My chapter in Food heritage and Nationalism in Europe, edited by Ilaria Porciani, reflects on how connections between tradition, heritage and intellectual property have been activated in the global food market. In the chapter, I also discuss the role and function of IP in supporting traditional and heritage foods, while assessing the limitations of such legal approaches and exploring alternative models that may be more flexible in determined contexts and environments.
Here is an excerpt.
“Champagne, parmigiano reggiano, Darjeeling tea. These are only a few among the traditional food products that have acquired particular relevance and visibility in the global food market. Their connection with history, a clearly identifiable geographical origin and unique manufacturing methods are highly regarded, allowing these items, usually produced in limited quantities, to gain reputation and command higher prices than similar goods. Furthermore, they may be considered as cultural expressions of whole communities rather than the brainchild of any one manufacturer. As these specialties attain wide recognition, the possibility arises that other producers may try to sell analogous goods of lesser quality or to use the same or similar-sounding names. To fight against counterfeits and copies, producers of high-reputation traditional goods have turned to the legal protection offered by Geographical Indications (GIs), a relatively new category of intellectual property (IP). Under the form of the privately owned trademark, this legal instrument had already been used to defend products as the expression of individual creativity and entrepreneurship.
This chapter reflects on how connections between tradition, heritage and intellectual property have been activated in the global food market. Intellectual property has acquired growing relevance in the identification, support and safeguarding of local and traditional food products. However, due to their legal nature and their regulatory structure, IP-based apparatuses risk stifling the evolution of food traditions, which by nature change and shift over time. Furthermore, they are not easy to establish for many communities, especially in the Global South, due to their complexity, their rootedness in Western juridical systems and the financial and logistic efforts they require. As traditional practices and products, as well as the products originating from them, are increasingly framed in terms of heritage, other approaches such as Slow Food’s Presidia, UNESCO’s Intangible Cultural Heritage (ICH) and the new expanding field of Indigenous Knowledge (IK), are emerging. ..
As they enter the market, acquiring reputation and commercial value, traditional and heritage products have been ensnared in the legal categories of intellectual property, an altogether Western approach that nevertheless has forced itself well beyond the areas in which it originated.
Intellectual property started being used on food during the second half of the 19th century at a time when food industrialization in Western Europe expanded while increasingly larger segments of the population experienced an unprecedented process of urbanization. When they were not producing food themselves, people who lived in the countryside were used to being close to the places where what they ate came from and often personally knew the producers. They were able to understand the origin of their food and how it was produced. When they moved into the city, recently urbanized consumers experienced anxiety about their purchases, in part because counterfeiting and adulteration were common practices, forcing city authorities to police markets and to establish specialized science laboratories to check for biological and chemical hazards.
Intellectual property partly appeared and was applied to food to establish guarantees about the quality of goods and their origins. The first were trademarks, which identified specific products as belonging to or produced by a specific company. New ways of connecting products with their places of origin also emerged, generating the specific kind of IP that now we call GIs. In 1855 a system that classified Bordeaux wines – and implicitly the estates (châteaux) that produced them – was formalized in France, defining five levels of relevance and worth known as cru, the French word for “growth”.
This is usually indicated as the first instance of the concept that would in time support the development of GIs, an approach that was already fully formed during the 20th century and that was eventually codified in the international convention called Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the agreement of the World Trade Organization (WTO) that deals with IP. This document, signed in 1994 as one of the founding documents of the WTO, was the result of negotiations between the European Union, which in 1992 had already launched its own legal scheme of GIs, separate and distinct from other forms of IP, and other countries, such as the United States, Australia and Argentina, which instead extended the already existing system of trademarks and collective marks to cover traditional and heritage foods which enjoyed much less prestige, recognition and economic values than in Europe in the first place.
Overall, the success of protection of food under IP, in the form of either sui generis GIs or mark-based systems, depends on many circumstances and factors, such as social and political dynamics at the local level (including labor relations and power structures) and the cultural attitudes of all the entities involved, as well as the participation of public institutions, private agencies and non- governmental organizations (NGOs).
Any consideration of GIs needs to be understood within a larger critical assessment of IP as a Western legal framework that was more or less subtly imposed on non-European countries during colonization and, later, through international conventions, trade agreements and the pervasiveness of Western economic and financial instruments that are central to the smooth functioning of the contemporary food system (Arewa 2006). Such approaches are based on written documents, both as core instruments in Western law methods and procedures, and as proofs of the historical past of a product and its connection to long-lasting traditions. As a consequence, traditions rooted in communities that in the past were left at the margins of mainstream society and often without access to education and literacy, such as women and ethnic minorities, are diffi- cult to prove. Furthermore, cultures existed and still exist that are based on oral transmission of knowledge, which makes the written nature of IP problematic.
In general, local political and social arrangements play an important role in determining which producers and their associations obtain financial and political support in their efforts to launch a Geographical Indication. Intellectual property–based systems are usually rather difficult to establish for communities, especially in the Global South. Legal and administrative costs as well as logistical difficulties related to the establishment of a GI may discourage some producers from even considering the possibility of using this instrument.”
To read more about this topic and other related issues also check out Knowing Where It Comes From: Labeling Traditional Foods to Compete in a Global Market.