Parma ham, Cognac and Roquefort cheese could become caught up in a political side-show in the Brexit talks following a European Commission position paper on intellectual property rights (IPR). The issue relates to Geographical Indications, which are specific rights pertaining to these and other food and wine products, and a demand from the EU for new British legislation. The timing of the demand - in a position paper on IP rights - is curious, and it has exposed an unexpected sensitivity in the Brexit negotiations. Why you might ask, does this matter at all?

What has happened?

The rights - known as Geographical Indications (GIs) - are a special type of intellectual property rights that protect EU food, wine and agricultural products whose 'brand' is connected to a local area. GIs protect the producers against counterfeiting or passing off by similar products from elsewhere. A number of British food products enjoy the protection of GIs and have done so for the past 10 years under EU law. They include Welsh lamb, Melton Mowbray pork pies and Cornish pasties.

Post-Brexit, Geographical Indications claimed by localities in the EU27 Member States may possibly not be recognised in the UK - unless the government includes them in specific legislation to maintain protection.

Hence, the EU position paper on IPR homes in on Geographical Indications as something that needs special attention. The EU priority is to ensure that IP rights that currently apply across the whole of the EU, will continue in force in the UK, and that they will do so for both EU and UK rights-holders. In the paper, the EU has asked Britain to maintain protection for GIs after Brexit putting in place specific legislation that will offer comparable protection to EU law. This demand has puzzled some observers, as here in the Financial Times .

Why do Geographical Indications matter?

Geographical Indications carry great sensiitivity in the European Union, precisely because they protect culinary delicacies and wines that are not only economically important in certain areas, but are core to the European identity such as Parma ham or Champagne. These food products and wines are like a precious diamond in the crown. Therefore, the EU likes to ensure protection for them in its trade agreements.

It is the usual practice of EU trade negotiators to insist on Geographical Indications being included in an agreement, as they did in the case of the Anti-Counterfeiting Trade Agreement (ACTA). Latest ACTA leaks: EU boasts of 'innovative' Internet enforcement Geographical Indications are also incorporated into the international agreement on IP Enforcement known as TRIPs. GI's would be expected to form part of a new UK-EU free trade agreement, probably within a dedicated chapter on intellectual property rights.

EU protection of GIs dates back to 1992 and a landmark legal ruling known as the Cassis de Dijon case. The ruling meant that goods legally produced and marketed in one Member State could be sold in all others. Soon after that ruling, the EU adopted the first legisalative instrument to protect geographic indications for agricultural products.

This was updated in 2006, when a new Regulation was passed by the Council of Ministers (Council Regulation (EC) No 510/2006 of 20 March 2006 on the protection of geographical indication and destinations of origin for agricultural products and foodstuffs ) This Regulation 510/2006 established a common framework across all 28 Member States for the registration and recognition of GIs. It provides for two forms of the right: Protected Designations of Origin (PDO) covers foodstuffs produced and processed in a given geographic area using recognised know-how, and Protected Geographical Indications (PGI) which protect foods where one of the production stages is linked to an area. Another Regulation adopted in 2007 (1234/2007) covered wines. The Regulations were updated in 2012 and 2013 by the European Parliament.

On that basis, the EU demand should be no surprise. However, as we know, there are no formal talks on trade yet and recent developments suggest they could be some way off. What's interesting is why the EU has raised the GI issue now.

The risk of losing protection

There is a risk that the ongoing protection of GIs, especially those in the EU27, will be lost. Brexit will create uncertainty for foods and wines that are protected by registered GIs. The current system relies on mutual recognition of GIs once the rights have been registered with the European Commission. This system breaks down under Brexit.

There is a question mark as to whether the UK will recognise European products protected by registered GIs. There is a further question as the validity of British GIs registered under the EU system. Furthermore, what is the system for registering new GIs in Britain?

Why the need for British legislation?

The problem for the EU is that protection of GIs has never been directly implemented in British law. As they were brought into EU law via Regulations, the EU instruments were directly applicable in Britain so there was no need for a domestic law to be passed.

Under the EU Withdrawal Bill (also known as the Repeal Bill) these Regulations should be automatically converted into British law. The Bill is currently before the Westminster parliament but its timetable has been delayed.

However, the conversion into British law via the Repeal bill does not ensure the ongoing recognition of GIs protecting foostuffs originating the EU27. We are leaving the system of mutual recognition, and so it seems that the conversion may only protect British GIs. In other words, Parma ham or Champagne risk losing their special IP protection in the UK post-Brexit.

An alternative scenario is that British GIs are no longer effective at all, because they would have been registered with the European Commission.

Moreover, these will be among of thousands of such Regulations being converted into British law. As such, they could be subject to amendment by the government without Parliamentary scrutiny unsing the controversial Henry VIII powers that are also in the EU Withdrawal Bill. This presents a risk. In theory, a British Minister could abolish Geographical Indications in list in a Statutory Instrument and Parliament would simply nod it through under a simple procedure where it just gives assent.

So the EU wants an assurance. This is the reason for its request that the British government should legislate to maintain the protection for Geographical Indications after 29 March 2019.

It does look a little like the EU is trying to make its case early, and it reveals a sensitivity that risks becoming a cause c?l?bre within the Brexit talks if it is not resolved.

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See my previous article on the UK-US trade talks IP Brexit: Will Liam Fox protect the Cornish pasty?

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If you liked this article, you may also like my book The Closing of the Net which discusses Internet governance policy, and includes chapters on content restrictions and surveillance. I have also written about EU policy regarding the Internet and copyright in my book The Copyright Enforcement Enigma