10.2.1 What Are GIs?

Like trademarks, GIs are signs that convey information about products to consumers and can function as valuable brands. Article 22.1 of the TRIPS AgreementFootnote ³ describes them as ‘indications which 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’ (emphasis added). Prominent examples include Champagne, Bordeaux and Prosecco for wine, Café de Colombia for coffee, Darjeeling for tea, Roquefort for cheese and Parma for ham. GI protection is therefore concerned with preventing unauthorised uses of such signs, which may either cause harm to their communicative functions – for example, by misleading consumers about provenance – or misappropriate their brand image. Notably, these regimes protect signs but do not protect the underlying production methods. Thus ‘GIs are about what things can be called. They are about labelling, packaging and marketing. Nothing in GI rules prevents any producer anywhere from using the techniques specified as being associated with the GI name. But they may not use the name to communicate the production techniques they have used’.Footnote ⁴ While Champagne is a protected term in many jurisdictions, the méthode champenoise has been widely adopted by sparkling wine producers around the world.

Despite this shared commitment to the protection of signs, four features set GIs apart from trademarks.Footnote ⁵ First, as per the TRIPS definition in Art 22.1, GIs indicate geographical origin (a place) as opposed to trade origin (commercial source) for a product. Second, all producers from within the region of origin who follow the established production methods are invested in their use. This gives rise to co-ordination issues around product definition and a collective interest in any ensuing reputation.Footnote ⁶ Third, in order to qualify as a GI, producers must demonstrate – in a causally verifiable manner – that the product in question owes its qualities or reputation to the region of origin. In this regard, wine is the archetypal subject matter with terroir providing the causal explanation for the distinctive quality or typicity (typicité) of wine.Footnote ⁷ However, as we will see immediately below, crafts and textiles cannot be linked to a place in the same way that grapes anchor wines to geologically and climatically defined regions. Fourth, there needs to be a consensus around the underlying product that is referenced by the sign. If a GI is promising something about a product to consumers, we need to be clear about the content of this promise. Sui generis protection systems for GIs usually require an application to be made to a public registrar.Footnote ⁸ At the core of this application is the product specification, also referred to as the qualification document or cahier des charges. A crucial part of legally defining a GI is therefore a detailed product description, emphasising its distinctive qualities that set it apart from similar products – what makes this particular handwoven fabric different from others?Footnote ⁹ These differentiating features which characterise the product should then be causally linked back to the region of origin in verifiable ways:

This link between product and place distinguishes GIs as a form of intellectual property. Formal examination by a public registrar serves to certify this nexus.

One further clarification is helpful at this stage. In the case of a traditional textile, when can its quality, reputation or characteristic features be ‘essentially attributable’ to its geographical origin? For such products, a combination of natural and human factors usually influences the end result. Natural factors include the sourcing of raw materials from within the defined region. Examples include the conical hats from Hué in Vietnam, prepared from a local variety of leaves,Footnote ¹¹ or the fleece of the mountainous goat breed Capra Hiracus for making Kashmiri Pashmina shawls from India.Footnote ¹² Pashmina is a down fibre or under coat derived from this native breed, which lives at high Himalayan altitudes with severe winter temperatures. The resulting fabric is renowned for its fineness and warmth. Human factors refer to the practical skills and inter-generational, collectively transmitted know-how crucial to the manufacture of such textiles.Footnote ¹³ Delphine Marie-Viven describes the skill involved in the production of Kancheepuram silk saris, woven in the famous temple town of Kanchipuram in Southern India:

However, in many cases it may only be human factors that link a product to a specific region, with raw materials being drawn from a wider catchment area. Even in such situations, producers’ skills will have evolved through interactions with local environmental features or localised socio-economic circumstances. While artisans can migrate with their skills, the knowhow associated with such famous regional products has usually been shaped by its geographical context (e.g., climatic conditions favouring light, porous fabrics, or textile designs bearing motifs that have local religious or cultural significance).Footnote ¹⁵ Where these natural and/or human factors are responsible for the product’s characteristic features and associated reputation over time, this aligns with the definitional requirements of Art 22.1 TRIPS.Footnote ¹⁶

Finally, the applicant group is required to submit inspection or verification criteria (which specific manufacturing processes, or product features, will be tested for compliance with the product specification) and additionally identify who will be responsible for ensuring compliance (frequently an unrelated third party with the necessary certification expertise).Footnote ¹⁷ Consequently, while the source indication function and brand dimensions of GIs overlap with trademarks, the collective interest in protection, geographical embeddedness and certification of the causal link set them apart.

10.2.2 GIs Protection for Traditional Textiles

GI protection seeks to preserve the ability of a sign to communicate the distinctive geographical origin and associated quality of a product. While the initial regimes originated in the context of guaranteeing the regional provenance of wines in France,Footnote ¹⁸ over time the subject matter categories have expanded. Today, GIs are registered around the world for wines, spirits, foodstuffs, agricultural produce and crafts.Footnote ¹⁹ Within the broad category of craft GIs one finds several examples of textiles as well as leather and jewellery products, which are of relevance for the fashion sector.Footnote ²⁰ The Organisation for an International Geographical Indications Network (oriGIn), a non-profit non-governmental organisation (NGO) advocating for better GI protection, maintains a searchable international compilation of GIs. This includes 381 textile-related protected GIs – including for brocades, silks, woollens, saris, cashmere, tweeds, embroidery work, block printed materials, tie-dyed fabrics, kimonos and shawls – from a range of countries.Footnote ²¹ The Lisbon Express database managed by WIPO contains 37 international registrations for textile products registered under the Lisbon System,Footnote ²² almost exclusively from the Czech Republic, France and Iran.Footnote ²³ National GI registers in countries such as India and Thailand contain sizeable numbers of registrations for crafts, including textiles.Footnote ²⁴ An in-depth study of Indian handloom GIs identifies 74 registrations as of 2021, since they are an important part of the informal economy, which nevertheless generates significant employment.Footnote ²⁵ Several examples of traditional textiles are found across Latin America, including Colombia (Wayuu), Guatemala (Maya), Bolivia (Textileros de Cochabamba), El Salvador (San Sebastián) and Panama (Kuna).Footnote ²⁶ In a significant development, the European Union has recently introduced a registration system for non-agricultural products, including extracted products such as marble, crafts and textiles, including lace and embroidered products.Footnote ²⁷

Once registered, GIs are protected against statutorily defined unauthorised uses. The widely shared intuition that counterfeits or fakes are undesirable can be further unpacked via the information efficiency hypothesis, which relates to the degree of information reflected in the prices of products in efficient markets.Footnote ²⁸ Within mainstream neoclassical economics, consumers are characterised as utility maximising agents attempting to make optimal choices.Footnote ²⁹ Rational decision-making is premised on the availability of sufficient information in the marketplace. However, GI products can be characterised as either experience goods or credence goods, whose quality cannot be easily verified by consumers prior to purchase (‘How can I tell if this is a genuine Bordeaux wine?’). In these situations, sellers possess more information about the products than buyers, whereupon information asymmetry arises.Footnote ³⁰ This informational imbalance could lead to familiar forms of market failure such as adverse selection and the ensuing ‘market for lemons’, driving quality downwards.Footnote ³¹ Reputation signals and the conveying of reliable information relating to product attributes are two methods of restoring informational efficiency. Public authorities intervene by establishing a legal regime that grants exclusive rights, thereby regulating who can legitimately use a sign for traditional regional products. As a result, protected signs can be trusted. This not only reduces consumer search costs but also prevents undesirable free riding. Additionally, for GIs, credible information is provided – via the examination preceding registration – about provenance, quality attributes and modes of production. Two products bearing the same protected GI should share the same origin-specific qualities. In other words, registration empowers consumers by converting credence or experience attributes into quasi-search ones.

The informational efficiency account justifies one important tier of GI protection rules. Signs or logos for traditional textiles are protected against unauthorised misleading uses relating to origin or quality. Article 22.2 of TRIPS requires members to ‘provide the legal means for interested parties to prevent … the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good’. Article 40(1)(c) of the recent EU Crafts and Industrial Products [CIP] Regulation (EU) 2023/2411 prohibits any ‘false or misleading indication as to the provenance, origin, nature or essential qualities of the product … [used in packaging or advertising] liable to convey a false impression as to its origin’. Article 40(1)(d) of the CIP Regulation broadly prohibits ‘any other practice liable to mislead the consumer as to the true origin of the product’.

Increasingly, sui generis regimes also prevent unauthorised uses that free ride on a product’s reputation, or else harm the brand image of regional products, via dilution or tarnishing associations, even where no consumers are misled.Footnote ³² For instance, Article 40(1)(a) of the CIP Regulation prevents the use of a protected craft or textile GI against ‘any direct or indirect commercial use of the [GI] in respect of products not covered by the registration … where the use of the name exploits, weakens, dilutes, or is detrimental to, the reputation of the protected geographical indication’. Article 40(1)(b) prevents any ‘misuse, imitation or evocation of the [protected name], even if the true origin … is indicated or if the protected geographical indication is translated or accompanied by an expression such as “style”, “type”, “method”, “as produced in”, “imitation” [etc]’. This second, far more generous tier of protection exists to protect the reputation that arises from the collective, inter-generational investment in the underlying product.Footnote ³³ GIs therefore appeal as a form of brand-based protection for traditional crafts and textiles, since it has previously proved challenging to accommodate such products within the ‘content protection’ fields of IP such as copyright and design law.Footnote ³⁴

Premised on these normative foundations, legal protection creates the conditions for legitimate GI producers to obtain a price premium, by ensuring exclusive use of the sign for the purposes of differentiating their products. An EU study calculated the average value premium – the price difference between EU GI products and comparable standard products – as 2.07 in 2017.Footnote ³⁵ The premium across different categories of products is further differentiated, with wines at 2.85, spirits at 2.52 and agricultural products and foodstuffs at 1.5. There is an expectation that consumers’ willingness to pay a price premium also exists for crafts and textiles GIs as well, once consumers become aware of the certification guarantees performed by GIs.Footnote ³⁶ These products often rely on artisanal modes of production, while researchers have noticed a ‘handmade effect’ which positively shapes consumer purchase preferences. Handcrafted products appear more attractive to consumers, since they perceive them as embodying the artisan’s love for their craft in a way that machine-made products cannot replicate.Footnote ³⁷ In addition, there is also a perceived prestige value associated with handmade fashion products such as clothing, handbags and shoes. One study identifies (verifiable) craft authenticity, the purchaser’s knowledge about the craft and social identity as the key determinants that influence purchases by Indian consumers.Footnote ³⁸ Another study from India concludes from survey evidence that GI labels that convey reliable quality information about traditional handlooms do increase trust and positively influence consumer purchase intentions.Footnote ³⁹ A review of the EU context suggests that where artisanal crafts or textiles have shorter and less complex value chains, ‘it is more likely that the price premium stays with producers’.Footnote ⁴⁰

However, the same study also notes that there is comparatively less research on willingness to pay a premium for non-agricultural GIs, while distribution effects may vary: ‘The question is whether the premium will cover the costs [since GIs are usually more expensive to produce] and who will benefit.’Footnote ⁴¹ It should be noted that the beneficiaries of this price premium will vary in accordance with the power dynamics specific to each supply chain. For some agricultural GIs, the price premium is captured by local farmers, whereas in others it is captured by traders and distributors.Footnote ⁴² These concerns carry over to craft and textile GIs; for example, a price premium has not resulted in equitable wages for the weavers of the reputed Indian Banaras sari.Footnote ⁴³

While questions therefore remain about who benefits from legal protection, in its absence the harm to traditional craft and textile producers is abundantly clear. Lookalike products enter the market at lower price points, while misleadingly using the GI designation and frustrating consumer expectations:

The lower price is often attributed to factors such as less costly labour outside the original region of production, cheaper raw materials or the adoption of industrial-scale, mechanised production processes. To take one example, the city of Varanasi in the state of Uttar Pradesh in India is a historic weaving centre famed for its Banaras saris. The favourable reputation is due to the finely textured silk and intricate weaving techniques, often involving brocade work with zari or metallic thread and displaying complex design motifs or bootis.Footnote ⁴⁵ In the recent past, concerns have included a flood of far more economical, lower quality imitations from China as well as the other states in India (such as Gujarat); the imitations being made by power looms as opposed to more labour-intensive traditional techniques, the use of synthetic materials or other cheaper varieties of silks in these imitations and the poaching of the best weavers by other sari manufacturing regions.Footnote ⁴⁶ The threat is not just external. Some technological advances prove irresistible to established producers within the region of origin, such as the adoption of powerlooms.Footnote ⁴⁷ Based on extensive fieldwork in the Varanasi area, Amit Basole has described this new development as ‘home-based and small workshop-based weaving, often (but not necessarily) carried out with second-hand looms obtained from textile mills’.Footnote ⁴⁸ Whilst recognising the political economy dimensions of who does and does not adopt the more capital-intensive powerlooms, Basole questions whether the introduction of the powerloom should be viewed as a threat at all:

We return to the issue of (im)permissible adaptations in Section 10.3.2 of this chapter. Nonetheless, there is a broad consensus that effective intellectual property protection is required to combat fakes or counterfeits.Footnote ⁵⁰ Legal protection, alongside a basket of other support policies, is seen as a crucial bulwark to prevent the eventual dying out of traditional crafts, where producers can no longer make a sustainable living. An EU study in 2020 reveals that from a sample of 834 potential craft and textile GIs identified in 2013, ‘many of the products, as of 2019, were simply not produced anymore. Other products had lost their geographical roots, for example by being used as trade mark by multinational companies without maintaining any actual presence in the region of origin’.Footnote ⁵¹

10.2.3 Fashion and Sustainability: An Opportunity for Traditional Textiles

The preceding analysis has set out the case for why GI protection has advantages for geographically embedded traditional textiles. However, what do GIs offer the fashion industry, in terms of the provenance guarantee that they represent? Put differently, what are the synergies between GI protection for local, traditional textiles and the priorities of the increasingly globalised fashion industry? One compelling response is the claim that traditional textiles have better sustainability credentials. It is now widely acknowledged that mainstream models of fashion production and retail are both ecologically and socio-economically unsustainable, although the concept of sustainability is understood in different ways across the sector.Footnote ⁵²

This chapter adopts the Brundtland Report’s widely accepted, broad definition of sustainability as meeting ‘the needs of the present without compromising the ability of future generations to meet their own needs’.Footnote ⁵³ In the context of fashion, as opposed to focusing on any given item of clothing being sustainable, the approach should be process-oriented: ‘Sustainable describes the processes and behaviours involved in producing that [fashion] product.’Footnote ⁵⁴ While the focus of this chapter is on environmental considerations, the full range of sustainability concerns spans inequitable labour practices, the health and safety of workers, gender inequality as well as the wasteful production and consumption of fashion goods. A United Nations Environment Programme (UNEP) report highlights the ecological sustainability concerns:

This implicates the entire fashion value chain. On the production side, wet processing (the bleaching/dyeing/finishing stage of textile production) and synthetic fibre production stand out, while the effluents and energy usage from laundering as well as discarding items after only a few wears are prominent consumption-based aspects.Footnote ⁵⁶

The fast fashion industry is of particular concern, as a significant global polluter. Emerging in the 1990s, this new model emphasised the shortening of lead times for both production as well as distribution, offering new products to the market as fast as possible.Footnote ⁵⁷ While fashion has historically been premised on trends and cycles, it is the pace of change that makes this far more frenetic iteration remarkable. It was initially feted as a retail strategy for democratising couture and bringing trendy, affordable items to the masses. Brands today associated with this trend include Zara, Forever 21, H&M, TopShop, Shein and Primark. Although this development can in turn be situated within a broader historical trend of increasingly industrialised, mass-produced and standardised garment manufacture,Footnote ⁵⁸ there is nevertheless a distinctive set of concerns associated with fast fashion. The pressure to sell newer lines at lower prices has undermined working conditions and wages, while the environmental costs of this model are increasingly apparent.Footnote ⁵⁹ One prominent policy response to the latter is the recent EU Strategy for Sustainable and Circular Textiles:

The EU strategy seeks to address this set of challenges through measures such as clamping down on greenwashing, taking steps to reduce the export of textile waste and setting mandatory minimums for the inclusion of recycled fibres in textiles, making them longer lasting, as well as easier to repair and recycle.Footnote ⁶¹

This policy shift towards encouraging more sustainably produced, longer-lasting garments creates an opportunity for traditional textiles, which have conventionally relied on natural fibres and dyes as opposed to synthetic ones, to be valued for artisanal modes of production connected to local communities and are bought to be kept, not discarded.Footnote ⁶² In other words, the titular ‘threads that last’. Environmental sustainability has been expressly linked to traditional textile GIs in the draft proposal for the new EU non-agricultural GIs protection regime, which ‘also shares specific objectives with the Commission’s forthcoming EU strategy on sustainable textiles, which aims to create a better business and regulatory environment for sustainable and circular textiles within the Union’.Footnote ⁶³ This potential can be illustrated by Dabu (variously spelled Dhabu or Daboo), from Western India. Dabu means ‘to press’ and is a form of block printed textile production relying on mud-resistant printing techniques.Footnote ⁶⁴ While natural dyes are used for colouring, local mud is used to make a dye-resistant paste, which is then painstakingly stamped, using carved wooden or metal blocks bearing attractive motifs, onto the fabric. Since the mud prevents the natural dyes from attaching to the fabric, artisans create patterns and designs by intentionally preventing dye penetration in selected areas. The process is labour intensive, involving various stages of washing, stamping and dyeing. Producers rely on natural materials such as clay or mud, lime gum, wheat husk, florals and fruits. It should however be noted that traditional textile production methods evolve in ways that sometimes cut against sustainability objectives. For example, natural dyes require chemical supplements to bind more effectively with fabrics and retain colour over time, with the residual binding chemicals washed away after the final rinsing.Footnote ⁶⁵ In Section 10.3, we therefore examine whether specific binding and meaningful commitments to sustainability could be facilitated by GI legislation.

The second reason why GIs seem promising is they ostensibly fit well with contemporary policy approaches to sustainable development. Since these products are, by definition, locally embedded to varying degrees, they have the potential to act as a platform for territorial development strategies.Footnote ⁶⁶ As opposed to a top-down national (or in the EU’s case, region-wide) approach to sustainable development, territorial strategies focus on leveraging the unique characteristics, strengths and opportunities present within a particular region. This approach recognises bespoke policy interventions tailored to specific local needs. Key principles include prioritising local context, that is, natural resources (and their constraints), cultural heritage, economic arrangements and social dynamics and inclusive or participatory governance whereby local stakeholders are involved in decision-making. This emphasis on place or local geography complements a growing consumer awareness of where and how garments are made. The COVID-19 ‘pandemic contributed to [drawing] attention to nearness and quality, enhanced cultural connections with the territory, and, to a certain extent, triggered a centripetal as opposed to a centrifugal movement, which is at the heart of the concept of localism’.Footnote ⁶⁷

The territorial approach to development, which values local context, has been informed by social science research that ranges widely beyond the formal legal act of GIs registration. A recent review of the lessons learned from agricultural, wines and spirits GIs concludes that legal recognition is ‘not a magical tool and that the local conditions which can influence their establishment and management are crucial to the efficiency and local sustainability of the GI’.Footnote ⁶⁸ The review goes on to identify the following operational conditions:Footnote ⁶⁹

1. i. respecting, as a matter of operational practice, the casual link between quality and origin that is clearly defined in the product specification (both in order to satisfy the conditions for granting a legal (IP) right and to ensure meaningful product differentiation in markets);

2. ii. creating the conditions for successful collective action, described as ‘the ensemble of individual and collective choices and initiatives made by producers as a group for a common objective’Footnote ⁷⁰ and ensuing territorial governance strategies, on an ongoing basis;

3. iii. effective marketing, which incorporates the GI term and accompanying official logos;Footnote ⁷¹ and

4. iv. an efficient legal framework and the role of the public sector, as it pertains to effective protection of GIs against misuse.

With sustainability in mind, the product specification remains an important legal site, since it defines acceptable production techniques, influences value chain efficiency and delimits the production region.Footnote ⁷² However, one needs to step back and review the full ‘biography’ of the GI product – its existence both prior to and past the initial product specification, as influenced by the decisions of supply chain actors amidst changing circumstances – when evaluating the potential for sustainability.

10.3.1 Making Binding Sustainability Commitments?

In recent years, EU policymakers have actively engaged with ways to reinforce sustainability commitments via the legal framework regulating GIs. However, the difference in emphasis between the environmental and economic dimensions of sustainability has gone largely unnoticed. The following analysis foregrounds how both dimensions are prominent in the agricultural products context (used broadly here, to include wines and spirits), while the focus seems to be mainly on economic sustainability for crafts and textiles. This difference matters and Section 10.3.2 explores the potential tension between commercial pressures and more environmentally friendly production techniques.

To begin with, this policy interest in sustainability hinges on the centrality of the link, shared by all GIs, between distinctive products and specified regions.

This link or territorial association is elaborated in the product specification, where the product – including its distinctive characteristics – is described along with the (often traditional) methods of production that give the product those characteristics. Specifications also delimit the production region, identify permitted raw materials and their sourcing while sometimes additionally prescribing modes of packaging.Footnote ⁷⁴

Turning first to environmental sustainability, surveys of producer groups in the agricultural context reveal that the following measures have been found, to varying degrees, in product specifications:

Whereas mandatory environmental standards must be complied with, certain producer groups have taken the initiative to adopt stricter standards that are more environmentally friendly, such as a commitment to using animal manure instead of chemical fertilisers, mechanically controlling weeds or using certain insect species to combat pests.Footnote ⁷⁶ A recent proposal to consolidate the three distinct EU GI regimes for agricultural products, wines and spirits recognises sustainability in the ‘three pillars’ sense: ‘GI agricultural/food products incorporate some sustainability characteristics in one or more of the three dimensions of the term: environmental, stemming from GI products intrinsic link to a specific area with its specific natural factors and resulting from production methods adapted to that area; [social …] and economic: as the value added in a GI product is secured for the local producers and cannot be delocalised.’Footnote ⁷⁷

Environmental sustainability is an increasingly visible priority because agricultural GI law is situated within the EU food quality policy framework. Given the environmental impacts of food production, distribution and consumption, this policy framework is being reshaped by the European Green Deal, aiming to make Europe the first climate-neutral continent and its subsidiary Farm to Fork strategy, seeking to establish a fair, healthy and environmentally friendly food system.Footnote ⁷⁸

The case for economic sustainability is premised upon GI status resulting in higher margins for producers, via the price premium that consumers are willing to pay for distinctive products.Footnote ⁷⁹ This ensures the survival of production-related local know-how, thereby preserving viable employment in the region and possibly even growing employment where demand increases, as a result of enhanced visibility and access to new markets. The formation of a GI producer group allows for better co-ordination and the ability to collectively confront external pressures (such as contractual negotiations with large retailers or other intermediaries). GI status can also be a bargaining chip when negotiating more flexible solutions, when it comes to regulatory compliance for a certain product sector (e.g., demonstrating that products made with unpasteurised milk are nevertheless suitable for consumption, or where smoking or salting a product can effectively preserve it). Finally, there are the positive spillovers: potential benefits for local food processing industries that use local GI ingredients – the hotels, restaurants and catering sectors and tourism more generally.Footnote ⁸⁰

The final text of this Consolidating Regulation 2024/1143 explicitly references all three dimensions of sustainability in its opening recitals.Footnote ⁸¹ One of the stated purposes of instituting an EU-wide system of GI protection is to ensure ‘that producers acting collectively have the necessary powers and responsibilities to manage the [GI] concerned, including to respond to societal demands … for products resulting from sustainable production in its three dimensions of economic, environmental and social value’ and – by preventing unfair competition or misuse – ‘ensure a fair return for producers and a capacity to invest in the quality, reputation and sustainability of their products’.Footnote ⁸² The commitment to sustainability takes the form of an optional sustainability undertaking in the final text. Producer groups ‘may agree on sustainable practices to be adhered to in the production … [or other requirements associated with the product] in the product specification …. Such practices shall aim to apply sustainability standards higher than those laid down by Union or national law in terms of social, environmental or economic sustainability or animal welfare’.Footnote ⁸³ The specific environmental sustainability objectives mentioned include ‘climate change mitigation and adaptation, the sustainable use and protection of landscapes, water and soil, the transition to a circular economy, including the reduction of food waste, pollution prevention and control, and the protection and restoration of biodiversity’ alongside the reduction in usage of pesticides.Footnote ⁸⁴

The key move is thus to provide an option to embed these enhanced sustainability undertakings – if mandatory for all producers – within the product specification, via the initial GI registration or subsequent amendment procedure.Footnote ⁸⁵ The ability of producer groups to agree such sustainable practices is further recognised when describing their role and functions.Footnote ⁸⁶ Where producer groups have chosen to make such a commitment, it becomes visible to the public in two complementary ways: (i) by forming part of the product specification, accessed via a publicly available electronic databaseFootnote ⁸⁷ and also potentially a legally binding commitment, if incorporated into the certification compliance criteria (when verifying that a GI producer satisfies the commitments in the product specification); and (ii) a periodically updated, publicly available sustainability report by the producers, ‘comprising a description of existing sustainable practices implemented in the production of the product, a description of how the method of obtaining the product impacts on sustainability, in terms of social, environmental, economic or animal welfare commitments, and information necessary to understand how sustainability affects the development, performance and position of the product’.Footnote ⁸⁸ The underlying rationale seems to be that producers are more likely to be rewarded by consumers who are made aware of their commitment to enhanced sustainability.Footnote ⁸⁹ It also underscores the seriousness of the commitment, while implicitly raising the sanction of reputational damage if this turns out to be merely greenwashing.

It is therefore evident that a more comprehensive concept of sustainability informs recent developments in the agricultural GIs context. By contrast, since craft and textiles GIs tend to be produced by micro, small and medium enterprises (MSMEs) in the EU,Footnote ⁹⁰ the policy emphasis has been on legal protection as a means of achieving economic sustainability for producers. The Green Paper in 2014, introducing the possibility of legally recognising craft GIs at the EU level, highlights positive spillover effects such as ‘encouraging tourism, trade fairs and cultural activities and, consequently, creating more job opportunities’.Footnote ⁹¹ A European Parliament Resolution supporting such a regime, which protects traditional, high-quality knowhow, would ensure ‘a more socially, economically and environmentally sustainable approach to economic development’.Footnote ⁹² Detailed preparatory studies analysing the economic potential for craft GI protection emphasise regional and sustainable development in the senses of increased productivity, employment, improved marketing efforts and greater producer co-operation.Footnote ⁹³ This emphasis continues in the text of the CIP Regulation, where Recital 8 declares that protection will ‘contribute to the creation of valuable and sustainable jobs, including in rural and less-developed regions, which would help counter depopulation trends’, especially where a substantial proportion of the value added is generated within the defined region. Article 45(2) of this Regulation, which identifies the tasks undertaken by GI producer groups, recognises that such a group ‘may [ie, optionally] … agree to undertake commitments with regard to sustainability, whether or not included in the product specification or as a separate initiative’.Footnote ⁹⁴ While the draft Consolidating Regulation clearly envisions sustainability in the ‘three pillars’ sense, by contrast the CIP framework references sustainability as a general concept, with more detailed references pertaining only to economic sustainability. It is also apparent that the crafts version of the sustainability undertaking – ‘whether … in the product specification or as a separate initiative’ (emphasis added) and with no provision for an updated sustainability report or other visibility enhancing mechanisms – is relatively diluted.

It is unclear why this differential treatment exists for two EU legislative processes that have unfolded in parallel. One part of the answer may have to do with their origins. Their legislative incubators and associated institutional priorities differ: ‘It is noteworthy that [the Consolidating Regulation] originates within [the policy department, Directorate-General or] DG Agriculture and [the CIP Regulation] originates within DG Grow – Internal Market, Industry, Entrepreneurship and SMEs.’Footnote ⁹⁵ Another, more substantive driver of differential treatment may be the reluctance to impose additional regulatory compliance burdens on CIP producers, in the form of enhanced environmental sustainability standards. This ‘compliance costs’ concern has emerged as a consistent theme during the drafting of the CIP Regulation, given the small-scale nature of craft and textile production across the EU. A study of the cost effectiveness of formal certification, verification and enforcement concludes that costs ‘tend to be higher for certification marks (with verification procedures) and GIs (verification procedures and detailed scrutiny of the application) compared to the other schemes’.Footnote ⁹⁶ It was therefore proposed that as opposed to more expensive (and rigorous) external verification compliance checks – testing whether the producer being inspected makes crafts in accordance with the specification – ‘self-certification and random controls should lower the application and verification costs’.Footnote ⁹⁷

As a result of this sensitivity to regulatory compliance burdens, the CIP Regulation has introduced two alternative pathways for verification compliance. One, contained in Article 52, mirrors the conventional approach found in the agricultural GI domain, where verification is carried out by designated competent authorities in each Member State, or else this responsibility is delegated to independent bodies (or individuals) with the relevant certification expertise. Competent bodies in the agricultural GI context are usually ‘the intermediaries between the applicants and the EU Commission’Footnote ⁹⁸ and often a public body under the relevant Ministry of Agriculture or Rural affairs.Footnote ⁹⁹ The second, alternative, pathway in Article 51 relies on a self-declaration by a producer, periodically updated every three years and submitted to the national authority. This declaration is scrutinised at the level of formal compliance: is the prescribed form complete and providing consistent information? An external verification layer by a product certification body can be optionally added to this self-declaration mechanism, if the GI applicant group so chooses. A surprisingly light-touch verification process, resting on self-certification, is therefore envisaged to ensure that craft and textile producers comply with product specifications.

What consequently emerges from the EU experiment is that for the CIP Regulation, the priority given to economic sustainability clearly overshadows environmental sustainability. It also showcases voluntary sustainability undertakings being incorporated into the product specification, as an operational mechanism. These undertakings can potentially be made (i) binding, via the verification process and (ii) more visible, within the GI register. However, unlike agricultural GIs, there is no mention of an accompanying sustainability report for craft GIs. Furthermore, the verification process for crafts has itself been diluted, by opting for producer self-certification in order to reduce operational costs. Sustainability is being deployed to achieve seemingly different ends in the agricultural and crafts GI contexts.

10.3.2 Pressures to Adapt

Section 10.3.1 analysed the potential for enhanced sustainability objectives to be formally recognised within the GI registration and subsequent operationalisation processes. However, the very real risks of backsliding should also be acknowledged. Where textiles have conventionally used more sustainable traditional methods of production, how do commercial pressures to adopt less environmentally friendly measures manifest? There is an assumption in some of the GI literature that crafts and textile GIs can harmoniously accommodate the social, economic and environmental dimensions of sustainability.Footnote ¹⁰⁰ Milano and Cazella characterise this as a more general assumption, based on theories of territorial development and the production of public goods by agriculture: ‘The hypothesis that GIs simultaneously generate positive environmental, social and economic results is widely accepted in the literature.’Footnote ¹⁰¹ However, we have seen immediately above that the recently enacted EU CIP Regulation prioritises the economic dimensions of sustainability, with environmental sustainability being relatively invisible. The ‘three pillars’ paradigm is also used in fields such as environmental or administrative law as a principled approach for reconciling interests, which in turn recognises that these interests can and do conflict, depending on how they are framed.Footnote ¹⁰²

There are examples from the agricultural GIs literature that point to the unintended consequences of economic success, in the form of an increased demand for a GI product. A pioneering study by Bowen and Zapata analysed spirit drink production in the Amatitán-Tequila Valley in Mexico.Footnote ¹⁰⁴ This was conducted against the backdrop of a 15-year-long expansion of the Tequila market, ‘driven by a shift in control and ownership of the major Tequila companies to transnational liquor companies, and … accompanied by the concentration, industrialization, and standardization of Tequila production’.Footnote ¹⁰⁵ While ostensibly introduced to remedy persistent cycles of surplus and shortage in the agave cactus supply chain, these changes led to detrimental revisions of the Tequila product specification, such as the increased use of chemical inputs at the expense of more labour-intensive production practices. The revised production rules, which favoured standardisation, did ‘little to preserve traditional Tequila production methods or the environmental specificity of Tequila. Thus, Tequila is evolving into a generic, mass-produced liquor; and the farmer knowledge, artisanal production practices, and environmental resources that are associated with the specificity and heritage of tequila are being degraded’.Footnote ¹⁰⁶ In the case of the Spanish almond-based desserts, Turrón de Jijona and Turrón de Alicante, manufacturers seeking to scale up production removed the requirement to source the primary ingredient (almonds) from the region’s low-input farms and opted for intensively produced ingredients imported from abroad (primarily California).Footnote ¹⁰⁷ A study of hairy mitten crabs from the Yangcheng Lake region in Suzhou, China concludes that their increasing economic value incentivised farmers to expand crab breeding zones. This expansion, accompanied by the increased adoption of crab feed pellets, contributed to water pollution.Footnote ¹⁰⁸

Similar stresses arise in the context of traditional textile production, as the following example from India illustrates. Fabrics produced in the Bagru hand block-printing cluster in the state of Rajasthan are protected under Indian GI law.Footnote ¹⁰⁹ While the neighbouring cluster in Sanganer, also famous for block-printing, has gradually shifted to screen and machine printing, Bagru is still acknowledged for its hand block-printing technique that is over three centuries old.Footnote ¹¹⁰ It is also reputed for using natural dyes, which rely on mixtures of flowers, tree barks, roots and clay. Key features from the GI specification include a cream or off-white base colour with block prints being dominated by red or black, traditional methods being used to prepare vegetable dyes and create prints, five main groups of small motifs (leaves and buds, geometrical designs, etc), the use of Dabu (resist) soil from local black clay and its association with the community of Chippas based in that region.Footnote ¹¹¹ In the Indian context, the impact of COVID-19 restrictions and disruptions on supply chains for traditional artisanal production clusters has been widely acknowledged.Footnote ¹¹² The effects of the pandemic in Bagru have exacerbated longer term challenges that undermine many of the key features of this traditional fabric. The traditional method of production has made the cluster vulnerable to fabrics that are screen-printed mechanically in larger volumes (as opposed to block-printing by hand) and relying on chemical dyes (as opposed to natural ones).Footnote ¹¹³ These are often sold as if genuinely handmade.

These commercial pressures have serious consequences for the production cluster as a whole: ‘Natural vegetable mixtures are being replaced by synthetic materials as they are cheaper to produce, take less time to prepare as compared to the lengthy natural dyeing process [which] has increased the artisan’s exposure to potential hazards. A study … revealed that 95% of printers and chemical mixers suffer from asthmatic tendencies or chronic bronchitis and other respiratory issues [while] 61% of workers have below normal hand grip strength.’Footnote ¹¹⁵ To the extent that registered GI status increases the visibility of traditional textiles and facilitates access to new markets, this often generates associated pressures to scale up production volumes while reducing production times. From an environmental sustainability perspective, economic success can be a double-edged sword.

A counter-example can be found in the Harris Tweed industry, which is recovering from a period of decline by prioritising design-led innovation in recent years. ‘The environmental impact of a small pedal powered industry, such as the Harris Tweed® industry is comparably low to those of a greater scale, or which require a greater amount of automated machinery.’Footnote ¹¹⁶ It also showcases a single country of origin supply chain, with the wool being sourced from the United Kingdom.Footnote ¹¹⁷ Significantly, the artisanal element is a core legal requirement that is respected in practice. Harris Tweed is defined as ‘tweed which … has been handwoven by the islanders at their homes in the Outer Hebrides, finished in the Outer Hebrides, and made from pure virgin wool dyed and spun in the Outer Hebrides’.Footnote ¹¹⁸

The preceding analysis therefore does not imply that any innovations in the traditional textile space are impermissible.Footnote ¹¹⁹ In legal terms, environmentally harmful backsliding could be framed as inadequate GI enforcement against third parties outside the GI club who misuse the protected term without complying with the specification requirements. Where producers within the GI club also begin to adopt such undesirable methods, it points to inadequate verification mechanisms.Footnote ¹²⁰ Robust enforcement needs to be accompanied by a supportive web of interlinked policies, to assist those producers who do follow sustainable methods of production. These include loans to provide working capital for investing in raw materials, tools or (recognised) technology; assistance with certification compliance; financial support with marketing, attending international exhibitions, distribution and accessing export markets; the introduction of innovative new designs; and establishing e-commerce channels.Footnote ¹²¹

11.3.1 Utilitarian Arguments for Protection

A dominant justification for IP rights, at least in the US, is utilitarian – we grant these rights as an incentive for the creation of new works.Footnote ¹⁵ Framed in that way, it’s easy to see that traditional cultural works are a poor fit with the justification for IP rights. These works have already been created, typically long ago, and so incentives to create are definitionally irrelevant. One might argue that while traditional cultural creations may be old, they are constantly updated by the relevant community, and therefore the community should enjoy some protection for that new, revised creative work. (We will return below to the very difficult question of who is comprised by the term ‘community’ in this context.) Yet the protection afforded would only apply to the new innovations added to the old creative form and not the traditional elements of that form. The more the new elements contribute to a work’s appeal, the less traditional the underlying creation is. Protection and tradition, in short, are fundamentally in tension.Footnote ¹⁶

There is another problem, related to the incentives problem yet independent of it: traditional works are usually far too old to be protected by the limited-term rights that are granted under copyright and design rights (design patent in the United States), which are the most relevant forms of legal regulation. While in principle copyright or design rights could be extended for hundreds of years, the underlying notion of time limitation is critical. The incentive to create that the law provides is meant to be balanced against the harms that result from restrictions on reproduction and use that limit competition and raise prices paid by consumers.

Indefinite IP rights do exist, such as trademark (including trade dress) and trade secret. Yet these rest on a different utilitarian rationale altogether. Trade secret law protects commercially valuable information against disclosure if reasonable steps are taken to keep it secret. The classic example is the formula for Coca-Cola. In the vast majority of cultural appropriation controversies, trade secret law is not relevant because the material that is appropriated has not been kept secret and was never meant to be.

That leaves us to consider the application of trademark law. There is no insuperable barrier to adapting trademark to protect cultural creations – indeed, as we shall explain below, the related category of geographical indications provides at least a partial analogy to protections for some forms of traditional culture. However, the nature of trademark law makes it of limited use here. Unlike patents, copyrights and trade secrets, trademarks and trade dress protections are not centrally designed or intended to spur investment in socially valuable creativity. Rather, they are justified primarily to protect consumers. Certain words, symbols and designs are protected from copying because they function for consumers as indicators of the source of products or services. In short, trademark law seeks to ensure that consumers do not become confused about the source of the good.Footnote ¹⁷

But there are factors that limit trademark law’s relevance to most instances of cultural appropriation in the fashion industry. First, protection normally requires that the words, symbols or designs be used in commerce in association with products or services and that these marks become well known enough, or are simply distinctive enough, that they are clearly associated in the mind of the relevant public with the source of the good – that is, the producer – rather than the good itself. Trademark law thinks of that single source typically as a firm, but it’s imaginable that the law could be re-purposed to understand the concept of ‘source’ to refer to a particular culture, rather than a particular firm.

Yet there are two fundamental problems with this approach. First, there are already ways other than trademark law to protect legitimate consumer interests regarding the source of a traditional design or product. If consumers care whether a dress with a Saltillo fabric pattern originates in Mexico, that information can be provided by marking the garment with a tag stating that it’s made in Mexico, or, at least, that it originates with a Mexico-based producer, and using truth-in-labeling/selling laws to regulate these indicators. (This, in essence, is the approach of the US Indian Arts and Crafts Act,Footnote ¹⁸ which bans the sales of goods that are falsely represented as being Indian-made, or sold in a way that falsely makes it seem like they are Indian-made.) And if people care that the product comes from a particular cultural group within Mexico, truth-in-labeling laws can be tailored to serve that interest. Consumer protection does not require limiting the use of Saltillo patterns only to Mexican producers.

Second, and more pervasively, given that the origins of many traditional names or designs are unknown to consumers, and given the frequency with which bits and pieces originating with one culture are incorporated into creative works produced outside the originating culture, liability under a trademark law re-fashioned to protect traditional cultural materials would likely be narrow. Consider Dior’s escaramuza collection. Few consumers of these products would perceive these designs – or in fact the traditional designs worn by adelitas from which they draw – as coming from any single source. From the perspective of many Dior customers – who might live in Shanghai, Dubai or London – the overall look and feel of the clothing is vaguely Mexican and equestrian, or perhaps, even more broadly, vaguely Latin American. In short, these designs lack distinctiveness for most Dior buyers – a globally dispersed group – even if the concept is stretched to embrace a nation or ethnic group (rather than a firm) as a source.Footnote ¹⁹

Moreover, even if a traditional name or design used on a product is capable of indicating source, protection would be limited to uses that confuse consumers into believing (incorrectly) that the product originates with the source community or that it is affiliated with or licensed or endorsed by that community. In the cases where the cultural origin of the name or design is widely known – as it would have to be to achieve distinctiveness – consumers are unlikely to believe, in many if not most instances, that products marked with names or designs famously identified with a particular culture originate with or are otherwise endorsed by that culture. (Or, perhaps more precisely, were endorsed by some official with the power to speak on behalf of the originating culture.) For example, consider the case of Kim Kardashian’s (brief) use of the term ‘kimono’ for underwear. It seems virtually impossible to believe that consumers seeing the term used on Kardashian’s products would think they had any actual relationship to Japan – not least because the term was used in association with trademarks that powerfully identify the products as Kardashian’s. Indeed, the Kardashian brand in some sense actually is the product.

Those are all doctrinal problems, but the practical difficulties are perhaps even greater. The first one is, once we’ve decided to establish property rights, who is the owner? Rights in traditional designs would be collective rights, and defining the relevant community that would hold and exercise ownership rights is vexingly difficult. There are two interrelated and thorny problems here. One is that different groups may lay claim to the same (or very similar) traditional creations. Who invented riding boots, or short cloth jackets or embroidery? The other is that even within a clearly delineated group with a valid claim to creation, individuals may differ on whether and how to share the creation or collaborate with others. Communities may, or may not, have rules for the use of their traditional expressions. When such rules exist, they may or may not meet widely shared standards of representativeness or consent. But whatever the governance regime internal to a particular community, there are no agreed-upon ways for IP law to choose among different would-be users within the community.

One might imagine IP protection for traditional cultural materials that relies on temporal priority to choose among rival claimants – that is, who did it first? But this is unlikely to work in most cases. Often it is impossible to determine which group created a particular element of traditional culture first. The problem deepens when the question involves in-group ownership among rival claimants: in these cases, a rule of priority is usually of no help at all. And in some cases, traditional cultural practices are not actually all that traditional. Certainly, escaramuza has unique Mexican embellishments. Yet much of the costume developed out of Spanish and other European influences – most centrally, the horse itself. This sort of hybrid cultural expression is common and often it is not even recognised as ‘appropriation’ – at least until the person or firm doing the taking is identified as belonging to a dominant culture and the culture taken from is identified, in some sense, as subordinated.

Overarching all of these difficulties is a pervasive line drawing problem: how to determine which cultural materials will be protected and which have passed into the public domain. The answer cannot be that all traditional culture belongs to the source community; such a rule would be both profoundly destructive and unadministrable. As a thought experiment, consider what would happen if the US government sent a letter to the mayor of Mexico City complaining about the many jazz clubs that exist there, on the grounds that they were stealing and profiting from a cultural product that belongs to an American marginalised group. Jazz is incontrovertibly an American art form produced originally by a marginalised community. In that sense it is not dissimilar to the indigenous designs the Mexican culture minister complained about in the Herrera incident, the only notable difference being that jazz has been immeasurably more influential on global culture and thus more heavily appropriated across the globe.

One immediate problem, from a practical point of view, is who gets to decide whether jazz in Mexico is or is not objectionable; that is, who speaks on this topic for Americans, or jazz musicians or African-American jazz musicians. Even within source communities, often there is little agreement on what constitutes an objectionable use of culture and what does not. This is illustrated by numerous incidents in the art world, such as the controversy around Catholic painter Chris Ofili’s Holy Virgin Mary, a portrait of the Virgin covered in elephant dung. (Ofili’s painting, when first displayed in the Brooklyn Museum, led then-Mayor and Catholic Rudy Giuliani to denounce the painting as ‘sick’ and try to cut off city support for the museum.) Is Ofili due extra latitude as a Catholic himself to test the boundaries of acceptable use of a Catholic cultural icon? Does it matter that Giuliani is Catholic?Footnote ²⁰ These difficult internal questions of who gets to use what cultural material, how and when, are fundamentally unpoliceable by our legal system.

A second problem is defining what counts as a given cultural product for this purpose. There is no official arbiter of musical styles, for instance. Do jazz hybrids count as jazz? When, in 1970, Miles Davis recorded Bitches Brew with electric guitars and multiple drummers, irritating purists and essentially creating jazz fusion, was that working within the genre or creating something new? Would our hypothetical American jazz policeman care about the appropriation, in Mexico, of jazz fusion, or just ‘traditional’ jazz?

Still a third problem is what happens if an American jazz musician is invited to invest in a jazz club in Mexico. Is the connection with an American member of the jazz ‘source community’ sufficient to immunise the Mexican club against charges of cultural appropriation? Or consider again the Carolina Herrera example. What if Herrera, for instance, had hired as part of their design team a single individual from among the local indigenous people associated with the traditional serape designs they modified? What if they simply hired someone who is from the same ethnic group as the source community but who lives in New York City (where Herrera’s fashion house is based)? What if the head designer was herself Mexican? What if the prime minister or monarch of a nation that contains the source community gave his or her imprimatur to the cultural borrowing? Would any of these facts matter for purposes of claims of appropriation?

As these hypotheticals and examples show, it is often very difficult to know who should be in a position to authorise any given act of ‘appropriation’. This is just one of a multitude of thorny practical problems that must be addressed as part of an argument justifying legal protections for traditional cultural materials, at least if one wants to move beyond casual social media shaming or tsk-tsking by fashion journalists. Unless the property right is untransferable and unlicenseable, someone has to have the capacity to authorise.

11.3.2 Rights-Based Arguments for Protection

There are, in addition to the incentives-based rationales for IP, two well-established rights-based justifications. The first grows out of the theory of property famously set out in John Locke’s Two Treatises of Government. Locke identified the individual’s contribution of labour as the mechanism by which objects are reduced to property and focused on the harm – in terms of fairness rather than wealth maximisation – when another deprives the owner of the fruits of that labour. A person owns her own labour, and that person adds that labour whenever she appropriates a thing from the commons. If another takes the object the first person has appropriated, that person also takes the labour that the first person has added. That taking of labour is a harm.

Some commentators have questioned whether the Lockean framework readily carries over to the realm of intangible creative expression. There is a critical difference between the two. Reading a book and accessing its intellectual content is non-rivalrous; any number of people can do it without ‘exhausting’ or degrading the work. Consuming the work is not the same as taking the book itself (the physical item), which only one person can possess. This has led some philosophers to argue against Lockean justifications for IP rights.Footnote ²¹

But there is a deeper problem here, one that goes to the heart of what it means to ‘labour’ within the Lockean framework. For most traditional cultural expressions, current members of the in-group have not laboured to create them – they are labouring to reproduce or to perform or display them. That sort of labour is present in any act of copying, and it cannot be the sort of labour that gives rise to ownership within the Lockean framework, else every copyist would also be an owner. To justify collective rights within the Lockean framework, one must sustain an argument that the labour of someone in the group (usually an unknown person or persons and usually much earlier in time) justifies labour-based rights for the rest of the group, thereby making copies made by a group member different than those made by someone outside the group. No such argument has been made, to our knowledge, from within the Lockean framework. But if such an argument were made, it would run directly into the problem of determining who belongs to the group and how decisions must be made about use of the property right, if we were to establish one.

Of course, to the extent that individuals are currently creating works that, while recognisably falling within the boundaries of a form of traditional cultural expression, add new creativity to that form, then, as we have already noted, current IP law will grant rights in that new creative portion only.

A second rights-based justification for copyright protection is found in the idea that because original expression reflects and embodies an author’s personality, respect for creators’ autonomy requires the recognition of property rights in creative works. This justification grows out of theories set out by Hegel, Kant and, much more recently, Margaret Radin.Footnote ²²

Personality theory is based in the autonomy interests associated with property. The theory posits that property provides an especially powerful mechanism for self-definition, for personal expression and for society’s recognition of the dignity of an individual. Personality theory is appealing in part because it aligns with modern understandings of the importance of property: in a consumer society, we are (in part) what we own. And given popular adherence to a Romantic conception of authorship in the West, where most major fashion houses are based, the fashion industry is apt to find a particularly strong link between an individual creator’s personality and his or her creative expression.

The question, again, is whether the justification extends to a community’s claim of ownership over traditional designs. Personality theory at its root is about affording individuals the capacity for self-realisation through the ownership of property. Adapting this argument to provide a justification for community ownership of traditional culture requires more. First, that the ability of a community to express itself is implicated in human flourishing. This basic communitarian argument is, we believe, fairly straightforwardly sustained. And of course, if a community is barred from using traditional cultural expressions – a policy that at various times has been imposed by majorities on marginalised groups across the globe – that seems very likely to harm the community’s ability to sustain its identity.

The more difficult part is specifying when and how a community’s ability to sustain itself is likely to be harmed when traditional culture is used by individuals outside the community. It is possible that the source community could lose some, or all, of its capacity to identify itself to others as a community if outsiders are free to make use of their traditional arts or designs. On the other hand, it may be that use by outsiders (especially if that use is coupled with some form of attribution to the source community) increases public recognition of that community and the cultural materials associated with it. The outcomes will almost inevitably differ case by case, and the effects of any particular case likely will be difficult to understand in advance.

Moreover, even if harm to the source community seems likely, that community’s group interest is not the only interest at stake. The appropriator has an interest in his or her individual creative freedom that cannot be dismissed solely on the grounds that he or she used ‘someone else’s’ source materials unless there is a compelling reason to believe that the community’s interest should always override the individual’s (and that the source material at issue is, in fact, someone else’s). This is especially true in cases of cultural appropriation, such as in the Dior and Herrera examples, that involve creative re-contextualisation as opposed to mere copying. Each of us has an interest in being able to use the culture that we’re exposed to, whether it originates from the national or local community to which we happen to belong or elsewhere. Cultural artifacts and forms – whether Istmo de Tehuantepec floral designs, or American jazz – impress themselves upon the consciousness of an ever-wider diversity of people as they travel. This isn’t a process we can control. Nor do people choose what bits and pieces of culture they connect with. And that’s why a Japanese musician living in Osaka who loves jazz has an interest in ‘appropriating’ the form and creating new jazz that is difficult to distinguish from the interest of an American musician living in New York.

In short, if one wants to seriously propose a method of protection for traditional creations, it is very hard to fit that protection into well-accepted IP concepts, whether approached from a utilitarian or rights-based perspective. As a matter of IP theory and doctrine, traditional culture is a very poor fit – deliberately. And as a matter of practicality and politics, the obstacles are daunting. All that said, there are some more peripheral forms of IP that may provide some measure of protection to some types of traditional cultural expression.

Perhaps the most potentially useful is the geographical indication, or GI. Akin to a collective trademark, these designate a given geographic location as the sole source of the good. Well-known examples include Bordeaux, Barolo and Roquefort. The notion, roughly, is that only certain places can ‘authentically’ produce certain products, which are made singular by some combination of the natural and physical characteristics of a region (terroir) plus local knowledge. Use of the name with products from another location, this line of reasoning goes, is misleading to consumers.

There are many conceptual and practical problems with the protection of GIs. But doctrinally, they are recognised in many national legal systems, including that of the United States, and also under international law, such as in the WTO Trade-Related Intellectual Property agreement. GIs are not limited to agricultural products. There are various textiles and clothing products currently protected via GIs, and so there is no reason that the Mexican styles at stake in the Dior and Herrera cases could not, in theory, be given a GI designation.

However, all GIs do is bar the use of certain descriptive words or place-names. They do not bar the mimicking of style, taste or appearance. In other words, wine called Chablis, but not made in Chablis, runs afoul of the GI rule. But nothing stops a winemaker in Australia from making a wine that tastes just like Chablis – they just can’t call it Chablis. Similarly, nothing would stop a designer such as Carolina Herrera from making a dress in the style, or spirit, of the Mexican traditional patterns, as long as the GI-designated name for those patterns was not employed. In short, GIs would not address the underlying phenomenon of appropriation that critics are concerned with.Footnote ²³

In short, the law governing IP is of very limited use with regard to nearly all claims of cultural appropriation. None of this is to gainsay the fact that traditional designs or practices sometimes are copied and used by outsiders in ways that are troubling. But given the deep structure and articulated categories of IP law, the protections available under any justifiable IP regime are very limited. The vast majority of extant cultural appropriation claims are simply not addressable without a wholesale shift in our understanding of what IP law is supposed to be about. There is currently no meaningful legal path forward to the ‘problem’ of cultural appropriation.