How Effective is GI in Safeguarding Traditional Art?

Most readers are already well-acquainted with India’s rich diversity of hand-crafted goods such as fabrics, ornaments, textiles, jewellery, etc. The myriad of artisans employed in this sector, who are also referred to as the “knowledge workers”, possess a great skill and know-how relating to the locally available materials, production techniques, and market trends.

Traditional Art

Traditional craftsmanship requires specialized and long-established techniques, skills and knowledge that are relic and transmitted from generation to generation. From an intellectual property view, traditional art has 3 distinct features, namely:

1. Reputation stemming from their design, origin or quality
2. External appearance
3. Know-how – the skills and knowledge used to create them.[1]

Such traditional art and knowledge have proprietary value that that can be used, traded or licensed for income generation and economic development. However and unfortunately, knowledge workers do not usually receive any compensation for this knowledge and are vulnerable to imitation and misappropriation which not only undermines the sales of traditional handicrafts but also has an adverse impact on the quality reputation of the genuine products.[2]

Such extreme diversity in our traditional art exhibit our culture through its exclusive processes, unique ingredients, etc. Therefore, it becomes important for us to be aware of these products and support its continuance to the next generation.[3]

Geographical Indications

Recently, the Government of India, in collaboration with the United Nations Conference on Trade and Development (UNCTAD), began awarding Geographical Indication status to handicraft industries. Since their incorporation into the Trade-related Intellectual Property Rights (TRIPS) agreement, geographical indications (herein referred to as “GI”) have become increasingly popular among, non-governmental organizations, policy-makers, among others as a means of protecting traditional knowledge and developing traditional brands for global markets.[4]

According to Article 22 of the TRIPS Agreement defines a GI as “an indication which identifies a good as originating in the territory of a member, or a regional locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.” For example: Florida Oranges, Swiss Watches, Darjeeling Tea, etc. The features of a GI are:

1. It is a sign.
2. Such as sign is used to identify a good coming from a specific location.
3. Such a good having a specific quality, reputation, or other characteristics purely owing to its geographical origin.[5]

A GI holds that a combination of natural and human factors strengthened by tradition can give certain products special characteristics.[6] It not only validates the place from where a certain product is known to originate but also reflects the know-how, culture, human efforts, resources, and natural conditions of particular region that make that product ‘special’ thereby adding value to such products.[7] In other words, GI’s perform the following basic functions:

1. they identify goods as originating in a particular territory.
2. they suggest to the consumers that the goods come from an area which attributes to its quality, features and reputation.
3. they promote the goods of producers of a particular area.
4. they reward traditions while allowing for continued evolution.[8]

Thus, a GI  recognises the collective right of traditional producers in a given region to claim the special quality of the product[9] thereby providing intellectual property rights to those who make and sell that product.[10]

Legal Framework of Geographical Indications

The international legal regime on the protection of geographical indications consists of the four international treaties.

1. The Paris Convention for the Protection of Industrial Property, 1883: it provides for the seizure of all goods bearing false indications regarding their source or producer on its importation into other member countries.[11] Its provisions are also applicable to a country not a party to Paris Convention but to the below discussed TRIPS Agreement.
2. The Madrid Agreement for the Repression of False I Origin, 1891: It provides for import seizures similar to the above-mentioned Paris Convention;[12] however, the Paris Convention deals only with false indication of source whereas this Agreement deals with both the false and misleading indications.
3. Lisbon Agreement: it establishes a procedure of registration of appellations on a request made by a member country’s request for such appellation to be recognized and protected in such country. The member states have been given the right to refuse acceptance of the appellation of origin by giving reasons for such refusal within a specified time period. The Lisbon Agreement extends protection against all appropriation or imitation, including cases where the true origin of a product is indicated, or where the appellation is accompanied by terms such as “type”, “make”, or the like.
4. The Agreement on Trade related Aspects of Intellectual Property Rights Including Trade in Counterfeit Goods (TRIPS Agreement): Section 3 of Part II separately and exclusively it discusses the law relating to geographical indications. Article 22 of the TRIPs Agreement obliges member states to prevent:
5. Any usage in the designation or presentation of a good that suggests that the good in question originates in a geographical area other than the true place of origin so as to mislead the public as to the geographical origin of the good.
6. Any use which constitutes an act of unfair competition within the meaning of Article 10 of the Paris Convention.

There was no specific law in India relating to GI’s which could adequately protect the interests of traditional producers before 1999. Despite India being a party to the TRIPs Agreement, it did not enact a law on geographical indications. However, the ‘Basmati controversy’ was eye-opener, post which India became serious about protecting its geographical indications and enacted The Geographical Indications of Goods (Registration and Protection) Act, 1999.[13]

The various Rights conferred by registration of a geographical indication under this Act are:

1. the registered proprietor and the authorized user or users shall have the right to obtain relief in respect of infringement of such geographical indication.
2. the authorized user shall have the exclusive right to the geographical indication in relation to the registered goods.

Remedies for infringement of geographical indications:

Civil remedies:

1. Injunctions – temporary and permanent[14]
2. Damages or accounts of profits[15]
3. Delivery-up of the infringing labels and indications[16]

Criminal remedies:

The element of mens rea is essential for conviction else the accused may be acquitted. The Act makes it an offence to falsify and falsely apply geographical indication and to sell goods with such false geographical indication punishable with imprisonment between six months to three years along with fine between Rs. 50,000/- up to Rs. 2 lacs.[17]

How Effective are Geographical Indications in Safeguarding Traditional Art?

GI’s do not directly protect the actual know-how relating to handicrafts and they are made available in the public domain through intellectual property systems, which makes it susceptible to misappropriation. However, they can provide indirect protection by preventing others from using a protected geographical indication on goods that do not come from the originating area or do not possess the required quality or characteristics. [18] The World Intellectual Property Organization (WIPO) identifies several ways in which a GI can help protect traditional art/ knowledge:

1. Promote respect and recognise value: As of today 116 GIs have been awarded, to Indian artisanal products.[19] The underlying reason behind this effort is to create and promote a national and international brand name for traditional handicrafts and prevent imitation of such craft goods by machines, which also helps to secure and enhance artisanal incomes.
2. Meeting the needs and empowering communities: The GI is a symbol that helps consumers to recognise the origin of the product. When a product is given GI status, its price increases in the international market as consumers prefer such exotic items with their proven origin. Thus, their exports are boosted and artisans from that particular region have to face less competition from sellers selling fake products. This indirectly leads to sustainable development.[20] Further, such income in-turn helps the custodians of such crafts to preserve and maintain the knowledge embodied in the making of the product.
3. Prevent the misappropriation and misuse of traditional cultural expressions: An internationally recognised GI would arguably prevent the use of traditional know-how embodied in a product, in a place other than its place of origin.
4. Contribute to safeguarding traditional cultures: GIs help in the preservation and maintenance of the knowledge linked to the making of a GI product. It also protects the collective rights of the local and indigenous communities thereby ensuring its continuance.[21]
5. Encourage community innovation and creativity: Consumers and policy makers must appreciate the dynamic nature of traditional crafts. f communities of artisans are compensated for their skills and knowledge, they will continue to be creative and innovative. GI’s not only protect but also rewards tradition-based creativity which incentivises its innovation.
6. Contribute to cultural diversity: GI tags helps consumers all over the world to access a variety of products produced in local communities thereby making them more aware of various cultural aspects relating to originating areas as reflected in the product. [22]
7. Enhance certainty, transparency and mutual confidence between indigenous peoples and communities and traditional and cultural communities on the one hand, and academic, commercial, governmental and other users of traditional cultural expressions on the other hand. [23]

Although GI provides grants certain protection to traditional art and knowledge, it still suffers from the following drawbacks:

1. Even a well-designed GI cannot make up for structural problems faced by most artisanal sectors today such as long subcontracting chains, asymmetric relations between powerful merchants and subordinate artisan-workers, lack of marketing and legal knowledge, credit constraints, precarious employment, lack of infrastructure and adequate government support post the GI registration stage, ineffective provisions for quality control, etc. GIs can ensure rewards to those master-manufacturers who are able to navigate through the GI bureaucracy and secure formal registration. Whether these will be passed on to the artisan-workers who work in the informal and unorganised sector depends on the power relations between merchants/masters and artisans. Additionally, GI’s cannot substitute building collective bodies that represent the interests of ordinary artisans; without any strong collective institutions at the local level, neither will appropriate standards be developed nor will a more equitable sharing of value occur. If prevalence of exploitative conditions continue to undermine the livelihood of artisans, the GIs will no longer have any crafts to protect.
2. GI’s cannot help safeguard traditional art as it has become harder than ever to differentiate between artisanal production and the rest of the informal manufacturing sector.
3. A GI only protects the name of the product and fails to grant protection in case of handicrafts where the traditional knowledge lies in the process of production and the quality resulting therein. Example: it may be observed that the process of weaving Pashmina Shawls is which forms the basis of the traditional knowledge cannot be protected by a GI. Thus, when an MNC gets its hands on traditional knowledge that underlies the production of pashmina, they can use this knowledge and can make a shawl of similar quality and a GI will not prohibit this kind of infringement as the GI granted to the pashmina only prevents the misappropriation of “name” of pashmina.[24]
4. The knowledge connected with the geographical indication is not protected and is made available to the public. In its latest proposals on this issue, WIPO prefers to distinguish traditional knowledge and innovation into secret and non-secret.[25]A sacred practice may be kept secret and the beneficiaries of the right should have the legal and practical means to prevent any unauthorized disclosure, use, or other forms of exploitation. However, if the custodians of traditional knowledge have no objection to its public use, then they may not require any specific legal protection to keep it from others.

Conclusion

Geographical Indication tags are relatively new tools evolved to protect indigenous knowledge including those of the handicrafts sector without hampering the process of free trade.

Although India will be able to protect its geographical indications, with the enactment of the Geographical Indications of Goods Act, it is recommend that several practical measures must be taken by the artists or their associations effective utilisation and enforcement of their GI rights.[26] Further, there is a need to identify various geographical indications and get them registered under the Act in order to get international protection for them. At international level, India is one of the forerunners in advocating the extension of higher protection to geographical indications for products in order to curb consequences similar to that of the Basmati controversy i.e., prevention of geographical indications from becoming generic names.

It is argued that protection granted through GIs can help empower local economies, preserve and traditional art, promote rural socio-economic development and assure higher economic returns. However, what remains to be realised is how well each of these claims actually reward artisans in the developing world.

References:

[1] World Intellectual Property Organization, Intellectual Property and Traditional Handicrafts, WIPO, (2016), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_5.pdf.

[2] Amit Basole, Geographical Indication: Will it Save Traditional Indian Art?, UMB, (Oct. 23, 2015), https://blogs.umb.edu/amitbasole/2015/10/23/geographical-indication-will-it-save-traditional-indian-art/.

[3] Thirumagal Jayaraman, GI Tags Protecting the Tradition &Cultural Heritage of Indian Products, CALEIDOSCOPE, https://www.caleidoscope.in/art-culture/geographical-indication-tags-indian-traditional-crafts.

[4] Amit Basole, Geographical Indication: Will it Save Traditional Indian Art?, UMB, (Oct. 23, 2015), https://blogs.umb.edu/amitbasole/2015/10/23/geographical-indication-will-it-save-traditional-indian-art/.

[5] World Trade Organization, Geographical Indications, WTO, https://www.wto.org/english/tratop_e/trips_e/ta_docs_e/modules4_e.pdf.

[6] D Menival, The Greatest French AOCs: A Signal of Quality for the Best Wines, (2007), http://www.vdqs.net/Working_Papers/Text/WP_2007/Menival_249.pdf.

[7] D Bird, Understanding Wine Technology: The Science of Wine Explained (2005).

[8] V. K. Ahuja, Protection of Geographical Indications: National and International Perspective, INDIAN LAW INSTITUTE, (June, 2004), https://www.jstor.org/stable/43951907.

[9] Lisbon Agreement for the Protection of Appellations of Origin and their International Registration (Stockholm Revision, 1967 and amended 1979) .

[10] Thirumagal Jayaraman, GI Tags Protecting the Tradition &Cultural Heritage of Indian Products, CALEIDOSCOPE, https://www.caleidoscope.in/art-culture/geographical-indication-tags-indian-traditional-crafts.

[11] The Paris Convention for the Protection of Industrial Property, Article 10, 1883.

[12] The Madrid Agreement for the Repression of False I Origin, Article 4, 1891.

[13] V. K. Ahuja, Protection of Geographical Indications: National and International Perspective, INDIAN LAW INSTITUTE, (June, 2004), https://www.jstor.org/stable/43951907.

[14] The Geographical Indications of Goods (Registration and Protection) Act, Section 67(2), 1999.

[15] Ibid, Section 67(3).

[16] Ibid, Section 67(1).

[17] Ibid, Section 41.

[18] World Intellectual Property Organization, Intellectual Property and Traditional Handicrafts, WIPO, (2016), https://www.wipo.int/edocs/pubdocs/en/wipo_pub_tk_5.pdf.

[19] National Informatics Centre, List of Crafts Registered, under Geographical Indication Handicrafts, HANDICRAFTS NIC, http://handicrafts.nic.in/pdf/LIST_OF_CRAFT_REGISTRED_UNDER_GEOGRAPHICAL_INDICATION_HANDICRAFTS.pdf.

[20] Thirumagal Jayaraman, GI Tags Protecting the Tradition &Cultural Heritage of Indian Products, CALEIDOSCOPE, https://www.caleidoscope.in/art-culture/geographical-indication-tags-indian-traditional-crafts.

[21] Suman Sahai and Indrani Barpujari, Are Geographical Indications Better Suited to Protect Indigenous Knowledge? A Developing Country Perspective, GENE CAMPAIGN, http://www.genecampaign.org/home_files/Gene_Briefing/Policy%20Brief-2.pdF.

[22] Luisa Menapace and Gian Carlo Moschini, Strength of Protection for Geographical Indications: Promotion Incentives and Welfare Effects, OXFORD JOURNALS, (July, 2014), https://www.jstor.org/stable/24476932.

[23] Daniel Grevais, Traditional Innovation and the Ongoing Debate on the Protection of Geographical Indications, JSTOR, https://www.jstor.org/stable/j.ctt24hfgx.12.

[24] Kirti Singh, Geographical Indication as a Tool for Protection of Traditional Knowledge with Special Reference to Protection of ‘Cashmere’ in Kashmir, SSRN, (Jul. 23, 2012) https://poseidon01.ssrn.com/delivery.php?ID=073073021078081085095127091115089024051051004040033087102079011075002123093006125090054018020099098032062026092102091007111022057001095014077067126069111123026093088021012082107065092081031079081122096024099025017025095113008102117114090076095006068122&EXT=pdf&INDEX=TRUE.

[25] WIPO IGC Secretariat, The Protection of Traditional Cultural Expressions: Draft Articles, WIPO Doc WIPO/GRTKF/IC/18/4 (2011).

[26] Akansha Jumde and Nishant Kumar, Protection of Traditional Art Forms under Geographical Indications Law: A Case Study of Madhubani and Sujini Art Forms of Bihar, India, JIPLP, http://jiplp.blogspot.com/2020/08/the-authors-take-protection-of.html.