‘Intellectual property law regulates the creation, use, and exploitation of mental or creative labour’ (Bently and Sherman, Reference Bently and Sherman2008, p. 1). One of the rationales commonly invoked to defend the existence of Intellectual Property (IP) law is associated with the idea of creativity:Footnote 1 the protection offered by IP would foster creativity by guaranteeing appropriate rewards to the creator.Footnote 2 In this sense IP is instrumental with respect to a goal: but can IP be understood as a mode of cultural creativity in its own right?Footnote 3
In my paper I will try to answer the question by looking at one particular form of IP rights, namely Geographical Indications (GIs; Gangjee, Reference Gangjee2012). GIs represent in many ways the ideal subject to explore the ability of IP law to act not just as an operational tool, instrumentally capable of encouraging and controlling innovation, but also as a conceptual reservoir which can provide constitutive elements for places and societies. According to this vision, GIs would represent something which is, at the same time, external and internal to the fabric of a place, as well as of the community living in that place. Such a vision is clearly grounded in the recognition that ‘law shapes the social realities it purports merely to represent’ (Coombe and Aylwin, Reference Coombe and Aylwin2011, p. 2029), i.e. that it is endowed with constitutive force. Thus, GIs represent a legal resource that allow ‘reifying local traditions and burnishing images of rustic authenticity onto goods’ (Coombe, Reference Coombe2005, pp. 44–45).
In particular, I will not assess if GIs are actually a mode of cultural creativity; rather, I will look at if (and to what extent) they are narrated as a mode of cultural creativity. My goal is to show that GIs are the protagonist of legal narratives in terms of cultural creativity: in other words, that they are constructed not just as a tool to protect and promote quality products, but also as a pillar which should contribute to defining the identity of a place, as well as the identities of the group(s) operating within that place. In pursuing this goal, I will address two further corollaries: (i) narratives' contents vary depending on the context in which they take place; and (ii) narratives can assume a life of their own. Both these corollaries depend on the fluid, dialogic and pluralistic nature of the relation between GIs, place and creativity. Narratives seem able to capture such a nature, rendering dynamic what would otherwise be a sterile attempt to lock up culture and, in a more immediate way, the products through which this culture reveals itself.
The legal notion of geographical indications
The cultural creativity pertaining to GIs has an additional feature which deserves to be mentioned: what we face is a form of geographically embedded creativity, i.e. which is the output of the unique interaction between natural and human factors occurring in a specific place, and time-condensed, i.e. which concentrates an evolutionary path characterised by the development of knowledge, technological innovations, traditions and skills over time.Footnote 4 Indeed, the GI uses the product's geography as a benchmark for conveying messages about its uniqueness, in terms of rarity, quality or other superior features, as well as for building stories embodying such messages.
This clearly emerges from the notion of GIs provided for in legal texts, which links the product to its terroir in order to highlight the specific characteristics and qualities such product has (Gangjee, Reference Gangjee2012).Footnote 5 Thus, Article 22.1 of the TRIPS Agreement defines GIs 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’.Footnote 6 Article 118b of EU Reguation 1234/200,Footnote 7 differentiating between Protected Designations of Origin (PDO) and Protected Geographical Indications (PGI), provides that the first consist in a geographical name of a wine whose ‘quality and characteristics are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors’, while the latter consist in a geographical name of a wine which ‘possesses a specific quality, reputation or other characteristics attributable to that geographical origin’. More in line with the provision contained in the TRIPS Agreement, Australian and Canadian legislation states that a GI identifies a wine for which a quality, reputation or characteristic depends on its geographical origin.Footnote 8
Thus, GIs are aimed at offering a sui generis legal protection for regional speciality products by creating a monopolistic right to use a geographical name (and the sign associated with it) only on behalf of those producers who operate in the area to which the name refers and who comply with the product specifications associated with the GI. These latter represent the operational core of any GI: they fix the specific features that the good must have in order to carry the GI. Despite the apparent homogeneity in the notion of GIs, such an acronym hides a host of conceptual, institutional and epistemic issues (Gangjee, Reference Gangjee2012, pp. 2ff.), including a variety of different legal tools (PDOs; PGIs; certification marks; collective marks; labelling of origin; to mention only the most important ones) which are able to offer ad hoc protection to local products (Echols, Reference Echols2008).
The trans-local dimension of GIs
The relation between local place, creativity and narratives can be better grasped by considering the trans-local dimension of GIs. Their protection finds new origin and additional meaning in the international trade of products: the need to protect local wares in ‘foreign’ markets from counterfeiting and other deceptive practices plays a pivotal role in shaping GIs.Footnote 9 In addition, the features characterising a local product are defined in accordance with the demands coming from foreign markets:Footnote 10 in this sense the idea of local product has been considered an oxymoron (Papa, Reference Papa1999, p. 164). This complex dynamic can be better appreciated taking into account that, first, historically the normative sources protecting GIs are firmly anchored to an international dimension.Footnote 11 As noted, ‘prior to “the Convention of 1883 [the Paris Convention for the Protection of Industrial Property], few countries protected indications of origin by their domestic law, and the remedies for the repression of false indications of origin were very inadequate, [being] recognized and regulated in most of the countries about the same time by national and international legislation’” (Gangjee, Reference Gangjee2012, pp. 24–25, citing Ladas, Reference Ladas1930, pp. 658–659). Second, the GIs' legislation was, and largely still is, justified in terms of preventing frauds occurring, especially in foreign markets.Footnote 12 Finally, GIs can be conceived not only as means of defence vis-à-vis frauds, but also as means of offence, a way to conquer new markets.Footnote 13 Implicit in all these aspects is a sense of contraposition between the ‘local’ and the ‘global’, in which the protection of GIs finds a powerful justification. It is no surprise, therefore, that the narratives revolving around GIs reflect one or more of these conceptions of the relation between local and global, sometimes stressing the defence pole, other times the offence pole. Nonetheless, such contraposition between global and local is eventually fictitious. ‘Integration and fragmentation, globalization and territorialization are mutually complementary processes; more precisely still, two sides of the same process: that of the world-wide redistribution of sovereignty, power and freedom to act. It is for this reason that – following Roland Robertson's suggestion – it is advisable to speak of glocalization rather than globalization, of a process inside which the coincidence and intertwining of synthesis and dissipation, integration and decomposition are anything but accidental and even less are rectifiable’ (Bauman, Reference Bauman1998, p. 42).
In addition to these elements, the justification for GIs' protection has always been accompanied by narratives about identity, authenticity, distinctiveness and community creativity. In other words, GIs are conceived not just as an operational tool to fight fraud and to conquer new markets, but also as a story which tells us something as to the community from which GIs find origin. It is not by chance that GIs have often been associated with traditional knowledge (Gangjee, Reference Gangjee2012, pp. 286ff.) or cultural property (Coleman, Reference Coleman, Herbrechter and Higgins2006).Footnote 14 At the core of the idea according to which traditional knowledge and cultural property should be protected is that they are essential in defining the identity and affirming the creativity which a community has been able to develop over time (Anderson, Reference Anderson2009; Gibson, Reference Gibson2005; Voon, Reference Voon2007). Similarly, GIs are perceived to play an essential role in preserving the identity and cultural traditions of the community to which they pertain: ‘In a globalizing world the preservation of cultural diversity has become a prime concern. Intellectual property rights, traditionally used to foster innovation, can also be used for the purpose of preservation. A GI-type protection for traditional knowledge and cultural expressions with the doctrinal basis to act against misappropriation may offer a way forward in reconciling local tradition knowledge and belief systems with Western notions of property’ (Kamperman Sanders, Reference Kamperman sanders2010, p. 89). But beyond what are often broad references to the importance of GIs for protecting the distinctiveness of a community, the real issue, the one I try to dive in, is how GIs are able to perform such a function. This requires a contextual study of GIs, i.e. an analysis able to shed some light on the meanings, practices and values associated with them.
In this paper, I will first introduce the notion of narrative and some of its methodological and conceptual underpinnings. I will then illustrate my main thesis through a case-study, comparing three specific GIs, and their related narratives, for wines: the first registered in Australia (New England Australia), the second in Italy (Amarone), and the third in the Canadian province of Ontario (Niagara Peninsula). By looking at a variety of materials, I will highlight how GIs are something at once extrinsic and intrinsic to a given social or productive environment. Finally, I will conclude by pointing to some of the features that I have mentioned before: the dialogic and contextual character of GIs; their ability to assume a life of their own; the intrinsic and extrinsic position they assume with respect to places and communities; and the complex relation existing between law, narratives and (geographically embedded) creativity.
The role of narratives in legal analysis
Central to my discourse is the notion of narrative. The term has been explored by authors belonging to a variety of different academic disciplines: historians (White, Reference White1980), literary critics (Bakhtin, Reference Bakhtin and Holquist1981;Footnote 15 Bal, Reference Bal2009), psychologists (Bruner, Reference Bruner1991), economists (Arnould and Thompson, Reference Arnould and Thompson2005) and policy experts (Roe, Reference Roe1994; Stone, Reference Stone1997; Wagenaar, Reference Wagenaar2011). I will use the studies developed by political scientists as the main point of reference for my analysis, given the relevance they can have in understanding the rationale evoked to justify the protection of GIs. Nonetheless, a few more words should be spent about the relation between the methodology I employ here and the so-called law and literature movement (Binder and Weisberg, Reference Binder and Weisberg2000, pp. 201ff.; Dolin, Reference Dolin2007). Indeed, these might seem a more natural point of reference for an analysis centred on narratives than that represented by policy studies. It cannot be denied that there are numerous elements of contact between the two: just to mention one aspect, textual analysis plays an important role both in law and literature and in interpretative policy analysis; thus, the latter must not be conceived as alternative or antagonistic to the law and literature approach(es).Footnote 16
Nonetheless, there are a couple of points of distinction which should be highlighted. First, interpretative policy analysis poses more clearly than other interpretative methodologies the problem at the centre of the enquiry (Dunn, Reference Dunn2008, p. 2): its main interest is understanding how narratives are employed to make sense of complex problems and to provide tentative solutions to cope with them. Second, the predominant methodological approach followed in the analysis of the data gathered during the empirical research is represented by the so-called grounded theory (Oktay, Reference Oktay2012; Charmaz, Reference Charmaz2006; Glaser and Strauss, Reference Glaser and Strauss1967). Indeed, a fundamental methodological issue is represented by the need to confront the initial theoretical insights or hypotheses that are at the basis of any project with the data collected over the time. This requires the continuous readjustment of theory vis-à-vis the empirical data. The grounded theory's conceptual framework consists in conceiving the development of theoretical insights as a process borne out of the interaction with the empirical data; in some sense, the latter speak to theory and allow its refinement.Footnote 17 Focus on the problem and a grounded approach seem particularly apt for undertaking a research endeavour which aims at exploring a policy problem, i.e. the protection of GIs, fraught with complex (economic, political, cultural, legal) issues and surrounded (or, rectius, swallowed up) by a vast and diverse array of documents. The final goal is to offer a contextual analysis of how the regulation of GIs is structured, functions, and is interpreted diversely in different legal systems by making recourse to a methodology which allows us to partially intrude into the complex web of rules, meanings, values and practices characterising this form of IP.Footnote 18
A preliminary point to be underlined is that narratives can represent both an object of enquiry and a methodology through which to develop an interpretative account of, in our case, a legal artefact. In the first sense, they consist of the material to be analysed by the interpreter. In the latter, narratives are instrumental, intruding into the meanings, values and practices associated with a norm or mechanism. The conception of narratives as methodology triggers a host of additional issues: in this context I will deal with three of them.
The first issue deals with the reason why we need an interpretative account for studying GIs. A legal analysis confined to black letter rules, comparing the different models through which GIs are protected, or assessing the attempts to harmonise their protection at the international level, risks losing what at an intuitive level is perceived as an important part of the picture, namely the fact that GIs seem to be able to preserve cultural traditions and local creativity, as well as to promote local communities. It is no surprise that most authors writing on GIs mention the values, meanings, and traditions associated with a GI and its related terroir: in one word, the culture behind that GI. But, apart from a few examples (Rangnekar, Reference Rangnekar2011; Gangjee, Reference Gangjee, Bently, Davis and Ginsburg2008, p. 383),Footnote 19 my impression is that these writings suffer two distinct, sometimes concurrent, problems. On the one hand, the references to the sociocultural and creative dimension of GIs are, in many cases, cursory and superficial: it seems to be something added afterwards to provide some context or to add some colour. On the other hand, such references look at the relation between culture, creativity and GIs in a way in which the latter are something extrinsic to the former, a tool that intervenes, from outside, to protect culture and traditions (Broude, Reference Broude2005). The conclusion that is often drawn is that GIs are unable to protect culture because they try to fix something that is inherently fluid and dynamic (Broude, Reference Broude2005; Parry, Reference Parry, Bently, Davis and Ginsburg2008). Thus, even if starting from the intuition that GIs embody a host of meanings connected to traditions, culture and local creativity, its full development is impaired by an instrumental vision of GIs or by anecdotal references to their sociocultural importance. The challenge is to flesh out the intuition fully, overcoming the limits existing in the mainstream legal literature. As stated above, this entails employing a methodological, interpretative tool which allows the exploration of the conundrum represented by the relation among GIs and the meanings of place, tradition, and creativity intuitively associated with them.
It is time to tackle the second of the issues related to the idea of narrative as methodology: What is a narrative? I employ the term ‘narrative’ to indicate a story used to represent a policy problem which, in this paper, consists in how to promote and protect quality wines. But a narrative is something more than the simple representation of a problem. Indeed, the policy problem is the beginning, the starting point of a chain of events which has its own coherence and develops through a middle and an ending. This chain of events finds expression in the story's plot, which is a ‘structure of relationships by which the events contained in the account are endowed with a meaning by being identified as parts of an integrated whole’ (White, Reference White1980, p. 13).Footnote 20 In other terms, the policy problem – its features and ramifications, the actions which are taken to deal with the problem, as well as the outcome of such actions – is selected by the story-teller in order to offer a description of events which has a coherent unity, is plausible, and entails a wider meaning. The narrative's wider meaning is possible because the story-teller reconnects it to cultural or moral knowledge which is shared among those constituting the public to which the story is primarily addressed. The story-teller is thus able to present a course of events that seems meaningful and relevant to the listeners or readers. In this sense, a narrative is concerned not with the truth of the events, but with their verisimilitude vis-à-vis a given moral/cultural background (Bruner, Reference Bruner1991, p. 4). In addition, the story usually involves a conflict between good and evil, the hero and the villain (Stone, Reference Stone1997, p. 138). In the narratives concerning GIs, for example, there is often a juxtaposition between virtuous producers and various (natural, human, political, economic, legal) obstacles which threaten the right course of the events, where the adjective ‘right’ refers to the shared cultural or moral meaningfulness and appropriateness of the events. This is also the reason why narratives have a dialogic structure, developing through the dialogic fight among the different forces at play, through to an ending implying some sort of change, where the obstacles are removed or some kind of arrangement is established, allowing problems to be overcome.
The final issue revolves around the characteristics of the narratives that can be reconstructed through the act of interpretation. What are the epistemic features of such narratives? And what is the subject of interpretation? Starting with the first question, narratives are incomplete, responsive and dialogic. Their incompleteness depends on the fact that stories are like living organisms, evolving over time and changing their contours through interaction with other stories and variables. Stories are always under construction and open-ended: their intermediate goals can vary, as well as the solutions for overcoming the hurdles that hamper the achievement of their ends. Narratives are also inherently responsive, i.e. they are the result of a reaction to: (i) what we perceive to be; and (ii) what we think it should be. They often start with a description of a problem for which the solutions in place are perceived as unsatisfactory; this sense of dissatisfaction grows out of the comparison between the actual problem and what is thought to be the right solution, the one in line with the values which should characterize society. Narratives thus embody a present dimension and a future one: the perception of the actual situation and an ought to project as a response to the actual situation. It is the ought to project that contains in embryo the change characterising the end of any story. The responsive character of the narratives contributes to explaining their incompleteness and fluidity: it is part of their innate nature to evolve over time. Finally, the dialogic nature characterising narratives can be considered the summa of the elements described above. This dialogic nature implies both the responsive and the evolving nature of narratives: it stresses the fact that they are provisional artefacts employed to make sense of reality, offering an explanation of present situations and possible avenues for future change. In this sense, narratives are contextual: the explanation they provide is embedded in a specific context and their normative or ought to dimension must be read as a response to such a context. At the same time, the dialogic nature of narratives implies that they can become independent and live a life of their own: everyone can use them for their own goals, reinterpreting them and underlining some components closer to their own values and ends. This is rather common in the GIs' domain. Narratives on GIs are taken, reinterpreted and used by environmentalist groups, political parties or producer and consumer associations to spread messages about the need to preserve the environment characterising a given terroir, to defend it from ‘foreign’ aggressions that threaten its distinctiveness, to provide financial aid to those involved in the production and marketing of GIs.
A different problem is represented by the places we should look at to find these narratives. Where do we find the narratives relevant for legal analysis? There is not one specific place where it is possible to find them: potentially all of the documents that deal with the policy problem under scrutiny can be useful and offer important cues to contextualise it. Of course, lawyers will be particularly interested in those documents which relate a policy problem to a legal rule: official documents preceding the enactment of a piece of legislation, newspaper articles, interviews with people involved in the creation or enforcement of a norm related to the policy problem,Footnote 21 political debates invoking norms to solve the problem, economic surveys to assess the impact of a norm vis-à-vis the problem, etc. What is relevant is collecting as much material as possible to contextualise a legal solution in the light of the problem with which it should deal: this should facilitate the emergence of the meanings, values and practices which are associated both with the problem and with the norm meant to cope with the problem. How the problem is framed, what hurdles are perceived as preventing the development of the ‘right’ course of action, and what groups favour or oppose the attempts at changing the status quo, are all elements which can emerge from the types of document mentioned above and which can offer hints at making an interpretative account of norms feasible.Footnote 22
What is the relation between narratives and the law? This will clearly be the subject of investigation in the following pages; but let me point to two preliminary notations. First, legal rules can be a vehicle for narratives: they can embody, implicitly or expressly, a vision of reality with their assumptions, values and limits. Their function is descriptive: they contribute to spreading a story that the story-teller can either agree with or reject. Second, legal rules can be a tool to remove the obstacles preventing the achievement of the happy ending and, thus, be one specific step in the course of events depicted by the narrative. Here their function is instrumental: they constitute an important variable in changing a situation perceived as unsatisfactory. In most cases, both of these functions are present: norms are used to describe and, at the same time, to change, a situation. Indeed, it is often difficult to disentangle the two aspects.Footnote 23 The present and ought to dimensions I mentioned before are intimately connected to each other and shape the descriptive and instrumental functions that GIs embody: changing a situation is the dialogic response to the description of one or more events that are perceived as unsatisfactory.
The case-studies
Amarone
The first case-study concerns a wine produced in Valpolicella, a small area northeast of Verona, Italy: Amarone. Even if a relatively recent denomination as compared to other Italian wines,Footnote 24 Amarone is one of the most sold Italian wines worldwide.Footnote 25 In 2010 it was registered as a DOCG (Denominazione di Origine Controllata e Garantita), the highest form of protection offered under the Italian system of appellations of origin.Footnote 26 Registration as a DOCG came along with a host of narratives which were symbolically attached to this legal change. Two predominant themes emerge: the first regards the preservation of what is perceived as an important historic legacy and the output of a collective process of innovation; the second is the fight against those who seek to misappropriate such a legacy by counterfeiting wine or lowering its ‘traditional’ quality. As we will see, especially within this latter theme, narratives show a high level of fluidity and responsiveness, interacting in a dialogic way and stressing the importance of norms in governing such dynamics. In both narrative strains, the upgrading of Amarone from DOC (Denominazione di Origine Controllata, a form of GI lower than DOCG) to the more prestigious DOCG was perceived as a choice to highlight the uniqueness of Amarone and of its region of provenance, as well as a way to further differentiate a precious commodity.
The first group of narratives revolves around the deep historical roots that Amarone enjoys. Most of these narratives highlight how the production of wine in the region is very old, going back to the Romans, even if, per se, the wine produced at that time was totally unrelated to the actual Amarone. Nonetheless, in all the documents reporting the history of Amarone, the starting point is represented by wine production in Roman times.Footnote 27 Additionally, such a history is depicted as the result of a collective enterprise in which actors seem to have purposely taken actions to develop quality wines.Footnote 28 The actual history of Amarone runs, at least in part, against such a picture: Amarone is the result of a random accident, when a barrel of wine stored to produce Recioto (a sweet wine, alike the Vin Santo) was ‘forgotten’ and became what is today known as Amarone.Footnote 29 What was purposely done was to exploit such an accident in order to develop and commercialise a new product. We often find references to traditions, generations of wine-makers, accrued knowledge, collective culture and innovation placed within a context stressing the historical milieu of Amarone and representing it as the result of a long chain of events.Footnote 30 In this sense, the attribution of DOCG status to Amarone is described as the recognition of the peculiar and long history it represents, which, in turn, is assimilated to a warranty for the quality of the wine. Moreover, such recognition is perceived as a vehicle to strengthen the identity of a region which finds in Amarone one of its most vivid representations.Footnote 31 It should also be noted that the stress placed on identity and history is connected to the second set of narratives: the counterfeiting of Amarone poses, in these stories, not only economic damage, but also a threat to its identity and history. Again, the registration of Amarone as DOCG should be an antidote to these menaces.
The other group of narratives constitutes the main argument advanced to justify the heightening of protection for Amarone to DOCG status. The standard narrative starts with a description of the good times when Amarone was created and its reputation developed by a few wine-makers (usually local families with a robust pedigree in producing wine). It is a period when quality seems to be the paramount goal to be achieved and in which all collaborate virtuously in enhancing Amarone's quality and in promoting it. Amarone is depicted as the output of a process of collective innovation, triggered by a limited group of producers able to cooperate reciprocally, as well as in synergy with the territory in which they carry out their activities.Footnote 32 The epitome of this process is symbolically embodied in the first registration of Amarone as a DOC: the DOC constituted the tangible recognition that the community had been able to develop something innovative, unique and original. Moreover, it was depicted as an element able to strengthen regional identity: a sort of ensign under which not just wine-makers, but all the people living in the area where Amarone is produced, could group together and thrive, culturally as well as economically.Footnote 33 But then some problems began to emerge. Once Amarone became a renowned wine, to some extent paradoxically its identity started to become an issue. Two different forces are perceived to undermine it. The first is external and is represented by the attempts to misappropriate the name Amarone by counterfeiting the wine and selling as Amarone something which is not:Footnote 34 in other words, a misappropriation through actions of nationalFootnote 35 and international agro-piracy.Footnote 36 This is an external threat since it is depicted as due to actions undertaken by outsiders who are free-riding on the reputation and identity of Amarone.Footnote 37 The second force is internal. Here the blame is laid on some local producers who, even if abiding by the standards required to label a wine as Amarone, de facto lower the ‘traditional’ quality associated with such a wine.Footnote 38 In other words, even if formally complying with what is set by the law, they are betraying tradition and the ‘true’ essence of Amarone by aiming more at quantity than quality. The references to tradition and the true essence are made in contradistinction to the requirements imposed by the law, perceived as being too loose to guarantee a sufficient quality of the product.Footnote 39 But, except for this contraposition, it is not clear what tradition and true essence actually are: they seem nebulous concepts, with vague connections to superior quality. In this context, the upgrading of Amarone to DOCG was seen as a way of strengthening its quality and identity; the new type of GI was invoked to offer more effective tools of protection and to tighten the standards required to produce Amarone.Footnote 40 Indeed, the passage from DOC (which Amarone was) to DOCG required rendering the product specifications stricter, in order, at least in theory, to guarantee a higher quality.Footnote 41 The DOCG was thus perceived as a legal tool for restoring the past, virtuous situation, fighting the attempts of agro-piracy and fencing off those producers who did not respect the essence (and quality) of the ‘true’ Amarone.
The dominant story-line in the case of Amarone is one of decline.Footnote 42 Aggression from the outside, in the form of agro-piracy, and from the inside, consisting in the dilution of the ‘true’ nature of Amarone, caused a progressive loss of identity and the waste, or betrayal, of that innovative process which was carried out by virtuous ancestors. Embedded in this story-line there is the juxtaposition between a mythical past, in which producers were co-operative, competing according to fair standards and acting for the good of the community, and the present, in which greedy, national and international competitors have recourse to unfair means of competition, thus jeopardising what had been built in the preceding years. In this way the two groups of narratives I described earlier enter into a dialogue, reinforcing one another; decline is caused by internal and external forces, but it is also the output of the comparison between a mythical past and a worrisome present.
In order to restore the golden age of Amarone some innovation had to be carried out; marketing plans, advertising campaigns, new product lines were deemed insufficient measures to counteract the ongoing decline. At this point the DOCG was invoked: bestowing such a status upon Amarone meant introducing that innovation which was needed to defend its quality and identity.Footnote 43 The DOCG, therefore, was depicted as an innovation in its own right, a legal, novel tool able to trigger virtuous effects which would benefit not only the producers of Amarone, but also the community at large.Footnote 44 The operational tool through which this restoration should take place is contained in the stricter product specifications associated with the upgraded DOCG: the higher standards contained in these documents ought to guarantee a quality more in line with the tradition and reputation associated with Amarone. It is also a story which has its heroes and its villains: the honest wine-makers, often the offspring of local families who traditionally produced Amarone, who fight greedy competitors unconcerned with the quality, history and identity that Amarone carries with it. The DOCG was the weapon that the heroes chose to use against the villains; a sword able to defend not only them, but also the territory in which Amarone is produced.
The idea of decline seems not to have disappeared from the story-line once Amarone was recognised as a DOCG. Recently a group of wine-makers created an associationFootnote 45 that, out of dissatisfaction with the product specifications as reformed in 2010 with the passage to DOCG status, aims at further raising the quality benchmark for Amarone. According to the association, the standards are still too slack, and allow for marketing wine as Amarone that is not in line, again, with the traditional methods of production. Interestingly, the blame is partly put on technological developments that would permit the use of grapes that in the past could not be used.Footnote 46 Thus, the members of the association ask for new norms, reforming the product specifications; at the same time they have bound themselves to private standards of production higher than those provided for in the current DOCG product specifications. This type of narrative, focused once more on the need to protect traditions and restore a golden age, is opposed by those who think that the reforms of 2010 have solved the problem and that the market opportunities that Amarone is currently enjoying cannot be jeopardised by further attempts to limit production and raise quality standards.Footnote 47 These last developments highlight the dialogic and fluid dynamic characterising the narratives on Amarone and their interaction with the regulatory milieu proper of this area of the law. The requests for new norms and firmer product specifications, as well as the enactment of private standards that bypass standards considered too slack, must be read as a reaction to a regulatory context perceived as incapable of offering enough protection to a product that embodies the identity of a place.Footnote 48
New England Australia
New England Australia is a GI registered in January 2008Footnote 49 at the request of some wine-makers operating within the Northern Slope zone of New South Wales, Australia.Footnote 50 It is one of the newest GIs for wines registered in Australia. Although one of the largest wine regions in Australia, it has a fairly low number of firms producing wine (Mounter, Grant, Fleming and Griffith, Reference Mounter, Grant, Fleming and Griffith2011). If compared to Valpolicella, as an area, and Amarone, as a wine, the region is huge in geographical extension and tiny in productive terms. The two regions differ also in other features: most of the vineyards in the Australian region are planted around 1,000 metres above sea level, while the maximum altitude for vineyards in Valpolicella is 500–600 metres; Valpolicella is a highly urbanised area, while this is not the case for New England; and the infrastructure available (roads, processing plants, etc.) is much more developed in the Italian region than in the Australian one. The image that New England evokes is of a pioneering wine region which is taking its first steps in the business; an image which is far away from that associated with Valpolicella, where the emphasis, also from a narrative point, is on its long history.
If the narrative predominant in the Valpolicella example is centred around the defence of identity and the fight against the misappropriation of the name Amarone, in New England the main narrative addresses the pride of creating something new. The image of the pioneers mentioned before is meaningful also on a narrative level: it points to the infancy of the wine industry in the area (Grant, Dollery and Hearfield, Reference Grant, Dollery and Hearfield2009; Chang, Campbell and Sniekers, Reference Chang, Campbell and Sniekers2007), as well as to its eagerness to build a reputation achieving recognition both nationally and internationally. Associated with this image of pioneering persons is the search for the identity of a wine region that, despite some past episodes of wine-making (Wiedemann, Reference Wiedemann1981, pp. 139ff.; Walker, Reference Walker1966, pp. 68ff.), is considered new. Having a recognisable identity, thus, represents the fil rouge that connects all the narratives related to the new New England Australia GI. Within this context, the GI is conceived as the tool which should work as a catalyst in shaping such a personality. The use of the GI is forward-looking: it is the legal artefact which wine-makers can employ for making their products more palatable in their target markets. The starting point of these narratives consists in the recognition that wines produced in the New England region are characterised by a quality higher than the average, as well as by their own distinctiveness. There is some pride in describing the achievements that local wine-makers have been able to reach, despite the peculiar environmental and infrastructural conditions.Footnote 51 But there is also some dissatisfaction: the wines produced in the area are marketed under the name of a larger wine zone, called Northern Slopes, which has little appeal on the market and which, above all, does not allow for the recognition of the peculiarities of the smaller New England zone's wines. Thus, New England wine-makers feel penalised by the use of the meaningless term ‘Northern Slopes’ for their different and superior products.Footnote 52 The solution which allows them to overcome such an impasse seems to lie in the creation of a new GI, more circumscribed than the one for Northern Slopes. The GI becomes the constitutive element to define the identity of New England wine (Chang et al., Reference Chang, Campbell and Sniekers2007, p. 15): it is the instrument through which local products can exist and that puts the region ‘on the wine maps’.Footnote 53 In this sense, the New England Australia GI is depicted as part of a wider strategy aimed at promoting the agro-food produce of the entire region, using wine as a sort of spearhead. It is also the instrument by which the local wine industry grows from infancy to adulthood, despite the weaknesses that the area presents (Chang et al., Reference Chang, Campbell and Sniekers2007, pp. 13–14).
As in the Amarone case-study, in this instance also the GI is characterised as an agent of change, a tool that will transform a situation deemed unsatisfactory. But the plot of the story is different. While in the Amarone example the predominant theme is one of stopping decline, here there is no decay. The reason is intuitive. The wine industry in New England has not yet reached its maturity; it is a child eager to grow up and to acquire its own personality, able to distinguish itself from others. There is no ready-formed identity to protect, renew or recast. In this sense it is a tale narrating the quest for independence; it can be assimilated, to some extent, to a Bildungsroman or coming of age literary archetype. ‘[T]he achievement of regional status for New England-Australia, rather than being seen as the pinnacle of branding, ought in fact be conceived as just the beginning’ (Grant et al., Reference Grant, Dollery and Hearfield2009, p. 28).
In this journey towards adulthood, the registration of the GI seems to symbolise two elements. First, it metaphorically marks out the willingness of the wine-makers to move to a new phase in their collective life; second, it offers an operational tool which will play an important role in shaping the new identity. It is also a narrative which has as its main characters the wine-makers along with the local government, which provided financial and administrative support during the registration process (Grant et al., Reference Grant, Dollery and Hearfield2009, p. 5). This represents another meaningful difference with the Amarone example, where the well-established identity connected to that wine was perceived as important by the community at large, while in the New England case the community's voices seemed to have been toned down. In this sense, it is not by chance that one of the reasons advanced by the local government for supporting the registration of the new GI was to provide a catalyst for coalescing a broader regional identity, not yet present, which could stimulate the progress and success of the agro-food produce of the entire area.
Niagara Peninsula
The last case-study analyses a GI registered in the province of Ontario, Canada, in 2000 and named Niagara Peninsula. The region is renowned internationally for its Icewine, but it also produces other types of wine, such as Riesling, Chardonnay and Pinot Noir. It is a region more developed than the Australian New England region, even if less so than Valpolicella. What is interesting to note is that the creation of this GI was almost concurrent with the enactment in 1999 of the Vintners Quality Alliance (VQA) Act,Footnote 54 by which Ontario created its own system of appellations of origin for wines. Indeed, at the federal level the Trade-marks Act provides for the protection of GIs,Footnote 55 but does not include any provision regulating the process and requirements to register a Canadian GI. Ontario and British Columbia, Canada's two principal wine-making provinces, thus enacted specific legislation introducing a system of appellations for their local wines. In the Ontario case, the protection of the wines produced in the Niagara area has been the main reason behind the VQA Act: the VQA system is thus intimately connected to the Niagara Peninsula appellation.
The VQA Act and, above all, the VQA Regulations,Footnote 56 look at the European system of appellations as their loose point of reference;Footnote 57 nonetheless, the institutional structure, the type of requirement, and the level of details are all elements which differentiate the Ontario norms from the European ones, where the latter are more complex (or perhaps more complicated) than the former. More than copying the European system of protection as such, what has been taken by the Ontario law-makers is the idea that the presence of provisions concerning GIs can be the vehicle to protect the identity of a (relatively) young industry.
It is exactly the idea that the law should intervene in safeguarding the identity of Ontario wines that predominates in the narratives associated with the registration of the Niagara Peninsula appellation. But such safeguarding should not be seen in the same way as it is for the Amarone case. There, external (misappropriation of the Amarone name) and internal (lowering Amarone's traditional quality) threats were the reasons for upgrading a GI which was already registered. In the Canadian case, the goal was to give official recognition to an identity which local wine-makers had progressively moulded in the previous years. In this sense, the Niagara Peninsula GI is also different from the New England Australia one. The latter conceives the GI as a tool to build an identity: it is the catalyst able to trigger a process of distinctiveness. In Ontario, the local wines already had their own identity and distinctiveness; what was lacking was their official recognition.
The quest to be recognised that motivated the producers of Niagara Peninsula wines can be explained only by looking to the international context within which this GI request was placed. The narrative employed is centred around the distinction between the New World, which has been able to overcome numerous obstacles for producing high-quality wines, and the Old World, stubbornly entrenched in its bias that Canadian wines are not worth drinking.Footnote 58 There are two predominant feelings in these stories: pride, for having built something unique, with its distinctiveness in the world wine map;Footnote 59 and resentment,Footnote 60 because of the European attitude which seems to deny the identity of the region's wines, and discriminate against them.Footnote 61 Once again, the innovative solution that could overcome the stalemate consisted in the recourse to GIs. GIs are described as the tool able to equalise the New World products with those of the Old World;Footnote 62 they do so by providing an official, public seal to wines which have de facto already achieved a quality comparable, if not superior, to their European counterparts. Nonetheless, it is not just an issue of pride: the new, public GI should also allow Ontario wines to get access to European markets, thus boosting their sales.Footnote 63 It is a justification which, even if initially advanced to support the VQA Act, has been later abandoned in lieu of a stronger focus on the internal market and on the ability of the VQA logo to attract Canadian consumers.Footnote 64
Another parallel narrative, which at the initial stage seemed to play a minor role with respect to the New World–Old World dichotomy, is represented by the need to go beyond voluntary standards and to obtain public support in the form of provincial regulation for the blossoming Ontario wine industry.Footnote 65 Indeed, before the enactment of the 1999 Act, the VQA system was already in place, but at a voluntary level: the wine-makers could follow private standards, which set quality and identity standards, and, if in compliance with them, could label their wines with the VQA logo (Ziraldo, Reference Ziraldo, Powers and Stewart1995).Footnote 66 But the private nature of such standards was considered insufficient; wine-makers wished to raise the bar through a public regulation that could provide a higher status to the VQA system.Footnote 67 In other words, the passage from a private to a public system of GIs was perceived as a further sign of maturity and a way to better protect consumers, regardless of (or, rectius, beyond) the need to overcome the European bias towards the Ontario wines.Footnote 68 Under this second narrative, there was also a problem of internal competition. The wine-makers who complied with the VQA private standards were facing large corporations which labelled their products as CIC (Cellared in Canada), passing off foreign wines as Canadian.Footnote 69 The VQA seemed an appropriate answer to this allegedly misleading practice, since VQA wines are produced from 100 per cent Ontario grapes. The transformation of the VQA private system into a public one was meant to give more teeth to the scheme and more guarantees to consumers about the real origin of the wines they were purchasing.Footnote 70
At the centre of the narratives described so far there is, again, the theme of identity. But the way it is developed is different from what we have seen in the previous case-studies. Here, the issue is represented neither by the danger of losing identity nor by the problem of finding a tool for constructing a new identity. What is at stake is the recognition of an identity that has formed at a local level, through individual initiatives, private standards and certification marks, and which now aspires to escape from this local dimension to compete on an equal footing with international wine-makers. In order to do so, producers asked for the intervention of law-makers, who should publicly endorse what producers have already created in terms of reputation and quality. A public system protecting GIs would offer the perfect tool to put the Ontario wine industry in line with the most prestigious wine regions around the world. In this sense, having a regulation protecting GIs means being at the same level as the big players. The feelings of pride and resentment find their objectification in the VQA Act, which will allow the expression of the quality of the local wines and stop any further discrimination. Again, the GI is depicted as a vector for innovation vis-à-vis a situation which is deemed unsatisfactory. At the same time, it is a tool for change even within the local market: the wines produced in the Niagara Peninsula cannot any more be associated with other wines, generically labelled as Canadian and de facto consisting of foreign wine.
The heroes and the villains of these narratives are easily recognisable. On the one hand, we have the local wine-makers who, over time, have been able to self-organise, create their own brands and internal regulations and, above all, achieve levels of excellence equal, if not superior, to those achieved in regions with a long history of wine production. On the other hand, there are the European institutions which discriminate against the Ontario wines along with some large corporations which mislead Canadian consumers, providing them with something which is not really Canadian. Eventually, the enactment of a public regulation for protecting GIs is represented as the final outcome of a struggle between the small, local and virtuous David and the Goliaths who seek to put up hurdles on the path towards the further development of the local industry.
GIs, identity, narratives and the law
In all three case-studies the theme of identity plays a pivotal role in explaining the reasons behind the adoption of a GI.Footnote 71 But it is a type of identity that, far from being something which can be described monolithically, is highly contextual. Indeed, GIs represent the common legal denominator through which identity is narrated in different ways. There are cases where identity must be protected from decline (Amarone); cases in which identity must be constructed from zero (New England Australia); and cases in which the identity asks for a formal recognition, officially sanctioning its existence (Niagara Peninsula).
Within these different narratives, the legal tool ‘GI’ is described as an innovation which can remove those obstacles which prevent the achievement of the final goal. The ability of GIs to be a form of cultural innovation is strictly linked to the ways in which GIs are practised. Narratives witness the fact that communities do not simply use GIs for protecting economically valuable resources, but look at them as elements constitutive of their place and to which attach meanings, values and identities. The analysis of the practise dimension of GIs, which I tried to do through the case-studies, represents the key to intruding into their multi-faceted essence.
The first point to be highlighted is the flexibility of GIs. They are not only about preserving a tradition, a well-established identity, or an economic revenue; GIs can also be used as a dynamic instrument, forward-looking and creative in its own right. The very idea of preservation should not be considered in a static way. Identity and tradition are not fossils; rather, they are concepts inherently dynamic and fluid. Preserving means reinventing to some extent; stressing some elements vis-à-vis a context which seems to downplay them; removing other elements, which are not considered in line with the ‘true’ tradition; and adding new elements, disguising them as traditional or mistakenly relinquished in the past (Grasseni, Reference Grasseni2011, p. 28; Ulin, Reference Ulin1995). Even preservation implies change: what is different with respect to experiences where there is no ‘thick’ tradition is the relation between innovation and past history. In this context, the main point I wish to stress is represented by the fact that GIs, in all the narratives analysed, and even if in different ways, are narrated as agents of innovation. The link between GIs and innovation concerns also a different aspect, even if less central in the story-lines. Their existence is described as something new on its own; as a tool which can be a powerful weapon in the hands of government, producers and consumers. This happens, in particular, in those legal systems where systems of appellation of origin are a novelty, as in Canada and Australia.Footnote 72
The contents of narratives vary depending on the historic context taken into consideration. They can consist of tales stressing the ‘thick’ historical background behind the production of the local ware and its compliance with tradition. But they can also be stories that, rather than focusing on a mythic past, stress the contemporary dimension of the local ware, as a product of a new, dynamic community wishing to promote the unique link existing between the ware and the place. In the first case, the idea of creativity finds its roots in the past, while in the second, creativity is a projection towards the future. Nonetheless, the distinction between these two types of narrative is more complex than what might appear. For example, the first narrative manipulates the past to project its wares into the future (a future-oriented use of the past),Footnote 73 while the second usually borrows elements from the past of someone else, incorporating them into their new tradition (Allovio, Reference Allovio2006, p. 228; Bérard and Marchenay, Reference Bérard and Marchenay1995, pp. 33–34). With regard to the latter aspect, it is not by chance that New World wine-makers use terms such as Champagne or méthode champenoise to describe their products: in this way, they are able to reconnect their wares to historic elements which come from other areas of the planet and, at the same time, to adapt them to the features characterising their (new) terroir.
The manipulative usage of history runs parallel to the non-static nature of the idea of preservation. Even in the Amarone case, where the historical background is depicted as thick and the issue of preservation plays a pivotal role, there has been a lot of discussion among wine-makers as to whether the upgrading of Amarone from DOC to DOCG could offer the opportunity to introduce some innovations to the traditional methods of production, in order to modernise them. The answer has been positive and, even if the main rationale remained the safeguarding of the tradition and reputation of Amarone, quite meaningful changes have been introduced. It is interesting to note that the justifications advanced for these changes correspond with a dynamic vision of preservation: amendments were needed to better protect tradition, to put it in line with a productive and social context which has deeply evolved.Footnote 74 The Amarone example offers an interesting paradigm to analyse what I have called a future-oriented use of the past: historic traditions are evoked in order to show that, for surviving in modern productive contexts, they must be adapted.
Another point that deserves mention concerns the place that GIs have in discourses about identity. GIs are something at once extrinsic and intrinsic to a given social or productive environment. In the first sense, GIs are narrated as an external legal tool to be employed to intervene in a local environment by preserving or promoting it; in the second, they are narrated as being actual or potential constitutive elements of that environment, contributing to defining its identity. From this perspective, the link between GIs and terroir is circular: the terroir provides the basis for justifying the protection of a GI; at the same time, it is the same GI that defines the contours of the terroir. Footnote 75 This is quite evident if we look, for example, at the use of GIs for promoting tourism in a region or, in a different context, at their employment within political debates. Discourses on regional tourism often make reference to GIs as constitutive elements of a territory, as one of the pillars which support the identity of that territory (Telfer, Reference Telfer2001, p. 25; Scherrer, Alonso and Sheridan, Reference Scherrer, Alonso and Sheridan2009; Yuan, Morrison, Cai Liping and Linton, Reference Yuan, Morrison, Cai liping and Linton2008; Hall and Mitchell, Reference Hall and Mitchell2000).Footnote 76 The same is true if we look to political debates. Here we see a clear trend in which GIs and territory overlap: a threat to a GI is perceived as a threat to the independence, dignity or identity of the place.Footnote 77
These elements help us to reconsider that part of legal scholarship looking at GIs as a legal mechanism through which the law attempts unsuccessfully to protect culture (Parry, Reference Parry, Bently, Davis and Ginsburg2008; Broude, Reference Broude2005). What is often left unsaid is that GIs are conceived as something static and external to the fabric of culture, traditions and identity. Nonetheless, reality runs against such a vision. As I have sought to show, GIs become a constitutive part of such culture, traditions and identity. It cannot be denied that GIs are also instrumental to the protection of these elements; in this sense I have pointed to the extrinsic nature of GIs with respect to the environment they relate to. But focusing only on their extrinsic character is reductive; even if in different ways, they always take part in the construction of a community's identity. Such participation, moreover, is not static in its very essence. GIs have a transformative power that allows them to change the values, traditions and practices forming a given identity. This is clear especially in those cases where the GI is used as a catalyst to form a new identity, where the dynamic dimension of GIs is at its best; but even in GIs which look more at the past, preservation becomes future-oriented, as I noted above.
The same idea of place, as well as its borders, is part of this circular relationship with GIs. Places seem apparently to pre-exist GIs: the latter are registered in connection to a specific place, which defines the geographical boundaries within which production can occur. But a closer look at the link between GIs and place reveals that things are more complex. Place does not pre-exist the GI, but is created at once with, and through, it.Footnote 78
The most delicate and controversial issue in registering a new GI is often establishing the borders of the place to which the GI makes reference: this is the output of an endless process of negotiation in which producers try to be included in such a place. Controversies that oppose producers who have initially been excluded from the GI's place and the government are frequent and further witness the fact that the notion of place is not something predating a GI.Footnote 79 Just to make an example out of the realm of the GIs analysed here, the delimitation of the renowned wine region of Champagne in France proved historically troublesome. The borders of the region were defined by a Conseil d'Etat decree of 17 December 1908 which excluded growers in the Aube area, leading to protests and demonstrations and, eventually, to the inclusion of new areas in the Champagne region in 1911 (Gangjee, Reference Gangjee2012, pp. 101–102). More recently, new controversies over the opportunity to include new municipalities within the Champagne region emerged, fuelled by an INAO proposal in this sense (Sciolino, Reference Sciolino2007; Stevenson, Reference Stevenson2007).Footnote 80 In another respect, a GI can also determine the landscape of a place. Valpolicella has been deeply transformed in its physical appearance due to the success of local wines, such as Amarone. Vineyards cover large tracts of the region and are continually expanding;Footnote 81 the price of land is skyrocketing, reaching half a million euros per hectare.Footnote 82
Cultural geography, one of the most lively branches in the broader field of geography, can shed some light on the relation between GIs and place (Anderson, Reference Anderson2010; Oakes and Price, Reference Oakes and Price2008; Cresswell, Reference Cresswell2006; Massey, Reference Massey1994; Jackson, Reference Jackson1989; Cosgrove and Jackson, Reference Cosgrove and Jackson1987). For cultural geographers, ‘places are taken and made by intersections of culture and context. In more detail, places are constituted by imbroglios of traces. Traces are marks, residues or remnants left in place by cultural life. Traces are most commonly considered as material in nature […], but they can also be non-material. […] As traces are constantly produced they continually influence the meanings and identities of places. In both material and non-material form they function as connections, tying the meaning of places to the identity of the cultural groups that make them’ (Anderson, Reference Anderson2010, p. 5). GIs can represent one of the non-material traces the author refers to, able to tie together a community, and its identity, to a place and, simultaneously, to shape both of them. In a way parallel to what I noted for narratives, cultural geographers underline that places emerge through dialogic processes in which the meanings associated with them are de- and re- constructed (Massey, Reference Massey1994): again, GIs are one of the players in this process of de- and re-construction.
Finally, there is a strong correlation between the narratives of identity attached to a GI and cultural creativity. In the case of GIs, identity is often perceived as determined by cultural creativity. The fact that a group, operating in a specific place, has been able to develop unique products contributes to defining the traits of that group and its place. In other words, we are facing a form of creativity which is geographically embedded, i.e. which finds its catalyst in a specific place.Footnote 83 On the other hand, it is the creativity of the group, meant as the output of a collective process, which allows it to be recognisable. GIs epitomise these features vividly, being inherently collectiveFootnote 84 and functioning as signals that permit the recognition of specific products. Conversely, any menace to the existence of a GI can be perceived as also putting at risk the distinctiveness of the creativity, and identity, behind it (Gangjee, Reference Gangjee2012, pp. 101–102).
Narratives can acquire a life of their own and be appropriated by groups different from the ones who initially promoted them. For example, consumers do not simply buy the product protected by the GI, but also the associated narrative, using it to express their own identity, social status, level of expertise, etc. (Arnould and Thompson, Reference Arnould and Thompson2005; Belasco, Reference Belasco, Belasco and Scranton2002; Penaloza, Reference Penaloza2001; Caplan, Reference Caplan1997; Fine, Reference Fine1996; Mennell, Murcott and Van Otterloo, Reference Mennell, Murcott and Van otterloo1992; Belk, Reference Belk1988; Bourdieu, Reference Bourdieu1984). In the same way, social and political groups can manipulate narratives about GIs to transmit messages about the need to protect traditional identity,Footnote 85 to oppose globalisationFootnote 86 or even to build a national identity.Footnote 87 The possibility of appropriating narratives adds further discursive power and tactical flexibility to them, but, at the same time, is complemented by the use of a legal tool, such as GIs, which allows for the conveying of a plurality of meanings. In other words, the fact that GIs are flexible on their own and can be filled with different meanings and purposes reinforces a natural process by which people tend to take narratives developed elsewhere and to adapt them to their needs, values, beliefs, etc. This process of appropriation reminds us of the fact that narratives are dynamic, fluid and dialogic, changing their contours depending on the other narratives with which they come into contact, on the context in which they take place, and on the uses for which they are employed. The construction and interpretation of narratives can be imagined as a collective process to which producers, consumers, political groups, etc. all contribute in an iterative way. The same presence of counter-narratives, opposing the predominant or official ones, is part of this endless process of deconstruction and reconstruction. Indeed, these counter-narratives stimulate the process. And, of course, what is a predominant narrative today, and associated with a specific GI, can become a minority one in the future; and niche narratives can become mainstream. Legal norms represent one of the mechanisms by which the tension between predominant and minority stories emerges: norms can convey narratives, modify situations deemed unsatisfactory, and create parallel, private regulations better suited for the stories we want to spread.
Narratives and legal frameworks
The different contents or nuances of the narratives on GIs find expression in, and are facilitated by, diverse theoretical legal frameworks and operational rules. In Europe, and in Italy in particular, the law tends to protect GIs in a rather rigid way, stressing the historical perpetuity of tradition and its static nexus with community. This rigidity finds expression in the cumbersome procedures which must be followed for registering a new GI. Regulation 1234/2007 provides that the registration procedure is divided into two phases. The first is conducted at a national level and assesses whether the requirements for registering a PDO or PGI are met.Footnote 88 Such a phase can be particularly burdensome. In Italy, for example, it is subdivided into two stages, the first in the charge of the regional government, the second of the Ministry of Agriculture:Footnote 89 both bodies verify whether the demand satisfies the requirements set by European regulation. Then, the second phase, carried out by the Commission, is aimed at checking, again, whether the request for registration meets the applicable requirements.Footnote 90 At the end, an Italian association that applies to register a new PDO or PGI must subject its demand to a triple process of control, with evident redundancies and proliferation of costs. The rigidity referred to emerges also in the meticulous standards which must be established in the product specifications attached to each European GI.Footnote 91 Everything is precisely detailed, and room for variations is limited; the amendment of the product specification may trigger another burdensome procedure like that required for the first registration.Footnote 92 Moreover, the registration of the GI requires a thorough documentation of the historic background characterising it: the importance of tradition here finds its strongest, but also most static, expression with the attempt to fix it permanently in a document.Footnote 93 This fixation should work as a sort of benchmark delimiting the contents or elements of the tradition; nonetheless, as with many forms of fixation, it aspires to an immobility which is continuously disavowed.
In Australia and Canada, such features are more vague and the legal tools employed appear less rigid. In Canada, product specifications can reach a level of detail comparable to that existing in Europe;Footnote 94 however, the procedure to register a GI, as well as to amend its product specifications, appears less cumbersome than in the European context. There is no specific procedure for registering a new GI: a manufacturer who wants to use a new geographical designation or term must apply to the Wine Authority to register such a designation or term.Footnote 95 The only substantial constraint seems to consist in the definition contained in the Trade-marks Act: the manufacturer, thus, must prove that the geographical designation applied for identifies a wine whose ‘quality, reputation or other characteristic […] is essentially attributable to its geographical origin’.Footnote 96 In Australia, product specifications do not go into as many details as in the European case and do not represent the GI's operational core; the investigation on the historical background behind the proposed GI is present, but it is not formally embodied in a document.Footnote 97 The registration procedure is more structured than in the Canadian experience, but less burdensome than in Europe. In Australia, thorough attention is accorded to procedural elements, regarding the publication of applications, the possibility of filing objections, notifications of interim determinations, and appeals against definitive decisions,Footnote 98 while substantive requirements are defined in a less clear way. On the one hand, the presence of the substantive requirements needed for registering a GI is assessed in one step, while in Europe we face (at least) a double process of control. On the other, the only substantive ground for opposing the registration of a GI is represented by the risk of confusion with an existing trademark.Footnote 99 By avoiding fixing the requirements needed to register a GI with the same level of detail as in Europe, the Canadian and Australian regulators seem to stress the plasticity of GIs, leaving more space for manoeuvre in order to adapt them to a relatively young context. Thus, it is possible to imagine a relationship between the thickness of the tradition behind the GI and the degree of stiffness of the legal frameworks employed. The stronger the tradition, the more rigid will be the rules invoked to protect it. On the other hand, when the tradition is relatively young, the system allows for more flexibility in order to permit the creation or consolidation of an identity.
The different relations existing between legal frameworks and narratives do not always correspond to the law in action. In Italy, for example, wine producers strove to introduce more dynamic tools of protection or to bypass some of the legal rigidities which seem to characterise the predominant model: this happened, as mentioned, with the upgrading of Amarone from DOC to DOCG. However, these efforts can trigger interesting counter-reactions by other producers, who further stress the need to protect the historical identity of GIs and form alternative regulatory frameworks with their private standards to defend what they believe to be the ‘true’ tradition.Footnote 100 At the very end, the conflict between these groups of producers is the output of the divergence in what tradition is and how the law should intrude into it. In the first case, tradition is the starting point of a process which can lead to meaningful amendments and in which the law is one of the agents of change. In the second, law is invoked to protect something static, whose identity is well-defined and does not need to be altered. In regions where traditions are strong, operational rules seek, thus, to balance the strict norms perceived as necessary to preserve identity with some degree of flexibility, allowing for adaptation to the changes occurring in the markets. Different perceptions of how such a tension should be solved can lead to the creation of alternative, private normative circuits, which pose themselves in a dialectic position with respect to the mainstream legal framework.
These counter-narratives shed additional light on the nature of identity that GIs try to embody. Not only is the idea of identity contextual, as mentioned above; it is also contested. Once an identity is associated with a GI, it is subject to criticism; again, identity is not a monolith, but is characterised by an endless process of renegotiation in which GIs play an important role.
Concluding remarks
Examining the narratives that lie beneath GIs allows one to better understand how the latter represent a legal tool conceived to capture and transmit the unique process of cultural creativity which has taken (or is taking) place in a specific place. But the same concept of GIs is often depicted as something creative in its own right. In this way, GIs witness the capability of IP law at large to be a form of cultural innovation: nonetheless, it remains unclear whether all IP rights show the same degree of such capability or if some are more apt than others in this regard. This paper's aim is more limited than this more ambitious goal and spaces for further research, related to other branches of IP, are left open.
GIs also offer a conceptual resource which helps to mould the discourses on community identity and to disseminate them to the ‘outside’ world. In this vein, the multiplicity of ways in which GIs are practised play a pivotal role in facilitating the process of community identity creation. Using narratives to analyse GIs has a further advantage. It permits one to highlight the dynamic, dialogic character of the regulation of GIs and how the law participates in a process of social construction in which GIs become something more than a simple branding strategy, contributing to defining the identity of a region as one of its constitutive pillars.
