1. Introduction
Geographical indications (GIs) ‘identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin’(Article 22.1, Agreement on Trade Related Aspects of Intellectual Property Rights, 15 April 1994, Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization). Some well-known GI products include Darjeeling tea, Parma ham, Champagne wine, and Café de Colombia. These are only a few examples of the many place-based products that have enjoyed great commercial success long before the formal definition of GIs by the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Very few countries had enacted legislation for protecting GIs prior to the adoption of TRIPS (WIPO. The Definition of Geographical Indications; WIPO, October 2002 (SCT/9/4), p. 4). Laws governing the use of GIs have subsequently mushroomed around the world, but in the ‘most diverse and uncoordinated manner’ [
1] (pp. 264–265), resulting in significant divergences in the modes of protection [
2,
3]. Today, there are estimated to be about 56,000 protected GIs in the world, including 55.9% in Europe, followed by Asia (32%), Latin America and the Caribbean (5.6%), Oceania (3.8%), North America (2.5%), and Africa (0.3%) [
4].
The concept of a link between a product and its place of origin stems from the French
appellation d’origine contrôlée (AOC) system [
5], which has modelled the European concept of protected denominations of origin (PDOs). The AOC system is fundamentally based on the concept of
terroir, which emphasizes the importance of both natural factors (geographical
milieu including soil, climate, etc.) and human factors (the producers’ knowhow, methods, etc.) for the definition of GI products and their link to origin. In European law, PDOs are names identifying products ‘whose qualities or characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural
and human factors’ (Article 5.1, Council Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuff). As such, AOCs and PDOs are closely associated with cultural, social, and environmental values. The EU also introduced the concept of protected geographical indications (PGIs). The definition of PGIs echoes that of GIs provided by TRIPS and allows for a more flexible link to origin that does not require the combination of natural and human factors (Article 5.2, Council Regulation (EU) No 1151/2012).
Because GIs signal origin, they have close ties with places, and their elaboration typically relies on the local resources, knowledge, skills, practices, history, and culture of a community of people within a specific geographical area [
6]. Mobilization and coordination among these various actors are necessary for the formulation and harmonization of the production norms, quality standards, and trading practices. These collective and voluntary norms aim to protect the common good, i.e., the product’s reputation and hence to build and maintain consumer trust.
Unlike other certification schemes such as fair trade and organic farming where the norms of the certification are designed in a top-down fashion and have almost the same content across the world regardless of the specificities of the local contexts, GI protection aims to provide local actors with a space to discuss their own vision of the product, including its description, quality, characteristics, and production process as well as the delimitation of the geographical area [
7]. By enabling local stakeholders to build their own rules [
8,
9,
10], each GI relies on unique product specifications which reflect a “can-do spirit” [
11] (p. 2996). The strong collective dimension of GIs has been captured by the law which usually considers GI protection as a form of collective legal monopoly right that can only be used by those stakeholders who are located inside the region and who satisfy the standards defining the product in its specifications [
12]. At the same time, the variety of legal frameworks for the protection of GIs has translated in different roles assigned to local stakeholders and state authorities in the registration process and the management of the GI producers’ organizations across countries depending on whether they have adopted a state-driven or producer-led approach to GI protection [
13].
The collective processes involved in the elaboration of the GI specifications and the governance of the GI initiatives lead us to address the critical issues of representativeness and participation in light of the legal framework. For example, local stakeholders may disagree and negotiate over which methods of production, plant varieties, agricultural practices, product name, or boundaries to codify in the GI specifications [
14], thereby revealing asymmetrical bargaining power between different actors [
15,
16]. The decision-making process may have exclusionary effects in respect of those who are unwilling or unable to comply with these specifications, especially the small-scale or traditional producers who often build the image of the GI. Such exclusionary effects reflect a trade-off between inclusiveness and economic success linked to an ‘exclusivity strategy’ [
17] (p. 21). Whereas a number of scholars have studied collective action dynamics during GI registration processes [
18], including how conflicts arise and get solved [
19], very few authors have studied the relationship between, on the one hand, the conflicts among stakeholders and, on the other hand, the governance of GIs and the extent to which it is representative and inclusive of all legitimate GI users [
11]. In particular, the controversies among stakeholders were found to depend on how the decisions were made and the extent to which the decision-making process ensured the representativeness and the inclusion of the various actors involved [
11].
The objective of this paper is to build upon this research by exploring the relationship between collective dynamics and the national legal frameworks for the protection of GIs.
More specifically, it aims to understand the impact of national laws on the representation, inclusion, and participation of local actors in the GI producers’ groups and in the elaboration process of the product specifications. To provide valuable insights on the causal relationships between the law and collective dynamics, this paper involves a comparative case study strategy to contrast and analyze the state-driven and producer-led approaches to GI protection. How do these two systems shape the concept of representativeness during the process of establishing the GI collectives and drawing up the GI specifications?
Using a qualitative methodology, this paper is based on a comparative analysis of six case studies in France and Vietnam. The choice to investigate GI initiatives in these two countries was made considering the contrasting roles assigned by law to local stakeholders and state authorities in the registration process and the management of the GI producers’ organizations in both countries. While, pursuant to the law in each of these countries, French producers have a pivotal role in initiating the GI protection process, elaborating the GI specification, and managing the GI producers’ organizations, albeit with the support of state authorities, in Vietnam, these processes are primarily led by the State. As such, France and Vietnam are representative of the producer-led and state-driven approaches to GI protection, which enables to explore whether and how these two systems lead to different understandings of the concept of representativeness and impact differently on collective dynamics.
The case studies were selected randomly to cover a variety of products including agricultural products that have undergone little or no processing, foodstuffs resulting from the processing of unprocessed products, and handicrafts, as follows:
- -
Vietnam: Star anise from Lạng Son (GI since 2007); Conical hat from Huế (GI since 2010); Fried calamari from Hạ Long (GI since 2013);
- -
France: Green lentils from Berry (PGI since 1998); Pélardon cheese (AOC in 2000; PDO since 2001); Bouchot mussels from Mont-St-Michel Bay (AOC in 2006; PDO since 2011).
Primary data were collected through semi-structured interviews that were conducted in France and Vietnam in 2014 and by telephone and email communications in 2017-2020. The interviews aimed primarily to generate explanations about how GI producers’ groups were established and how consensus was reached during the establishment phase, including the main issues of contention during the negotiations of the GI technical rules—or else, the extent to which the decision-making process was participatory. Interviewees included (1) public authorities; (2) farmers, producers, and processors; (3) distributors and traders; and (4) leaders of producers’ associations and cooperatives. Overall, we conducted between 6 and 10 interviews for each GI product for a total of 42 interviews. Secondary data were generated through desk study of legal texts, product specifications, registration regulations, statutes of the GI collective organizations, and evaluation reports. Each case was analyzed individually before comparing them with and among each other to highlight commonalities and differences. As part of this process, interview transcripts and document-generated data were coded manually. Secondary data were also generated for cases such as Camembert de Normandie and fish sauce from Phu Quoc.
Section 2 analyzes how the concept of representativeness is addressed in the legal frameworks for protecting GIs in France and Vietnam.
Section 3 presents different case studies to explore how the different understandings of the concept of representativeness in each national legal framework impact on the constitution and representation of the producers’ groups and affect the elaboration process of the product specifications.
Section 4 discusses some of the issues arising out of the forms and processes of collective action in each country as influenced by the legal environment and which challenge the concept of representativeness.
2. Representativeness in French and Vietnamese GI Law
The GI applicant is crucial in determining the objectives associated with the GI protection and the content of the product specifications. However, the TRIPS Agreement does not specify who can submit an application for GI protection, nor do other international agreements such as the Lisbon agreement and its Geneva Act for the international protection of appellations of origin and geographical indications. The nature of the applicant thus varies across countries. Two approaches are commonly used: Applications may be prepared and submitted by a group of producers only like in France and other European countries, or they may be submitted by a public authority. This is the case in Vietnam, where it is mandatory by law and in other countries who have only recently adopted GI provisions to comply with TRIPS [
20] such as India [
21], Indonesia [
22], and other ASEAN countries [
23]. Unlike in France where protection of GIs has matured for over a century out of a long process that was initiated by local producers, the legal framework for GIs in Vietnam is fairly recent and was led by state authorities. The state-driven, top-down approach of Vietnam to protecting GIs sharply contrasts with the bottom-up system of GI protection in France, which has important consequences on the way in which the concept of representativeness is understood and applied.
2.1. Bottom-Up and Producer-Driven Approach in Europe/France
In Europe, where only those stakeholders who are complying with the specifications have the right to use the PDO/PGI and the official PDO or PGI logos (Regulation 1151/2012, Article 12.1.), the specifications are a strategic tool that may have exclusionary effects deriving from the definition of the geographical area or the conditions of production [
24]. Therefore, the collective action of local operators is fundamental to initiate the application process for GI protection. According to Article 49.1 of Regulation 1151/2012, PDO/PGI applications ‘may only be submitted by groups who work with the products’, with groups being defined as ‘any association, irrespective of its legal form, mainly composed of producers or processors working with the same product’ (Regulation 1151/2012, Article 3(2)). No criterion of representativeness or inclusiveness is included in this definition, yet only groups with a ‘legitimate interest’ are eligible to apply for approval of an amendment to the product specification (Regulation 1151/2012, Article 53.1).
In French law, an Order adopted in 2006 (Ordonnance 12006-1547 du 7 décembre 2006 relatif à la valorisation des produits agricole, forestiers ou alimentaires et des produits de la mer (Order of 7 December 2006 for the promotion of agricultural, forestry, food and seafood products) (8 décembre 2006) JO 18607) stipulates that all operators involved in the production, processing, elaboration, and packaging of the product (Rural Code, Article L.642-3) must group together within one single entity with legal personality (Rural Code, Article L.642-17). Such an entity, to which all operators must necessarily adhere to be given the right to use the GI (Rural Code, Articles L.642-3 and L.642-21), must be recognized by the French national institution for the recognition of PDOs/PGIs (Institut National de l’Origine et de la Qualité, INAO) as an Organization for the Defense and Management of the PDO/PGI (Organisme de Défense et de Gestion, ODG) (Rural Code, Article L.642-17) on the basis of (i) its representativeness and (ii) the balanced representation of the different professional groups involved (Rural Code, Article L.642-18). These two requirements, which are not mentioned in European law, aim to ensure the democratic functioning and inclusivity of the producers’ organizations (INAO. Guide du demandeur pour la reconnaissance en qualité d’organisme de défense et de gestion; INAO, Janvier 2016; p. 10). To assess the representativeness of the ODGs, information shall be provided on the number of operators who are already members of the candidate body and the volumes they produce as compared with the total production volume (Ibid.). For example, it was found that the Organization for “Limoges porcelain”, which represents 75% of operators and 90% of turnover in this sector, is representative of all the stakeholders involved with this product (Court of Appeal of Paris 25 Sept. 2018). Besides, to ensure the democratic functioning of the ODG, all members shall have the right to participate in its general assemblies, taking into account that quorum rules for decision-making should guarantee their proportional representation (INAO (n15), p. 11). Finally, all the different professional groups involved, including producers, processors, and packagers, should be equally represented in all decision-making bodies, including the board of directors and the general assembly (Ibid., p. 12).
The ODGs are generally responsible for managing the GI. They should, among others, elaborate the product specifications and contribute to their implementation; participate in the elaboration of the control plan in collaboration with the certification body; participate in the implementation of internal controls; identify and update the list of local operators and ensure the periodic transmission of this information to both INAO and the certification body; participate in activities related to the defense and management of the appellation, the product, and the terroir as well as in the promotion of the product and in the statistical knowledge of the sector; implement the relevant decisions of INAO’s national committee; and provide INAO with any information collected in connection with their missions, upon request (Statutes of the ODGs ‘Lentilles vertes du Berry’, ‘Moules de Bouchot de la Baie du Mont-Saint-Michel’ and ‘Pélardon’, Article 2). Applications for GI protection, including the product specifications, must be submitted by the ODGs (Rural Code, Article L.641-6), thereby giving local operators grouped within an association a key role in the initiation of the application process. As a normative document that codifies the product quality and cultural and agro-environmental practices, the product specifications are generally regarded as the masterpiece of representative collective action as it must be agreed upon collectively by producers and other relevant stakeholders [
25], which highlights their pivotal role in the definition of the products. Despite their mandatory content, the product specifications allow for some flexibility and can vary greatly in terms of details and standards across PDO/PGI products. Local stakeholders taking part in the elaboration process are ultimately the ones deciding which criteria and rules of production to include—or deliberately ignore. Even if there is mediation from the State, as does INAO in France, producers are the ones who ultimately make the decisions.
2.2. Top-Down and State-Driven Approach in Vietnam
By contrast to the bottom-up and producer-driven process in France, the identification of the product candidates for GI protection in Vietnam and their ensuing registration and management are primarily the responsibility of the state, which thereby establishes itself as representative of the local stakeholders.
In Vietnam, the owner of all GIs is the State (IP Law, Article 121.4) and the right to register GIs with the National Office of Intellectual Property (NOIP) belongs to the State who can allow organizations/individuals involved in the production of the product, their representative collective organizations, or the administrative authorities of the locality to which the product pertains, to exercise this right (IP Law, Article 88). In practice, no GI has been registered by producers or collective organizations to date, the only exception being for the Nuoc Mam (fish sauce) from Phu Quoc (probably because Nuoc Mam Phu Quoc was developed through a cooperation project with France and the EU). Public authorities generally recruit a technical expert to proceed with the registration of the GI under their supervision. As part of the application process, the technical expert should provide the name or sign to be protected as a GI (Vietnamese law protects only the name or sign that constitutes the GI itself, i.e., not the combination of the name or sign with the type of product), a map of the geographical area corresponding to the GI (IP Law, Article 106.1), and a detailed document describing the peculiar characteristics of the product (IP Law, Article 106.2). Unlike in France and other EU Member States where official PDO/PGI labels are the same for all protected products, there is no one official state logo for all GIs as yet in Vietnam. In practice, the technical expert in charge of the GI registration usually oversees the design of the logo for that particular GI product, with each GI having a specific logo (IP Law, Article 106-1(a)).
Unlike in France, there is no obligation under Vietnamese law for local stakeholders to organize themselves within one single association, hence membership in the producers’ association is not a legal requirement. However, depending on each GI, it can be chosen to establish a producers’ association. If so decided, the technical expert in charge of the GI registration is usually responsible for the establishment of an association of producers, processors, and/or traders as well as training of farmers/producers in production technics; the organization of the supply chain; and awareness and communication activities. It is typically not until the implementation phase of the projects that local stakeholders become involved in the initiatives.
Consequently, unlike in France where the creation of the GI initiatives is largely based on the collective, voluntary, and participatory action of local stakeholders, in Vietnam, collective action dynamics do not usually precede the creation of associations but rather are instigated by an external expert under the supervision of state authorities. The creation process of producers’ associations is thus largely technocratic following a top-down, state-driven approach to protecting GIs. Unlike in French law, Vietnamese law is silent on the quorum and voting rules within the producers’ associations. Depending on each GI, membership can be made a mandatory condition for being granted the right to use the GI.
While the missions of the French ODGs are centered around the defense of the appellations, in Vietnam, the GI producers’ associations are clearly market-oriented. According to the NOIP, they should, among others, coordinate the purchase and distribution of the products of the members of the association; organize promotion and marketing activities; manage, monitor, guide, and control the cultivation, processing, and marketing processes (internal control); and manage the use of the logos and packaging (NOIP. Guide à la construction du projet “Gestion et Développement des IGs”; NOIP, 2009; pp. 15–16).
The ownership of all GIs provides the State with the right to manage GIs (IP Law, Article 121.4), which includes the right to authorize the use of GIs (IP Law, Article 123.2(a)). The right to manage can also be transferred to a representative organization of all collectives and individuals conferred with the right to use the GI (IP Law, Article 121.4). The right to use the GI can be granted to organizations or individuals located in the relevant area and involved in the production and marketing of the GI product (IP Law, Article 121.4). Local stakeholders must apply individually to the management organization to obtain the right to use the GI. It is the only right that can be granted to local stakeholders who are not associated with the registration procedure nor the management system.
5. Conclusions
This paper is based on the analysis of two legal frameworks and a variety of empirical case studies. It has evidenced considerable differences between the French producer-led and Vietnamese state-driven approaches to protecting GIs, which are useful to understand how the concept of representativeness is understood and organized in each context. Representativeness varies depending on the respective roles of the state and local stakeholders in the registration process, the management of the initiatives by the collective organizations of producers, and the use of GIs in each country. On the one hand, in Vietnam, there is a lack of collective action among producers, which is evidence of their lack of representativeness by the state authorities. On the other hand, in France, the objective of representativeness may lead to too many conflicts among producers, resulting in delays in the elaboration of the GI specifications. Are there in-between solutions to promote the producers’ representation and participation? What is the most suitable role of the State in the elaboration and management of GIs?
Even in producers-led systems, our cases studies and other research show that the issues of representativeness and participation are complex and may be problematic, not only when GI initiatives are established but also in the long run, especially when changes are observed in the value chain, the tastes and choices of consumers, innovation of practices, climate impacts, etc. In this respect, the case of Camembert de Normandie asks an important question: Should one trust the State in defining a common interest? In this initiative, the proposed new specification was negotiated under the auspices of INAO, the French public authority in charge of GIs, who invited a wide range of stakeholders of the value chain to participate in the process. These included even those producers who were not members of the GI producers’ association as they did not comply with the specification requiring the use of raw milk but who still represented important volumes of production of a similar (albeit industrial) product sold under a similar name. However, although supported by the State, the proposed amendment was rejected by those producers who had elaborated the initial specification. Does this mean that the State’s intervention was not considered legitimate? Is the role of INAO as a mediator enough or should the result of the stakeholders’ consultation be enforced especially considering that the stakeholders had not contested at any time that the consultations led by the State were fair and representative? In sharp contrast, in Vietnam, such circumstances would not arise simply because the holding of consultations with representatives of all the stakeholders of the value chain is very rare, and in all cases, the State’s proposal would always prevail. The unique situation of Nuoc Mam (fish sauce) from Phu Quoc, which is the only Vietnamese GI that has been registered by the producers’ association to date, is the result of a strong cooperation with the European Union and France.
An in-between solution might be that the State organizes a consultation of a wide range of stakeholders, first with a very inclusive approach of the value chain stakeholders, and second with those outside the value chain such as local authority representatives, traders, and possibly also consumers. The representativeness of such consultation would justify that its outcome be applied as a mandatory rule. Another recommendation would be to consider the evolving and dynamic nature of the stakeholders’ representativity as is the nature of the GI specification. In this solution, the representativity should be re-examined throughout the long life of the GI, at the request of any stakeholder of the value chain, including those who are not (yet) included in the GI system. However, this solution entails that the State is able to check and ascertain the stakeholders’ representativity both at the time of examining the GI application and at the time of organizing future consultations. We believe that this should be an essential role of the State as the justice of the peace.