36Dwijen Rangnekar - <strong>Geographical</strong> <strong>Indications</strong>practices. This problem – particularly in terms of certainproducts – cuts across the usual North-South divide andhighlights the New/Old World divide.In response, demandeurs do not dismiss thesepossibilities, but contend that the consequences arelimited by the exceptions under Article 24(IP/C/W/308/Rev.1). Further they reason that GIs, likeany other IPRs, are predicated on the objective ofpreventing misuse, usurpation and ‘free-riding’. Thus,the question – “is it legitimate to restrict free-riding?”Interestingly, Members advocating GI-extension havenot fully engaged with the issue of potential tradedisruption. It is important to recognise that changes inthe scope of protection will have the impact ofnarrowing market access for those producers who havebeen free-riding on reputable indications. This result issimilar to that achieved in other areas of IPRs, thoughwith an important difference: producers in locationsoutside the designated geographical area can stillproduce and sell the good in question.
ICTSD-UNCTAD Project on IPRs and Sustainable Development375. CONCLUSIONThe TRIPS Council's debate on GI-extension is unlikemost other debates at the Council. To start with, unlikeany other IP-issue the demandeurs include developingcountries. This is also reflected in the newconfigurations and alliances. Thus, the dividing lineacross Members does not follow the traditional North-South dividing line. The GI-extension debate also bringsinto the spotlight the strange feature of Section 3, PartII of the TRIPS Agreement where a single definition ofsubject matter is followed by a hierarchy in the levelsof protection. Importantly, as our review notes, allparties agree that the hierarchy in protection has nolegal or rational basis. Despite this acceptance strongdifferences continue to exist on GI-extension. However,the differences are in part a reflection of the nature oftrade negotiations: what concessions are to be gainedby giving in on the issue of GI-extension. Keeping this inmind, it is important for each demandeur to review thebenefits of GI-extension.The TRIPS Council remains in a deadlock on GI-extension(Anon., 2003). Our research also shows that recentsubmissions (IP/C/W/353, IP/C/W/386) have notadvanced the debate forward 52 . Instead, we witness aperceptible hardening of positions, in particularbetween the EC, on the one hand, and the US andAustralia, on the other hand. This hardening of positionson GIs has occurred with the US and Australia raisingquestions concerning market access and EC’sagricultural policies 53 . Yet, we note that many morequestions remain unanswered by the discussions at theTRIPS Council.First, it would be useful to understand how systemsproviding protection for IGOs have worked. Existingliterature on national systems includes the WTOSecretariat paper (IP/C/W253) and papers presented atthe relevant WIPO Symposiums (WIPO, 1999, 2000).These resources contain useful information on the legaland administrative aspects of protecting IGOs. However,there is little information on the economics of GIprotection.Pertinent questions like which productcategories account for most of the protected indicationsand how this distribution across product categories haschanged over time remain unclear 54 . An economic andstatistical analysis of GI-protection should shed usefulinsights on the following:! What are the common features across productcategories that account for their successful use ofGI-protection? Equally, what can be learned frominstances and examples of failures?! Which group(s) (e.g. growers, processors,distributors, manufacturers and consumers) havebenefited from the availability of protection, andhow has this distribution across groups changedover time?! How have ‘local’ producers and communitiesbenefited from GI-protection? Closely related arequestions concerning the ‘economic value’ of aprotected indication: what share of the market(global, national, and local) is accounted for bygoods that have protected indications and whatshare of the local economy is dependent onindications being protected?! What are the costs associated with maintaining asystem for GI-protection and how has this costchanged over time? These costs should include thedirect costs related to the administrative/legalsystem and the costs (and investments) incurredby holders of protected indications as well as the‘costs’ to those producers who are considered tobe ‘free-riding’.Second, the demandeurs need to study the economicvalue of GI-extension 55 . The debate at the TRIPS Councilhas noted the potential risk of indications beingrendered generic on account of the limited protectionavailable under Article 22. While this is intuitively clear,actual evidence would help establish the point. Further,while existing research agrees that distinctive marks areeconomically valuable, a range of other factors helps torealise the economic potential of such distinctivemarks. Country-level studies would help assess the casefor/against GI-extension. Important questions to beaddressed include the following:! What kind of GI system should the countryimplement? Which are the national products thatshould be protected? What strategies should beadopted to ensure their protection in globalmarkets?! A product-level study should be conducted thatexamines some of the following: What is themarket size for the product – noting its local,national and global dimensions? What are the
Change language