of these indications, and questions the legal nature of geographical indications, whether the fact that they are collective or that they belong to public law. In view of Indian experience, where this property model does not permit sufficient accession by users, while the model of property is evaded in Europe, it is proposed that a geographical indication should be qualified as a right of use of a common good, and that the principle of property should be rejected. The question of the role played by the State in the implementation of this right – a State whose solidity and transparency are changeable – appears as a cross-cutting, crucial one in view of its omnipresence, whatever the system.
This research provides new insights into the geographical indication projects in which CIRAD is involved and for which it provides expertise, in West Africa, South America and Asia, concerning the intellectual creations in question, both agricultural and non-agricultural, or the most appropriate institutional mechanisms to put in place.