The New Japanese Act on Geographical Indications – An Intangible Cultural Heritage Perspective
Abstract
The use of geographical indications for the safeguarding of intangible cultural heritage is controversial. There are as many scholars acknowledging the suitability of extending geographical indications towards intangible cultural heritage, as there are scholars arguing that geographical indications should at all times be separated from the safeguarding process of intangible cultural heritage. No matter how valuable the arguments on both sides may be, the reality is, however, that more and more countries create the possibility to supplement the formal recognition as intangible cultural heritage with the one of a geographical indication. This is also the case in Japan, that recently adopted the Tokutei nōrin suisan-butsu tō no meishō no hogo ni kansuru hōritsu (Act for the Protection of the Names of Designated Agricultural, Forestry and Fishery Products and Foodstuffs) (hereinafter GI Act).
Crucial for using the GI Act towards intangible cultural heritage is not only the extension of the scope of application to products manufactured or processed using agricultural, forestry and fishery products, but also the requirement to describe the production process in the application documents for registering the geographical indication. It is in the description of the production process that intangible cultural heritage, usually in the form of traditional craftsmanship, can find its expression. To further keep the legal framework of geographical indications applicable to intangible cultural heritage, this paper investigates to what extent the bearers of intangible cultural heritage would be able to enjoy the fruits of a formal recognition as geographical indication, to what extent the living nature of the intangible cultural heritage could be guaranteed and to what extent openness in relation to intangible cultural heritage could be problematic.
The argument developed in this paper is that the GI Act has, in principle, enough flexibility in its substantive law provisions to deal with the main problematic issues that could arise of including intangible cultural heritage. The risk that some producers take a leading role in the formation of the association of producers and so influence the product specification in the detriment of diversity can be overcome through a complaint procedure. A complaint procedure can be avoided if the producers realize that the substantive law provisions allow for accommodating diversity of intangible cultural heritage either by inscribing different production processes or by stipulating what the normal production process is. The issue of authenticity can be overcome by re-interpreting that concept to mean that intangible cultural heritage is authentic as long as it is recognized and supported by a community. In taking this view, even a geographical indications regime that provides for a procedure to revise the registration, like the GI Act, can accommodate the living nature of intangible cultural heritage. Revealing the content of intangible cultural heritage may be delicate and undesirable, making a registration for a geographical indication difficult. The GI Act, however, has enough flexibility to leave out secrets and know-how that are not directly related to the characteristics of the product.
Despite the great flexibility in the GI Act, it remains to be seen how the Ministry of Agriculture, Forestry and Fishery (MAFF) will implement the GI Act in relation to products that hold intangible cultural heritage. Since MAFF is not a ministry dealing with culture there is always a risk that economic perspectives will prevail.
