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A CRITIQUE ON PROTECTION GRANTED TO TRADITIONAL HANDICRAFTS BY GEOGRAPHICAL INDICATION OF GOODS ACT, 1999
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A CRITIQUE ON PROTECTION GRANTED TO TRADITIONAL HANDICRAFTS
BY GEOGRAPHICAL INDICATION OF GOODS ACT, 1999
AUTHORED BY
- DHANAVARSHENE V
School of
Excellence in Law, Chennai, Tamilnadu
INTRODUCTION:
Indian handicrafts are
renowned for their aesthetic and functional value. They are a harmonious blend
of design expertise and technical skills. This industry plays a significant
role in India's economic growth, contributing over Rs.15,000 crore annually to
foreign exchange earnings and employing approximately seven million people.[1]
However, the process of globalization has introduced substantial challenges to
this sector, including competition from similar crafts in countries like
Pakistan, Bangladesh, Sri Lanka, Indonesia, and China, as well as counterfeit
products. One of the most affected groups is the producers of distinctive craft
items, who often lose their market share due to widespread infringement of
their products. With the implementation of Intellectual Property Rights (IPR)
in India following the TRIPS agreement, a framework has emerged for
safeguarding these unique national products. The utilization of IPR mechanisms,
particularly "Geographical Indications" (GIs), is playing an
important role in protecting these distinct craft items associated with specific
regions. GIs prevent the unauthorized use and exploitation of regional brand
names while providing a unified branding approach for these products. Beyond
brand building and marketing, IPR protection offers various advantages to
artisans and craft producers. It elevates the value of their products, shields
them from piracy, and ultimately enhances the socioeconomic status of artisans
by increasing sales and profitability.
METHODOLOGY:
The study is
exploratory in nature to provide clear guidance. The doctrinal methodology of
research has been followed. Books, research journals, government reports and
websites were used as sources of data.
TRADITIONAL HANDICRAFTS AND INTELLECTUAL PROPERTY:
From an intellectual
property (IP) standpoint, handicrafts can be divided into three separate
elements:
1. Reputation: This aspect is linked to
their style, origin, or quality.
2. External Appearance: This pertains to
their overall shape and design.
3. Know-how: This involves the skills
and knowledge utilized in their creation.
Each of these elements
has the potential to be safeguarded through different forms of IP protection.
For instance, know-how might be safeguarded through patents or kept as a trade
secret. External appearance could be protected by copyright or industrial design
rights. Reputation, on the other hand, may find protection through trademarks,
collective or certification marks, geographical indications, or legal measures
against unfair competition.
In this project, the
study is limited only to the Geographical Indication and how far it is able to
protect the traditional handicrafts and its artisans.
GEOGRAPHICAL INDICATIONS:
Article 22.1 of the TRIPS
Agreement defines GI as follows:
‘Geographical indications are, for the purpose
of this agreement, 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’
The general standards of
protection against unfair and deceptive business practises that must be offered
to all GIs are outlined in Article 22.2. Article 23 offers special protection
to GI of wines and spirit. It provides that GI for wine and spirit must be
protected even if there is no risk for deception and unfair practice. The
Article further requires the member nations to pass legislation to avoid
labelling wines or spirits with GIs that don't come from the location
specified.
TRIPS agreement required
the members to protect their traditional handicrafts by providing GI under
national laws. India realized its need to protect the unique products of its
geographical territory after the U.S patent office offered patent to RiceTec
company in 1997 for its two unique rice varieties i.e., “Texmati” and
“kasmati”. India was forced to file a lawsuit against the patent in the US
court of law, which was a costly process. Fortunately, India prevailed, and
Rice Tec was given a more limited patent covering just a few Basmati types.[2]
Finally, India enacted Geographical Indications of Goods (Registration &
Protection) Act in 1999. Subsequently, Geographical Indications of Goods
(Registration and Protection) Rules of 2002 also came into force.
Section 2(1) (e) of the
Geographical Indications of Goods(Registration and Protection) Act, 1999 states
“Geographical Indication” as follows: “Geographical Indication, in relation to
goods, means “An indication which identifies such goods as agricultural goods,
natural goods or manufactured goods as originating, or manufactured in the
territory of county, or a region or locality in that territory, where a given
quality, reputation or other characteristic of such goods is essentially
attributable to its geographical origin and in case where such goods are manufactured
goods one of the activities of either the production or of processing or
preparations of the goods concerned takes place in such territory, region or
locality, as the case may be.”
BENEFITS OF GI FOR HANDICRAFT SECTOR:
GI is a place- based IP
right. It provides a collective right to all the authorized users in the
defined GI territory. The knowledge of the indigenous people must be protected
as these people are easily subject to be riding off by other dominant people.
India is diverse country. It is popularly known for its handicrafts and
handloom products since ancient days. The people engaged in making these works
are mostly located in the rural areas. These handcrafted items represent our
culture and long-standing tradition that has been observed since ages. Section
2(1)(f) of GI allows GI registration for
handicrafts (including handlooms) which is as follows: "goods" means
any agricultural, natural or manufactured goods or any goods of handicraft or
of industry and includes food stuff
There exists a difference
between handicrafts and traditional handicrafts. Before the introduction of GI
act, 1999 India followed the definition of the term “traditional handicrafts”
as provided by the Task force on handicrafts, which is as follows: “Handicrafts
are item made by hand, often with the use of simple tools, and are generally
artistic and/ or traditional in nature. The include objects of utility and
objects of decoration”. It is widely accepted that what distinguishes
traditional from industrial handicrafts is the symbolic relationship between
the handicrafts and a particular culture. Only traditional handicrafts are
protected in the GI Act.
The benefit of GI act for
artisans are summarised as follows:
·
The registered producers and authorized users can seek
civil and criminal remedies in case of infringement of the GI. The authorized
users will get an exclusive right to use the GI.
·
GIs aid in the maintenance and preservation of the
knowledge related to the production of a GI product.
·
It helps in creating a national and international
brand name for those traditional handicrafts. This in turn increases the prices
for these good in national and international market, as the consumers prefer to
purchase exotic items from the place of origin. This ultimately increases the
income of artisans.
For example: Rajasthan is
home to an enormous range of handicrafts, many of which became well known after
receiving G.I. tags. A few examples of handicrafts with GI status include the
Kota Doria, Blue pottery from Jaipur, Sanganeri hand block printing, Thewa art,
and Kathputlis. These items not only have benefited the concerned artisans in
Rajasthan economically and socially, but have also helped the state's tourism
and cultural development.[3]
WILL GI SAVE TRADITIONAL INDIAN ART?
1.PROBLEMS IN
REGISTRATION OF AUTHORIZED USERS.
Section 2 (1) (k) of the
Act defines Authorized user “……if such goods are handicrafts or industrial
goods makes or manufactures the goods and includes any person who trades or
deals in such production, exploitation, making or manufacturing as the case may
be of the goods”. This definition is very broad. In case of producers, they
must be in the same geographical location as that of the product but this is
not possible in case of traders. For example, a producer must be a person who
is producing Kancheepuram silk saree in Kancheepuram. A trader who is residing
and trading in any place other than Kancheepuram can also apply for Authorized
user. It is difficult to assure that he will be trading only with GI tagged
Kancheepuram silk saree. He may also trade with other handloom sarees in the
name of Kancheepuram silk sarees. Unless he attempts to maintain the identity
of origin of the product, the regional identity of the product is will be lost.
Even if a producer fails
to register himself as an authorized user, he will not be treated as an
unauthorized user. But the problem is he cannot accrue the benefits offered by
law in case of infringement. The major reason for negligence to register as
authorized user is that the indigenous groups does not have adequate awareness
about GI. In many cases especially in textile industry the application for
registration of GI and Authorized user is mainly done by the co-operative
societies and exporters association. So, they are the persons who ultimately
benefit from GI and not the actual artisans and weavers who are the major
contributories for the uniqueness of the product.
The capital of Uttar
Pradesh, renowned for its exquisite Chikankari embroidery, has a significant
craft industry employing around 250,000 artisans, mostly women in rural areas.
Chikankari contributes to the livelihood of approximately one million
non-artisans and brings in an annual export revenue of about $12.5 million for
the state. Despite being the first craft in UP to obtain Geographical
Indication (GI) certification, many artisans are yet to fully benefit from it
due to the state's slow efforts in organizing and educating them about the GI
Indications Act. Artisans are unaware that they themselves should register as
authorized GI users to access the advantages provided by the GI status for the
craft.[4]
2.LACK OF POST
PRODUCTION CONTROL:
It is important to note
that Indian law has some provision to regulate the quality of GI tagged
product. Section 11(2) requires the application for registration of GI to
include how the product relates to a certain territory in terms of the natural
and human components that are present in the good and how it is produced, its
reputation, characteristics which are due exclusively or essentially to the
geographical environment, the relevant class of goods, the geographical map of
the territory, the particulars of appearance of the good.
The applicant group
should choose an "Inspection Body" to oversee the quality of the
goods included in the GI. As per Rule 32 (1)(6)(g) of the Geographical
Indications of Goods (Registration and Protection) Rules, 2002, the applicant
must provide the particulars of inspection body which will regulate the use of
GI in a specified territory. But the absence of an inspection body is not a
barrier for granting registration. The Act does not impose any sort of
liability on an inspection body and they are not obliged to make any periodic
verification to ensure that product specifications associated with GI are
compiled.
According to section 27
of the Act, an authorized user who has failed to comply with quality standards
of the product will be removed from the list of authorized users. The
registration of a geographical indication (GI) can be cancelled or modified if
there is a violation of registered conditions by the tribunal. According to
Section 2(1)(p) pf the Act the "tribunal" refers to either the
Registrar or the Appellate Board. Before taking such action, they must notify
and allow the involved parties to present their case. If the Appellate Board
orders a correction, it instructs the Registrar to update the register
accordingly. But, these mechanisms are inadequate.
The inefficient quality
control serves as motivation for "free riders" in that community.
Free-riders in a collective group are members who reduce product quality to
compete with other GI producers or similar producers outside the GI market,
particularly when consumers are unaware of the differences.
The following three
situation would illustrate problems faced due to lack of post-production
control:
Around 70% of weavers
expressed enthusiasm in incorporating the Kota Doria GI logo in their products,
recognizing the benefits of having GI registration. However, sellers of
counterfeit Doria have resorted to using alternative names like "Kota
Cotton." Unfortunately, the weavers lack knowledge on how to report GI
violations, resulting in only a single case filed against dealers involved in
selling fake Kota Dorias. This limited action is due to the weavers'
unfamiliarity with the complaint process.[5]
The traditional weaver
community faces widespread poverty and malnutrition, leading to suicides and a
shift towards less skilled employment, notably seen through MGNREGA
participation. Five inspection bodies were identified in the GI registry
application for Banarasi sarees. Despite multiple certification marks like Silk
mark and Handloom mark, efforts such as the high-security nano
particle-embedded fusion label haven't restored the Banarasi saree's
reputation. Inferior quality products posing as Banarasi sarees, particularly
Surat-made synthetic and Chinese-made sarees, dominate Indian markets. Weavers,
fearing the economic burden of legal action, choose to compete by reducing
quality rather than enforcing their rights in court. This has led to a decline
in the Banarasi saree's overall reputation, rendering the GI tag ineffective.[6]
In 2006, Channapattana, a
village near Bangalore, received Geographical Indication (GI) status for its
finely crafted wooden toys. These toys faced threat from cheap machine-made
copies from China and sold at lower prices. The GI designation aimed to revive
the struggling industry by boosting exports, curbing counterfeits. However, the
GI status fell short of expectations, particularly in supporting local
artisans. Inadequate enforcement measures have hindered its effectiveness.
Despite gaining recognition in India, Channapattana toys continue to be plagued
by counterfeit products flooding the market, with insufficient action from the
legal system and relevant authorities.
3. GI ACT IS NOT AN
STANDALONE SOLUTION:
In the given context, Geographical
Indications (GIs) can play a role within a comprehensive industrial policy but
are not a standalone solution. They cannot replace the crucial efforts needed,
such as providing sufficient credit and infrastructure, formalizing informal
agreements, and establishing unions and collective organizations that represent
the interests of both ordinary artisans and master-merchants.
Without robust local
collective institutions, it becomes challenging to develop appropriate
standards, achieve fair value distribution, and implement favourable industrial
policies. If inadequate industrial and trade policies, along with exploitative
conditions, persist and continue to harm the livelihoods of ordinary artisans,
GIs alone will not be sufficient to safeguard traditional crafts.
The following two
situations would illustrate that mere granting of GI is not sufficient to
protect the artisans and handicrafts:
In 2007 GI tag was
granted to “Thanjavur Paintings” made in the district of Thanjavur. Many local
artisans have not yet been registered as authorized users. Paintings made
elsewhere, like in Chennai, Madurai, Trichy and Pudukkottai, are also marketed
as “Thanjavur paintings”[7]
The registration of Kullu
Shawls as a geographical indication (GI) in 2006 was expected to preserve this
traditional craft, but the implementation process has been slow. The
registration is valid for 10 years, with three years already elapsed in the
efforts to establish it properly. Delays have arisen due to misunderstandings
between the Department of Science and Technology and the Kullu Shawls Weavers
Association (KSWA), leading to an incomplete GI logo. Furthermore, the KSWA has
requested funding but faces obstacles in establishing a functional office in
the valley due to government bureaucracy and red tape.
Toda embroidery was granted GI in 2013. Toda people
considered ‘toda embroidery’ as sacred and wore it during ceremonies and
occasions. But these are used in shoe fabric and sold online by the
counterfeiters. [8]
4. CANNOT SOLVE ISSUES
ARISING FROM SOCIAL AND ECONOMIC FACTORS:
A properly executed Geographical Indication (GI) system cannot fully
address the underlying issues in the artisanal sector. At most, GIs can provide
increased profits to merchants or master-manufacturers who successfully go
through the GI registration process. The extent to which these benefits reach
the artisan-workers, who are often paid on a piece-wage basis, relies on the
power dynamics between merchants/masters and artisans and an effective
socio-economic policy.
In the case of Bidriware products, there is a lack of organization or
mechanisms to achieve a consensus among artisans relating to marketing
strategies and pricing for their products. Artisans who obtain raw materials
from Karnataka State Handicraft Development Corporation (KSHDC) are obliged to
sell their finished items exclusively to KSHDC, giving the organization
significant control over pricing and payments to the artisans. During
discussions, artisans expressed concerns about receiving inadequate
compensation for their products compared to the prices at which they are sold
in KSHDC's Cauvery Emporium showrooms. However, artisans find it challenging to
negotiate for better returns due to their dependence on KSHDC for workspace and
raw materials. Bidar, being a tourist destination, sees a notable number of
local sales for Bidriware products. Due to a lack of agreement among artisans
regarding final product prices, some artisans rely on the local market.
Additionally, concerning online sales, middlemen and online sales platform
owners purchase products in bulk at lower prices from artisans and sell them at
higher margins on various online platforms.[9]
SUGGESTIONS:
1.
GI must be
developed through a participatory process.
Everyday artisans, who are the creators of this knowledge, should play
an active role in determining which products and production methods should
receive protection. In theory, this participatory process is established. But
in practice, they are excluded. For example: In case of Banaras saree, trader organizations, a local NGO, producer cooperative societies and governmental agencies
strived to obtain GI. Except few
weavers, ordinary weavers who actually contribute to the knowledge was
excluded. This exclusion occurred because of more influential
master-weavers and traders, who held control over the local organizations
representing artisans. Officials, dealers, and wealthy master weavers led the
consultations, which were held in hotels away from the weaver communities. The
GI application as a whole was drawn up in English and copies of it were not
served to the ordinary artisans.
2.
GIs must be sensitive to the dynamic nature of
artisanal knowledge.
GI unintentionally stops the flow of knowledge by claiming that only some
approaches and concepts are "authentic." But like all businesses,
artisanal industries are dynamic and constantly adapt their processes and products
to match shifting market demands, governmental changes, and technological
advancements.
3.
Regulate inspection bodies
The Act must mandate the setting up
of inspection bodies. They must act as a watchdog that producers do not lower
the quality of the goods produced. The functioning of these bodies must be
regulated and the Act must also include provisions relating to how often inspection must be
carried on. There must be responsibility upon inspection body. There must not
be discrimination whether the inspection body of GI is by the government or
not.
4.
Role of
government
There is minimal awareness about GI
registration and legislation not only among the consumers but also among the
producers. The efforts taken by the Government was not sufficient. So,
Government must take active measures to achieve the purpose of providing GI.
In case of absence of infrastructure
and other necessities, or to streamline the sales or to protect the
authenticity of GI tagged handicrafts the government can directly participate.
For example: the GI on Mysore silk is fiercely protected by the Karnataka state
government, where the Mysore Silk products are sold only through the government
sales emporiums and no other person is given the franchise.
CONCLUSION:
Geographical Indication (GI) tags are
modern tools aimed at safeguarding indigenous knowledge, including that within
the handicrafts sector, without disturbing the free trade process. While the
Geographical Indications of Goods Act in India offers protection for its
geographical indications, it is crucial for artists or their associations to
adopt practical measures for effective utilization and enforcement of their GI
rights. Additionally, there's a necessity to identify various geographical
indications and register them under the Act to attain international protection.
On the global stage, India stands as a proponent for extending higher
protection to geographical indications, aiming to prevent scenarios similar to
the Basmati controversy. Though protection provided through GIs can drive local
economies, preserve traditional arts, foster rural socio-economic development,
and secure higher economic returns, the true extent of how these claims
genuinely benefit artisans in the developing world is yet to be fully realized.
[1]Indian handicrafts industry and
export, Indian trade portal, (Sept 30, 2023, 7:00 AM) https://www.indiantradeportal.in/vs.jsp?lang=0&id=0,31,24100,24111#:~:text=Handicraft%20is%20one%20of%20the,%2C%20attars%2C%20agarbattis%2C%20etc.
[2]Thirumagal Jayaram, GI tags
protecting the tradition and cultural heritage of Indian products, Caeidoscope,
(Sept 30, 2023, 8:15 AM) https://www.caleidoscope.in/art-culture/geographical-indication-tags-indian-traditional-crafts
[3] Dr. Krishna Kishor Trivedi, Impact
Of Geographical Indication Tags On Handicraft Industry Of Rajasthan, JCREVIEW, (Sept 30, 2023, 10:40 AM) https://www.jcreview.com/admin/Uploads/Files/623d27c6f118d4.22003146.pdf
[4] Sunil Sudhakar Varnekar and Dr.
Upankar Chutia, Geographical indication and handicrafts: A critique,
International Journal of Civil Law and Legal Research, (Sept 30, 2023, 6:40
PM), https://www.civillawjournal.com/article/37/2-2-8-463.pdf
[5] Dr. Krishna Kishor Trivedi, Impact
Of Geographical Indication Tags On Handicraft Industry Of Rajasthan, JCREVIEW, (Oct
1, 2023, 6.30 AM) https://www.jcreview.com/admin/Uploads/Files/623d27c6f118d4.22003146.pdf
[6] N.Lalitha and Sowmya Vijayan,
Infringement in GI protected products: How do we protect the producers and
consumers, (Oct 1, 2023, 7.30 AM) https://gidr.ac.in/pdf/wp-256-3248.pdf
[7] N. Ramesh, GI tag hasn’t worked
for real Thanjavur paintings, The New Indian Express, (Oct 1, 2023, 7.30 AM), https://www.newindianexpress.com/states/tamil-nadu/2014/aug/25/GI-Tag-hasnt-Worked-for-Real-Thanjavur-Paintings-651982.html
[8] Shantha Thiagarajan, A stitch in
time, Times of India, (Oct 1, 2023, 10.30 AM), https://timesofindia.indiatimes.com/city/chennai/a-stitch-in-time-/articleshow/103125726.cms?from=mdr
[9] An exploratory study into the
problems and prospects of bidriware, Ramaih Intellectual Property Law, (Oct 1,
2023, 6.30 PM), https://vtpc.karnataka.gov.in/storage/pdf-files/BIDRIWARE%20STUDY%20REPORT.pdf
Article Information
A CRITIQUE ON PROTECTION GRANTED TO TRADITIONAL HANDICRAFTS BY GEOGRAPHICAL INDICATION OF GOODS ACT, 1999
Authors: DHANAVARSHENE V
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/04
- Issue 7
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International Journal for Legal Research and Analysis
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