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In praise of the real thing - Some thoughts on IPR and GI

Sethi, Ritu, Chairperson, Craft Revival Trust

Kolhapuri chappal look alikes made in rubber and sold by a large shoe chain, Ajrak hand-blocks printed on a roller machine, powerloom masquerading as a Banaras handloom, Kantha printed by silk screen, Dhokra lost wax statues made in moulds that replicate it in thousands…the stories are endless.

For many copying is a profitable business.

A freely available emporium of ready made goods that require no investment in product development ; goods with an ageless appeal with cultural and symbolic values that add up to a sum that is greater than its parts. The instant recognition and mass appeal of handcrafted products duplicated with mass production technologies churning out replicas at a low cost, with no fear of reprisal, makes for a win-win business model!

Craft activists and craft communities no longer have the luxury of time to deal with issues of copying and faking. Faced with increasing consumerism and demand for new products cases of copying will only multiply.

 

For craftspeople and their communities who are at the receiving end of this free-loading it has lead to not only huge economic loss, but even greater to a loss over their ancestral ‘property’ - the collective knowledge of their forefathers. This is further compounded by feelings of marginalisation and helplessness due to their inability to prevent or effectively deal with this copying and faking.

 

We in India now have some recourse to this.

The pursuit of GI for products of traditional craftsmanship

 

The promulgation of the Geographic Indication Act (GI) of 1999 that came into play in September 2003  has provided some succour under the law as it affords GI holders protection under the law. This GI law protects the GI holder by conferring exclusive right to brand, market and certify the quality and genuineness of the GI goods to the holders of the registration. Production and sale by anyone other than the producers is a punishable offence under the GI Act.

A decade after the promulgation of the Act, 155 arts, crafts and handlooms have received a GI status with 17 applications pending. Of the total GI’s registered across India 70% are of handicrafts and handlooms, a noteworthy number, implying that the application for a GI is being taken seriously by the sector.

This then begs the question of why no handicraft GI’s have proceeded to use this powerful tool as a marketing opportunity?

Why have none of the registered GI’s used the law to proceed with infringement action against cheats and counterfeiters?

This is a huge gap, a space on post-GI registration action where joint action by NGO’s and GI holders is now the need of the hour.

As pioneers who will have no markers to go on perhaps the first step could start with the adopting of a GI registered craft cluster, working with the community to develop a process methodology that leads to the leveraging of this powerful marketing tool. Developing the GI’s economic potential to help craftsperson’s regain their Rights over their community knowledge, provide guarantees to consumers on the genuineness and quality of the product, create a brand, promote and market it and empower the community.

Developing a methodology for others to follow

I have attempted to put together some questions on the challenging issues that confront us on the protection that needs to be awarded to products of craftsmanship and additionally to the protection of the traditional knowledge associated with the production of these products.  A slow but careful understanding of GI is essential so that we do not rush in where angels fear to tread.

 

Two criterions informed the framing of the questions. The first is the need to keep at the heart of this protection the ultimate well-being of the craftsperson in this rapidly globalised world.

 

The second criterion used was to deliberately take a long view - so that through thoughtful deliberation we can get to the heart of the challenge and create a roadmap that stands us in good stead over the years to come.

 

 

The STATE OF PLAY

 

QUESTION  1: The first and fundamental question is to identify what to protect and why we need to protect it.

 

Some of the reasons why crafts need protection could include:

  • The protection of crafts and craftsmanship could be to ascribe ownership to communities.

The prevalent system of community ownership of craftsmanship in India has over generations led to its conservation and sustenance. It has promoted the use and furthered the development of knowledge and technologies associated with it. It is an essential part of the craftsperson’s community and their identity. This craft knowledge has been preserved, transmitted and has evolved, generation by generation within communities and castes.

Community rights and responsibilities that have governed crafts and craftsmanship have existed since millennia, long before concepts of intellectual property or ownership have come into being. This continues to play a vital role.

  • The protection of crafts and craftsmanship could be to bring equity to essentially unjust and unequal relations.

However modern norms do not seem to place value on community based knowledge, widely regarding it as available in the public space, freely available for all to use.

The situation at present is that what should  be considered as the craft communities natural, pre-existing and primary rights over their craft knowledge and practice, is currently in a nebulous space, and their control over it is tenuous, to say the least. They lack the voice and the recourse in establishing their rights over what can be considered their millennia old ownership. This has resulted in an increasingly unjust and unequal equation.

  • The protection could be to accord recognition of craftspeople as holders/authors of the knowledge associated with traditional craftsmanship

Protection could provide a moral recognition of the authorship/ownership of the knowledge and technologies associated with traditional crafts and craftsmanship.

  • The protection could be to prevent appropriation by controlling piracy, copying, faking and passing off

Copying, faking and passing off have arisen as a result of the invisibility of craftspeople  based as they largely are in villages and remote areas across India. There is lack of access and till the promulgation of the GI Act there was limited recourse to appeal in cases of infringement. The need for protection could therefore be to prevent the unauthorized appropriation through piracy, copying, faking and passing off as. It could also perhaps include derogatory use.

This should necessarily include issues relating to the sharing of economic benefit with the community of craftspeople that accrues to infringers.

Additionally issues of credit sharing can be part of this point.

We will need to identify cases of misappropriation and the harm they have caused e.g. Handloom vs. power loom; block printing vs large scale copying by big textile mills, silk screen printers and other examples.

  • The protection could be for Preservation of traditions and culture

Craftspeople who have been subject to the onslaught of powerloom, manufactured crafts, duplication, replication of designs have lost livelihoods and traditions. The objective of this protection could therefore include the maintenance of practices and knowledge of craftsmanship and the cultural heritage and contexts manifest in its practice.

  • The protection could be for Promotion of crafts and craftsmanship

While the protection of crafts and craftsmanship does not necessarily be seen as an end in itself, its protection can be used as a form of promotion, as focus is brought on issues that have been dormant for decades.

  • The protection could be for Economic benefit

Copying and faking takes place as there is economic benefit to be had by the appropriating person/organisation. So the aim here could be to prevent unauthorised use; or/and to enable commercial use on fair terms; or/and to regulate the manner of use; or/and to receive attribution. Or to ensure that these benefit accrue to the craftspeople

  • The protection could be for any other considerations that is valid for craftspeople

 

 QUESTION 2

 

  • Does the rationale of the GI regime in India serve its objective of protecting the intellectual property of the holders of traditional craftsmanship and their product?
  • Does it serve the broader objectives that civil society and other stake holders seek for the sector?

 

On reading the above considerations for the need of protection it becomes apparent that the GI Act fulfills the above stated requirements in a very limited way. This is because the fundamentals of GI are historically rooted and oriented towards agricultural produce and not to traditional knowledge. 

 

However though the GI Act is inherently flawed when linked to the arts and crafts, at least we are fortunate in India that we have in place some regulatory framework for this Sector. Before the GI we had little or no legislation to protect crafts and community knowledge

 

On the other hand while the GI does not fulfill all our stated needs its strength lies in it being Trade, Brand and Marketing related as GI  promotes the special qualities of a product, its uniqueness, its quality, its distinctiveness, its USP

 

 False use is now punishable under the Act. In the past a product could be passed off, copied, faked, now once the GI is registered it becomes an offence to do so.

 

This is a great positive if used well.

 

QUESTION 2

Who can apply for a GI?

The craft must lie in a defined area historically as provenance of the location of craftspeople has to be provided for; the specification of technique and process must also be defined. Once the applicant is able to prove that they have been located in a particular area and have historically practiced the craft their they can apply for a GI

 

QUESTION 3

 

What, if any, has the impact been on those crafts and craftspeople who have obtained a GI registration?

 

As the next step after GI application seems not to have taken place in any of the craft clusters we are unable to answer this question. However in examples of agriculture e.g.  Darjeeling Tea –several case studies exist.

 

This is an area which needs work - Perhaps start with looking at those GI that were awarded in 2004 -2005. The gestation has been long enough for an impact assessment.

 

QUESTION 4

 

  • What, if any, is the recourse of those crafts and craftspeople who are practitioners of the same/similar craft, but fall out of the ambit of the registered  GI location?

  • Can they apply for additional GI’s?

 

 

Again we have no answers here and need to conduct some case studies

 

  • We need to study the case of Pochampally Ikat and all the other ikat traditions; study the files on Bandhini and other tie-dye traditions and many other instances where same/similar traditions exist in different geographies.

  • Thewa in Pratapgarh, Rajasthan vs. the family that practices it in Madhya Pradesh

  • What about those craftspeople who reside outside the the latitude and longitude specified in the GI

 

QUESTION 5

 

What, if any, has the impact been on those of those crafts and craftspeople who are practitioners of the same/similar craft, but fall out of the ambit of the registered GI location?

 

Case Studies to be looked at: Application No 52 For Nakshi Kantha Registered by the Kaaru-Kul foundation for the district of Birbhum in West Bengal. In effect excluding all the other districts and places in West Bengal where Nakshi Kantha is practised. Note that several National Awards have been awarded to embroiderers in Chattisgarh for the craft of Nakshi Kantha! A real mess here…

QUESTION 6

 

What are the Next Steps required to obtain the intended benefits for registered GI holders?

  • By Government

  • By the Holders themselves

 

Who will manage the Rights?

Who will provide the certification?

What role can the Office of the DC (handicrafts) and DC (Handlooms) play?

 

QUESTION 7

 

Given that craft practice across the sub-continent is connected what are the bilateral issues at stake in the Region?

 

While we ‘share’ crafts with our neighbors the GI is valid only within the sovereign National boundaries.

To move it to the international level India will have to apply for a GI in each country. This is because there is no second tier protection in place for crafts in the international GI system. This second tier protection is ONLY applicable for wines and spirits, which are supported by a multi-national register.

Our neighbors (who are all signatories of the TRIP agreement) have yet to introduce the necessary legislation in their countries as India has done vide its GI Registration and Protection Act of 1999.

The first step for our neighbors is to put in place the GI Act through legislation.

Once the legislation is in place then India will need to sign individual bi-lateral treaties with each country on GI. Until then there can be on further step in this area.

However, the point to note is that there is no first player advantage. So our neighbors are fortunate that they can learn from our miss-steps. 

 

WAY FORWARD

 

Besides working on GI as it is a tool we have in hand we need to take the long view.

Once we have defined the different reasons for seeking protection, we need to determine the scope and the extent of protection required to achieve the objective?

We need to ask ourselves the QUESTION

 

In an ideal world, what moral bindings, policies, legislations would we like to see in place that is appropriate for the crafts sector given the ethical, economic, environmental and social concerns?

 

Through the process of consultation with craftspeople, NGO’s and others articulate the requirements and principles that need to be followed for an effective system of protection.

Determine the rights and consider the exceptions



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