This blog is authored by Nargees Basheer, a fourth-year law student pursuing BA.LLB (Hons.) from The National University of Advanced Legal Studies (NUALS), Kochi.
Geographical indications (GIs) are signs used to designate the place of origin of goods where a given quality, reputation or other characteristics of the good is essentially attributable to its geographical origin. As the definition suggests, the geographical origin of the goods is what renders them worthy of protection. For a good to be protected through a GI tag, it should be attributable to the geographical location. The particular geographical conditions that help produce the good such as the climatic factors and the ecosystem are very necessary to ensure uniform production of the good. It is in the context of biological resources being used for the production of goods that are protected through GI that the discussion of the role of GI in the conservation of biodiversity comes into the picture. In the most basic sense, it is a necessity on the part of the GI owners to ensure that the geographical conditions that contribute to the quality of the good are maintained.
Access and Benefit Sharing and Geographical Indications
Access and Benefit Sharing (ABS) refers to the way in which genetic resources may be accessed, and how the benefits that result from their use are shared between the people or countries using the resources (users) and the people or countries that provide them (providers). The international instruments we have at hand that deal with ABS include the Convention of Biological Diversity (CBD) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. These deal with the issue of misappropriation of genetic resources. Developing countries are rich in biodiversity and many a time developed country and MNCs exploit the biodiversity of these countries without giving them anything in return.
A case that helps understand such misappropriation is that of the Patent Applications on Rooibos Products. In this case, Nestec, a Nestle subsidiary filed four international patent applications for using the plants or extracts from them to treat hair and skin conditions. These plants were originally home to South Africa and a South African environmental group accused Nestle of having violated South African law and the CBD. The need for a Protocol was highlighted with this issue. The instruments came into the picture to ensure that the indigenous and local communities who were the original owners of the genetic resources were made a party to benefit sharing either through monetary or non-monetary means.
The Nagoya Protocol sets out the rules and mechanisms for access to genetic resources and associated TK and supports the fair and equitable sharing of benefits arising from their utilization which is the third objective of the CBD. Sharing of benefits provides an incentive to the local communities to preserve the biodiversity. The Nagoya Protocol encourages research contributing to the conservation of biodiversity. It covers the utilization of genetic resources as well as traditional knowledge associated with it. Linking GI to the Nagoya Protocol and its Access provisions may be a difficult task as GI products, though may use genetic resources as raw materials, rarely retain the genetic information in its original form. The Nagoya Protocol focuses on ‘research and development’ when it refers to ‘utilisation’ of genetic resources and this is generally not included in the implementation of GI. However, in certain cases, the GI product matches the genetic resources. An example of this is the Jinxiang Da Suan which is a local garlic variety from Jinxiang district in Shandon Province of China was registered as a protected GI in Europe. Agricultural GIs are also examples of these.
The irony is that though GIs could be considered the most suitable way to valorise in a fair and equitable manner traditional knowledge, ABS regimes and GI frameworks haven’t been linked concretely with the objective of adapting GI regimes as to perfume ABS. It was taken for granted that ABS schemes were automatically provided through GI. This is because, with respect to ABS in GI, the user and provider are deemed to be one and the same many a times. The issue here is with respect to whether the benefit has already been shared with the providers as they are the users as well. On the other hand, when the GI is a processed good, a system of ABS may be established to ensure that the producer of the raw material is given more benefits.
In the Indian context, the Biodiversity Act of 2002 and the Protection of Plant Varieties and Farmers Rights Act, 2001 are the domestic legislations that have been enacted in accordance with the CBD. The Geographical Indications Act 1999 does not deal with ABS.
Preservation of biodiversity
Keeping aside the link between genetic resources and GI, we may look into how GI helps preserve biodiversity. GI has helped preserve biodiversity on estates and in the locality, enhancing soul fermentation possibilities, prevent bio-piracy, preserve traditional know-how and local cultural heritage. Even though the primary purpose of GI was not to protect biodiversity, specific local biological or genetic resources, high degrees of biodiversity, the ecosystem, specific landscape or good agricultural practices can be major factors for explaining the reputation of the products. GIs help in the preservation of biodiversity by maintaining the ecosystem necessary to produce the good. The rise of agro-industrial generic products has caused difficulties to small and medium farmers which in turn has often obliged them to focus their efforts in market niches that value environment conservation, organic food and landscape preservation. The European olive oil industry which is characterized by extensive use of GIs is a good example of agriculture with many associated positive environmental impacts such as lower rates of soil erosion, improved fire-risk control, water efficiency, lower pollution and higher levels of biodiversity and genetic diversity in olive-tree varieties. A study that looked into the protection of Coorg Coffee in the Western Ghatts acknowledged that a GI specifically tailored to Kodagu could take the direction of specifications tailored to include biodiversity-friendly practices adapted to the local context. However, it was noticed in this study that a GI based on the reputation of the landscape will encourage the conservation of biodiversity only if it succeeds in attracting consumers to a coffee originating from a production system that maintains biodiversity.
A criticism that is often raised is that GI itself cannot necessarily support biodiversity as the product identified by the GI is mostly restricted to a particular variety, which will be stable and homogeneous. This can be interpreted in various ways. With respect to goods that are derived from particular raw materials, the Beaufort cheese code of practices is an example which states that milk can only come from local breeds Tarine and Abondance and that they should be fed at least 75% of local grass and hay. On average the cows should produce not more than 5000 litres of milk per year. Local breeds, local feeding, and limitation of production and raw milk contribute to enhancing biodiversity and maintaining the landscape. The maintaining of such an ecosystem cannot be ignored. On the contrary certain goods that are produced from raw materials that are generic in nature, result in lack of protection to particular kinds of raw material. Many products processed from pork meat do not mention specific breeds of pork which in turn results in a lack of protection to traditional breeds. However, this may not be generalized as a disadvantage as in the wine sector, different varieties are used, with the combination between common varieties, the soil, climate and methods of production being unique. Therefore, as abovementioned, the argument that GI does not necessarily help preserve biodiversity does not hold universally.
Yet another contradicting factor is that when productivity is increased by the use of modern breeds it leads to homogenization of the resource base and thus become a threat – rather than an incentive – to diversity. Thus, GI can be considered to be central to the conservation and maintenance of genetic diversity. Having said this, it is also important to keep in mind that sometimes, standardization of the GI products itself result in focus being attributed to ensuring stability and homogeneity. In Vietnam, the need for the description of pure lines of varieties of sticky rice in the area of Kinh Mon has led to breeding programs aiming to standardize the variety, which then lacks a strong link with the place of origin. Therefore, a collective instead of a GI has been registered. Overexploitation of resources is yet another threat to biodiversity. Furthermore, benefits for conservation arising from GI protection are not the same for developed and developing countries. Developing countries require institutional strengthening, IP protection and management of natural, biological and genetic resources to tap into the benefits.
Conclusion and Suggestions
If GIs are to contribute to policy objectives such as biodiversity conservation and poverty alleviation, they have to evolve and develop - not only as an IPR over the use of geographical names in the trade, but also as an innovative axis to articulate regional value chains in the context of rural development, and growing suburban and urban populations in developing countries. Furthermore, as food is produced in all sectors of primary production (even salt in the mining sector), GIs should be recognized for all rural products and not only for wines and spirits, or exclusively for agricultural products. Forested areas may provide smaller food outputs in volume but they are culturally valuable (e.g. mushrooms) while providing additional environmental services such as carbon sequestration or water, soil and biodiversity conservation. GI differentiation to identify local landraces or underutilized species can create a space for visibility of the sustainable use of wild biological resources and rare and endemic genetic resources in agriculture, both in public policy and in the minds of consumers. Biodiversity concerns can be included in the GI specification, which may not have to be rigid or complex but relate to the factors that ensure the specific quality of the products. It is necessary to preserve traditional varieties and landscapes with high biodiversity. It is also necessary to devise mechanisms by which ABS systems can be implemented in GIs.