Can Traditional Knowledge Owners and Producers in Developing Countries Use Geographical Indications for Protection and Economic Development Gain?

Abstract

This paper examines whether, in the current environment of international economic law, Geographical Indications (GIs) as an Intellectual Property (IP) system can be used to protect forms of Traditional Knowledge (TK) in developing countries and achieve economic development for local communities. The current situation concerning TK in international economic law is assessed as well alternative approaches to IP protection for unique and niche products from developing countries, including sui generis measures. The context is the recognition given to the development dimension in the TRIPS agreement in the Doha Development Agenda, including current deliberations on extending the higher level of protection given to wines and spirits to other products and on a global agreement for protecting TK and TCE. Besides the multilateral developments, there is burgeoning interest in GIs as a tool for economic development, especially in the EU and developing countries, exemplified by their negotiating positions on extending the definition of GIs in the TRIPS Agreement. A bilateral trade agreement, the CARIFORUM-EU Economic Partnership Agreement, and two regional agreements on protection of TK, TCE and GR, one in Africa and the other in the Pacific region, are examined given features that emphasize GIs and TK protection. The paper traverses the current literature and debates on the GI-TK linkage in particular and reflects on a number of cases on GI and TK products from developing countries that serve to highlight both the need for protection and the potential for economic and local community development. The main conclusion is that GIs can be used to protect forms of TK, although the legal instruments are largely in national and regional legal frameworks and bilateral trade agreements. Finally, there is a potential to impact on economic development, but evidence at this stage is not clear, better understanding of the global value chains for products is needed and ongoing research is necessary.