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.
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!
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.
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
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.
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
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.
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
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 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.
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.
Protection could provide a
moral recognition of the authorship/ownership of the knowledge and
technologies associated with traditional crafts and craftsmanship.
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.
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.
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.
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
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
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
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
What, if any, has the
impact been on those crafts and craftspeople who have obtained a GI
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.
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
Can they apply for
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
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…
What are the Next Steps
required to obtain the intended benefits for registered GI holders?
Who will manage the Rights?
Who will provide the
What role can the Office of
the DC (handicrafts) and DC (Handlooms) play?
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
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
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.
working on GI as it is a tool we have in hand we need to take the long view.
have defined the different reasons for seeking protection, we need to
determine the scope and the extent of protection required to achieve the
We need to ask ourselves
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?
process of consultation with craftspeople, NGO’s and others articulate the
requirements and principles that need to be followed for an effective system
the rights and consider the exceptions