Deconstructing GI1 to Create Value for the Handmade
|Sethi, Ritu, Chairperson, Craft Revival Trust
April 2010, Craft Revival Trust
|Brand identity, design marks and the feting of designers is now an almost daily feature of our morning newspapers and television shows with a plethora of manufacturers vying to endorse and publicize their brands. Charges of cheating and infringement of design are not infrequent in these circles and counter-charges grab headlines, serving as still more fodder for the publicity mill.
However, amidst all this babble of newsprint and televised footage, there is a marked absence of any mention of copying associated with the many hundreds of indigenous crafts and textiles that exist in this country. The Bronze castings of the Sthapathis of Swamimalai, the dhokra metalwork, the brilliantly woven Paithani, the hand painted Kalamkari and the hundreds of other masterpieces that India has been justly famous for are clearly delineated brand identities that have been honed over decades –often centuries – of aesthetic development, technological fine tuning, daily practice and diligent hard work. Executed through specific techniques, with vast vocabularies of motifs and colours, composition and style, and rooted in culture and history.
Is this deafening silence because there is no copying of these hallowed traditions? Or is it because there is a widely accepted view that copying from traditional craftsperson’s and weavers is acceptable, and, in fact, even given tacit approval?
We have all seen a Warli painting featured across the pallu of one famous designer’s sari, a Madhubani motif on a jacket of another; iconic block-prints that have been screen-printed, a handloom replicated on the power-loom. Craftspeople, artists and weavers who have sewn and embroidered, cast and moulded, engraved and etched, printed and painted, created forms and motifs that have made India famous through the millennia – these keepers of our identity and the bearers of our syncretic culture seem to have no place in popular conversations on ‘design’ and ‘brand’ and apparently, no perceived rights or ownership of their familial and community knowledge, knowledge that has been handed down orally from their ancestors and honed with daily practice. A visit to any museum in India or overseas is a testament to their creativity as is a visit to their homes and workplaces today.
Despite this wall of public and professional ignorance or indifference, craftspeople, weavers and folk and tribal artists now have access to a means of recourse. It is this that is the subject of this paper.
As a signatory to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), administered by the World Trade Organization (WTO), India now has a legal instrument in place to provide the judicial framework of rights and principles with the associated policies and procedures in place to prevent this misuse. There has been a widespread awareness of the business and trade value of Geographical Indications and in various Western and other countries across the world this Act has been in existence, in some form or the other, for several decades. The Geographical Indications (GI) of Goods (Registration and Protection) Act, a sui generis legislation, was introduced in India as recently as 1999. Its rules were notified on 15th September, 2003 and the GI Act – applicable and extending its protection to natural, agricultural and manufactured goods and products – finally came into force in India.
The GI Act is historic in that it provides for the first time a means of protecting the trade-related intellectual property of communities as a public collective right. I would go as far as to say that this Act has started the process of democratizing the law for indigenous and creative communities –for the creators and producers of traditional handicrafts, folk and tribal artists and the weaver communities but also for traditional Indian manufactures, medicines and foods.
The basic concept underlying GIs is very simple, and is familiar to any shopper or merchandiser who chooses to buy or stock one brand versus the other. Champagne over sparkling wine, Darjeeling tea over a blend. By definition, a Geographical Indicator or GI is an indication of a name, or a figurative representation or geographic location or any combination of these that suggests the geographic origin of the goods to which it is applied. This indication, when conferred, identifies goods as having certain special qualities, characteristics and/or reputation which is essentially attributable to its geographic origin. For instance, Mysore silk, the agate stone craft of Cambay, the coir-work of Alleppy in Kerala, the screw pine craft of Kerala, the tussar of Gopalpur, Salem silk, and the sikki grass products of Bihar. Although a GI is basically a notice stating that a product originates in a particular area, it is not necessary that it be named or branded by its geographic location. The product may also be termed otherwise as in crafts such as Nirmal painting, Chamba rumal, Nakshi Kantha, Ilkal Saris, Ganjifa cards, Pashmina, kasuti embroidery, phulkari, and chikan embroidery2.
A GI can be applied for by any association of person or producers or any organization, NGO, Trust, Society, a community board or authority that represent the interests of the producers concerned.3 For example, in the case of Banaras brocades, four organisations have come together to register the GI. Likewise, Mysore silk has been registered by the Karnataka Silk Industries Corporation Ltd (KSIC), Kullu shawls, by the State Council for Science, Technology and Environment and Madurai sungudi, by the Department of Textiles, Government of Tamil Nadu.
Since the introduction of the law, the GI registry office based in Chennai has moved fairly rapidly and has till date registered over 194 GI’s of which handicrafts, folk and tribal art and handlooms number 118, 4 while several more are in the applied-for pipeline. The registration of a GI is valid for ten years and can be renewed on expiry. There is no limit to the times of renewal. The validity of the registration can be extended indefinitely.
The GI has been granted to iconic products like Kancheepuram silk, bidri, Madhubani paintings, Molela clay plaques, Kani shawls, phulkari, chikan embroidery as well as to the lesser known Solapur terry towel and the Bhawani jamakkalam.5. Once a GI is registered, the holder community has legal protection for their products and can take the matter to court if their rights are infringed.6 Simultaneously, by registering GI in India, the holders can then proceed to register their product in other countries that have the GI law in place.
The GI confers exclusive legal right to the holders of that particular GI to produce and market the GI goods. Production and sale by anyone other than the producers concerned – whether in India or overseas – is a punishable offence under the GI law. Once registered, the existence of the GI forms the basis for ownership and the basis for initiating action to curb piracy as well as the entry of spurious goods into the market by others.7. Such activity, if proved, will render the persons liable for the common law tort of ‘passing off.’ .8
Government statistics estimate that over 110 lakh people – 65 lakh in handlooms and 47.6 lakh in handicrafts – craft and weave in over 2000 distinct clusters located across the length and breadth of predominantly rural India. Disadvantaged both economically and socially, an overwhelming majority belong to the weaker and more vulnerable sections of society. These immense numbers are the skilled creators of products that have immense brand recognition and goodwill built over generations and that have over the millennia defined India and the Indian identity.
This law of GI is in place to benefit and protect them while simultaneously also benefiting the consumers and users of their creations.
Why do our artisans, artist and weavers need GI protection?
We are all aware that there has been a decline in the market for craft products and handloom. A key factor to this decline is the unchecked and rampant competition of products from mills and factories that are mass- produced replicas of the handmade and hand-woven; products that I would go so far as to call fake and spurious. These products misrepresented as handcrafted and hand-woven are marketed as handmade and traditional, and are often sold under the name of the craft or weaving cluster. Accessing customers through urban and export distribution channels, these replicas are available in stores in India and across the world, often at a fraction of the cost of the original. Not only is this unfair to the traditional community of skilled makers, it also effectively cheats the consumers and the public at large.
The ubiquitous mass-produced plastic gods and godesses that are rapidly replacing the terracotta painted figures can be seen in even a casual survey. Likewise, the mass-produced bandhini tie and dye saris of Rajasthan and Gujarat, replicating the traditional craft in polyester. The same is true of the rubber reproductions of the Kolahpuri chappals of Maharashtra, screen-printed imitations of Madhubani and Warli paintings and the resin-cast copies of the traditional wood carvings of Andhra, Kashmir, Karnataka and Kerala. The iconic block prints of Bagh, Bagru, Sanganer, and other centres available in cheap printed copies. The famed hand weaves of Banaras now replicated on the power loom without so much as a nod of acknowledgement. The list goes on and the examples are endless.
Copied, sold cheaper and misrepresented in the market, these imitations have had a direct reflection on the earning and employment of craftspeople and handloom weavers, resulting in immense suffering and hardship. Unable to compete against the machine and simultaneously having been robbed of their USP, skilled hereditary artisans are giving up their ancestral occupations and opting for menial manual labour in order to survive. A few have also been known to have taken the still more extreme measure of suicide.
The GI umbrella is a valuable business asset, providing a defensive and positive protection to the economic and moral interests of the creators who have been vulnerable in the past to powerful trade and commercial interests.
Why do the consumers need protection?
Handicrafts, folk arts, embroidery and handlooms have over the millennia enjoyed a large market, and are bought and appreciated by a wide consumer base. Consumers are now often misled into believing that the product they are buying is genuine.
Once the GI is conferred it becomes illegal to misrepresent the place of manufacture or to pass of goods as the goods of another place or to mislead and deceive consumers into believing that a product is manufactured elsewhere. GI protection is in place to provide a stamp to original goods by controlling piracy and entry of spurious replicas that are sold on the back of traditional products and the reputation and goodwill they enjoy.
So is the GI a panacea for all ills?
Well, it’s a start.
The question that is now exercising all who work in this sector is how can dispersed, home-based, rural makers leverage the GI effectively to their advantage as well as that of the sellers and buyers of all handmade goods?
The pre-eminent value conferred by the GI umbrella is that by naming or branding the goods it underlines that these goods have special qualities derived from their unique locations, and are therefore are different from other products created elsewhere. With current trends of manufacturing being out-sourced to anonymous far-flung areas, the GI GPS locate the product pointedly in its historic, cultural, environmental roots, thus giving consumers a distinct clear alternative to unidentified mass-produced products, often leading to premium prices for products.
Secondly, the GI is a potent tool of product differentiation, in effect a seal of uniqueness. Applicants need to furnish details on the qualities that make the product unique and special. This may be the links between the terrain, climate and the product, as in the case of the Bagh hand block-printed textiles which due to the special qualities of the Baghini River in which they are washed, retain a luster and brightness of color that is unique. The product’s USP may also be the reputation and goodwill it enjoys. Examples of this phenomenon are the Kanjeevaram sari and the Banarasi wedding brocade sari are iconic textiles, which due to their history of excellence continue to enjoy high consumer demand across India – it stands to reason that the weavers whose ancestors have toiled to create this brand recognition and goodwill be the beneficiaries of this goodwill. The product may also be identified by the production technique and raw material used; for instance, the technique of turned wood lacquer defines the Etikopakka products. Furthermore, products may be distinguished by the cultural underpinnings and historic roots of the product or process as in the motifs and colours that create the distinct vocabulary of Toda embroideries and the history of the Ganjiffa cards, which has bestowed upon them specific forms and compositions.
Thirdly, in the shadow of climate change there is progressive recognition in India and abroad of the value for the handmade, the organic and the natural, and this is reflected in consumers and buyers seeking alternatives that fulfill these criteria. Craftspeople and weavers with registered GI products are positioned to capitalize on this trend and appeal to this growing segment. Using earth-friendly production processes with a low carbon footprint, raw materials that are natural with low wastage content, crafts and handloom products are a green and fair-trade alternative with a tremendous comparative advantage that can be favorably translated into ensuring improved livelihoods, jobs and orders for this sector.
Fourth, unlike in mass production where the maker has been reduced to a cipher, distinct craft and weaving clusters that have been awarded the GI are a refreshing new alternative, clearly stating who the community of makers are, putting a face to the product – a sharp contrast to the nameless and anonymous producers whose products are marketed across the globe. The bronze’s cast by the Sthapathis of Swamimalai, the Patola woven by the Salvi family, the community of potters that make the largest terracotta objects in the world – the Aiyannar horses and elephants of Tamil Nadu, the Asari community of Palanganathan, Madurai who carve wood based on temple traditions, the Pithora paintings of the Rathwa Bhil tribals are only a few examples. The GI highlights community, traditional knowledge, longevity, cultural and historic rootedness and other intangible values that are reposed in the product.
Fifth, GI creates added value in the market place, reinforce the integrity of the product and assists in making purchasing choices. It certifies the product is genuine and is a source of information and credibility. Intrinsically linked to the product, leading to greater brand recognition, high recall and improved consumer perception it works towards developing the rural economy, protecting business and trade interests of the holding community and is an effective tool for development.
Additionally, branding by GI has a soft-side as research has shown from countries with older established GI’s – the building of more cohesive maker communities with pride in preserving and furthering traditional knowledge and traditions. In the long run GIs are often substitutable for quality seals as holders strive to maintain quality, protecting the reputation of the product, benefiting both themselves and the consumer.
What can we do?
The moot question for now all who work in this sector is how dispersed, home based, rural hand makers can leverage the GI to advantage the makers, sellers and buyers of handmade to be truly effective. Though there is no magic wand, there is a process that can be followed.
We need to educate craftspeople and weavers on the advantages of obtaining a GI and once registered the fact that they have a legal right to prevent copying and infringement as this is, at present, the first and only form of Intellectual Property Right that they own as a community which provides protection to their products, their age old goodwill and respects their oral knowledge and traditions.
We need to work toward educating consumers to buy only genuine original GI handmade products and not spurious, imitations and copies that are detrimental to lives, earnings and livelihoods of artisans. Ignorance of the law can no longer equal innocence.
Finally, by using GI products, buying GI products and merchandising GI handicrafts we are working towards ensuring the right of existence for our craftspeople and weavers, improving their earnings, sustaining livelihoods and preserving traditional knowledge.
Geographical Indications (GI) of Goods (Registration and Protection) Act, 1991
The GI should not be confused with an Appelation of Origin, as while conceptually similar to the GI, it is not exactly the same. In an Appellation of Origin only geographical names can qualify as appellations of origin. As per its legal definition, an appellation of origin refers to the geographical name of a country, region or locality which designates a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors. The Appellations of Origin are very common with agriculture products that typically derive their characteristics from their place of production. In India, the Appellations of Origin are subsumed in the broader concept of Geographical Indications. Therefore, GIs can be geographical names or any other symbols or names. While an indication of source is merely an indication of the geographical region where the product or service originates, e.g. ‘Made in India’, the product may or may not have characteristics linked to the geographic region.
At present, the application fee for registration of a geographical indication for goods in one class is Rs. 5000. The fees for various other submissions to the Geographical Indications Registry such as applications for opposition, etc are further prescribed in the First Schedule of the GI Rules, 2002.
The Aranmula Mirror of Kerala was the first handicraft registered under the GI Act. Other products to which GI has been conferred include Pochampalli ikat, Salem fabric, Payyannur pavithra ring, chanderi, Kota doria, Kotpad handloom, , Channapatna toys, Mysore rosewood inlay, kalamkari, kasuti Embroidery, Mysore traditional paintings, Kondapalli bommallu, Thanjavur paintings, Kashmir sozani, Kani shawl, nakshi kantha, silver filigree, Alleppey coir, coconut shell crafts of Kerala, maddalam of Palakkad (Kerala), Navalgund durries, Thanjavur art plate, Swamimalai bronze icons, temple jewellery of Nagercoil, blue pottery of Jaipur, Bastar dhokra, Arani silk, Salem silk, leather toys of Indore, Sankheda furniture, Kutch embroidery, Santiniketan leather Goods, Andhra Pradesh leather puppetry, Tangaliya shawl, Puneri pagadi, Sandur Lambani embroidery, Khandua textiles of Orissa, Gadwal saris, Santipore sari, Cannanore home furnishings, Kinnauri shawl, Paithani saris, Balaramapuram saris, Kasaragod sari, Surat zari craft, Kosa silk saris of Janjgir, Champa and Raigarh, the Baluchari sari, Varanasi glass beads, Khurja pottery, Bhagalpur silks, Kashmir papier-mâché, Kashmir walnut wood carving, and Pembarthi metal craft.
The procedure for registration of a geographical indication is fairly simple. First, an application in the prescribed from, along with a statement of case, with supporting documents and the prescribed fee, is to be submitted to the Registrar of Geographical Indications in Chennai. The application, inter alia, should include details of the unique qualities or reputation or other characteristics which are attributable to the geographical region, including the human skills involved, if any. The Registry scrutinizes the application for any deficiencies and, if any are found, communicates the same to the applicant. After the application is made in order, the Registrar appoints a consultative group of experts to ascertain the correctness of the claims made and on the basis of their report, an examination report is issued. After the applicant complies with the examination report, the application is published in the Journal of Geographical Indications. If no opposition is received, then the GI is registered after the expiry of four months from the date of publication.
Offences under the Geographical Indications of Goods (Registration and Protection) Act, 1999 are punishable with imprisonment for a term of not less than six months, extendable to three years. Also enforced is a fine – this may not be less than Rs. 50,000 but may extend to Rs.2 lakhs.
The following acts are considered criminal and are cognizable offences under the GI Act
by any person who is not an authorised user of that GI is an infringement . This includes-
Use of the GI in the designations/ presentations of goods that indicates or suggests that such goods originate in a geographical area other than the true place of origin in a manner which misleads people to the GI of such goods;
Any use of the GI which constitutes an act of unfair competition, i.e. any act contrary to honest practices in industrial and commercial matters;
Passing off unregistered goods as registered GI goods;
All acts which create confusion with the enterprise, the goods or the industrial and commercial activities of the authorised user;
False allegations in the course of trade of such nature as to discredit the enterprise, the goods or the industrial or commercial activities of the authorised user;
Any use of the GI which misleads the persons as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity of the goods;
Uses another GI to the goods which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the customers that the goods originate in the territory, region or locality in respect of which GI relates.
In conversation with Jagdish Sagar of Anand and Anand, New Delhi
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