Geographical indications and traditional cultural expressions: A comparative legal analysis of the GI laws of Indonesia and India and a case study analysis

• Published date: 01 November 2023
• Author: Sreenath K. P.,Anson C. J.
• Date: 01 November 2023
• DOI: http://doi.org/10.1111/jwip.12274

Received: 5 April 2022

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Accepted: 11 March 2023

DOI: 10.1111/jwip.12274

ORIGINAL ARTICLE

Geographical indications and traditional cultural

expressions: A comparative legal analysis

of the GI laws of Indonesia and India and a

case study analysis

Sreenath K. P. |Anson C. J.

Inter University Centre for IPR Studies,

Cochin University of Science and Technology,

Kochi, India

Correspondence

Sreenath K. P. and Anson C. J., Inter

University Centre for IPR Studies, Cochin

University of Science and Technology,

Kochi, India.

Email: kakkadsreenath@gmail.com and

ansoncj@cusat.ac.in

Abstract

Many of the geographical indications (GI) in developing

countries are intellectual creations with incredible unique-

ness generated by traditional communities and local people.

These products are linked to the culture of that community

and hence can be considered as traditional cultural expres-

sions (TCE). Dev gangjee and Steven Van Uytsel and argued

that TCE can be protected under the law of GI. Moreover,

there are many similarities between GI andTCEs. These two

forms share some unique characteristics that other intellec-

tual property systems are not indulged in as well as not in

concern with of many nations. Handicrafts, textile products,

pottery works, jewellery works are some prime examples of

TCEs protected under the law of GI in India and Indonesia.

This article intendsto validate the compatibility ofGI laws in

providing space for TCEs and give some suggestions for

enhanced compatibility. Case study approach has beenused

as methodology and that the study presumes that the

present GI laws in India and Indonesia are not capable of

adequately protecting TCE.

KEYWORDS

geographical indications, key topics, traditional cultural

expressions, traditional knowledge

J World Intellect Prop. 2023;26:339–356. wileyonlinelibrary.com/journal/jwip © 2023 John Wiley & Sons Ltd.

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1|INTRODUCTION

The uniqueness of traditional intellectual creations has an extensive influence on developing nations' cultures and

economies. Razia Bano states that the carpet sector is contributing US$ 932 million from export to the government

exchequer and providing livelihood over and above to the million weavers and artisans; many of them are made

traditionally by communities of artisans and weavers.

1

Correspondingly, in another study by Mary Elizabeth Terry, it

was concluded that traditional handicrafts play a significant role in the economic development of Botswana.

2

These

can be deliberated as traditional cultural expressions (TCE) since many craft products had a cultural connotation.

3

TCE is not a contemporary creation but an intellectual creation created in ancient times, but it advances as period to

period. It has a unique name and experienced quality, well‐known in that extent. Most of the TCEs are tribal

handicrafts or textiles that have got international attention due to their distinctiveness. The uniqueness of TCE

makes them a suitable contender for intellectual property (IP) protection, but it failed to find a space in the IP

framework due to its unique nature and characteristics. WIPO IGC has started negotiation in 2000 for enacting an

international law for protecting TCE, traditional knowledge (TK) and genetic resources (GR). Such negotiation aims

to pass a sui generis legislation rather than fixing TCE into any specific IP regime. However, the discussions have

been going on for the last couple of years though not reaching any conclusion.

Countries are looking for alternatives in the current IP framework for protecting TCE. One form of property

right, which may fit for protecting this unique expression, is geographical indications (GI). GIs are known for their

unique characteristics and are perhaps the first to grant collective rights under the Intellectual Property structure.

TCEs, even though they are passed on from generation to generation, are continuously evolving, so the probe is,

‘Can it be entrenched under the GI system and will that system cover TCE substantively?’The present study is

trying to clarify the changes required for the proper growth of TCE under GI law. Moreover, there is an increasing

demand for GI tags for nonagricultural products such as Handicrafts, textiles, and so on.

4

Therefore, the present

article has a twofold objective: to understand the nature and extent that GI can offer in protecting TCE. The other is

to analyze the merits and demerits of protecting TCE products. The initial part of the article will discuss the

conceptual understanding of TCE and GI. Second, the similarities between the unique characteristics of TCE and GI

will be explained in short. Third, a legal comparison between the GI laws of India and Indonesia will be made to

comprehend the gaps in protecting TCE under GI and the changes required in those laws for adequate protection of

the TCE. Finally, a case study analysis will be deciphered to realise the practical aspect of the protection and the

advantages and disadvantages of protecting TCE within GI laws.

2|CONGRUITIES IN TCE AND GI

Unfortunately, definition of TCE is still in question, and hence a theoretical understanding of TCE from the draft

definitions of WIPO and other literature will give minimal clarifications to characteristics of the same. On the other

hand, there is an established definition for GI. A critical analysis of the meaning of GI and TCE is indeed to get

conceptual clarity of these terminologies based on their characteristics of protection.

2.1 |TCE—Meaning, characteristics and subject matter

TCEs are intellectual creations created within a community, which expresses the culture of that community, and

these expressions are handed on from generation to generation within a community.

5

Considering the remarkable

work done by WIPO in the area of TCE, TK and GR will be favourable to depend upon this definition for future

analysis. The key takeaways from the definition drafted by WIPO are:

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SREENATH K. P. and ANSON C. J.