IPR PROTECTION TO HANDLOOMS IN INDIA – AN OVERVIEW
#Textiles #Textile #Handlooms #IPR #India
India has made many strides in the world economy since its Independence in the year 1947. The country sets a very good example to aspiring third-world countries to take leaps in economic development. Currently, the Indian economy is the fifth-largest economy in the world. The country has also made recent strides in the field of arts and crafts. Out of the said industries, the Handloom Industry is one of the largest unorganized sectors in the Indian economy. The handloom sector according to certain estimates employs nearly forty lakh workers. The handloom industry is an integral part of Indian history right from the Harappan Civilization to the present times. The Indian tradition of handlooms is reputed all over the world for its diversity, variety, and richness. In this light, one can say that the hand-woven fabric is not only a piece of cloth but a symbol of the Indian Civilization. After agriculture, the handloom sector is the second in terms of providing livelihood to the rural poor. India has a variety of handloom traditions across its length and breadth for instance in the north we have Pashmina of Kashmir, Phulkari of Punjab, Panchachuli of Uttarakhand, Chikankari of Uttar Pradesh; in the east, we have Apatani of Arunachal Pradesh, Muga Silk of Assam, Naga Shawls of Nagaland, Jamdani of West Bengal; in the south, we have Pochampally Ikkat of Telangana, Kalamkari of Andhra Pradesh, Kancheepuram Sarees of Tamil Nadu, Kasavu of Kerala, Mysore Silk of Karnataka; in the west, we have Bandhani of Gujarat, Paithani of Maharashtra, Shisha of Rajasthan. The list is only illustrative, we have also numerous local traditions. These days, we have seen demands growing for the traditional handloom textiles from both the domestic and international sectors. Indian handloom textiles are much sought after in the international market since antiquity and the trend even continues to date. Ironically, the weavers who are involved in the handloom production are unable to survive in the cutthroat global competition and also the predatory practices by the multinational based textile companies who with their technological advancement of technology threaten the livelihood of traditional handloom weavers. This is one of the reasons that currently the Indian handloom weaver is living from hand to mouth and is always at the brink of starvation. It is imperative to protect the traditional methods, knowledge, and also the handloom products to preserve our rich tradition of the past. In the current global regime, the protection of the handloom weavers can be conferred with the help of Intellectual Property Rights. This paper is an attempt to give an overview of the Intellectual Property Rights available to the handloom weavers and to suggest the measures to cover up the existing lacunae in the legal regime of IPRs in India concerning handloom protection.
Objectives of the Study:
The objective of the study is to highlight the following:
To study the existing Intellectual Property Rights about the handlooms in India.
To find out the existing lacunae and blind spots in the legal regime of protection of handlooms in India.
This study follows the research methodology of the pure doctrinal study and it involves the usage of primary and secondary sources of data such as the legislations passed by the Parliament of India, Commentaries, Research Papers authored by research scholars, etc.
Framework of Intellectual Property Rights in India:
In India initially, intellectual property rights were not so prevalent but after the signing of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement under the World Trade Organization, the issue of intellectual property rights came to the fore and is currently assuming great importance in the trade and commerce of the country. There are various legislations in India dealing with the intellectual property rights passed by the Parliament of India. These legislations cover many varieties of the intellectual property rights such as copyrights, patents, designs, trademarks, geographical indications, etc. the legislations which directly deal with or are concerned with the intellectual property rights in handloom sectors are the Geographical Indications of Goods (Registration and Protection) Act, 1999 and the Designs Act, 2000.
The Geographical Indications of Goods (Registration & Protection) Act, 1999:
This enactment was specifically intended to protect the interests of the producers of goods such as agricultural goods, natural goods or manufactured goods, handicrafts,s or goods of industry. The act provides for the exclusion of unauthorized persons from misusing geographical indications. This is mainly done to protect the consumers from deceptive goods and increase the prosperity of the producers of these goods and promote goods bearing Indian geographical indications in the international market. Unless a product is conferred geographical indication in the country of origin, the same cannot be honored as such in the other country as mandated by the TRIPS agreement. The grant of GIs to a product showcases information connected to the source of its production and other qualities such as the quality of the product and its peculiarity to the locality of the region. GIs were conferred upon many textile and handloom traditions in India such as ‘Pochampalli Ikat’, ‘Chanderi Sarees’, ‘Solapur Chaddar’, ‘Mysore Silk’, ‘Kacheepuram Silk’, ‘Ilkal Sarees’, ‘Gadwal Sarees’ to name a few. These handloom traditions are specific to certain regions and have specialty and uniqueness in the terms of material used, designs, usage, and method of production. Granting GIs to the handlooms will act as a barrier against the ever-expanding power loom industry and will prevent the traditional weavers from being bulldozed by the MNC giants.
While granting GI, a considerable collective monopoly is conferred upon the weavers or persons engaged in the production of the handlooms. It is usually in the form of the clusters or cooperatives of the weavers, for the majority of weavers the handloom production is a family cottage industry. Though the GIs may provide any economic opportunity for the weavers to protect their handloom protection various difficulties can be observed in the regime of GIs. Due to the high nature of decentralization which can be seen in the handloom sector-major economic dividend cannot be achieved since the highly decentralized units cannot grow or evolve to the economies of scale. In the given situation the middlemen, the trader is in a better position to exploit the GI for economic gain. Grant of the GI presupposes that there is collective action amongst the weavers about the know-how, intricacies of business, and as well as the relation between the locality and the product. However, the legal procedure for obtaining GI and the problems faced afterward often act as obstructions in the growth of the handloom sector. The process of obtaining GI is highly cumbersome involving bulky paperwork, time, and cost constraints. There are certain problems about the collective action of the weavers such as the sharing of the registration costs, uncertainty regarding the grant of GI, and its enforcement after the grant of GI. Further, there may be certain members of the handloom operators who may not be interested and continuing the tradition of weaving and any deviation by him in the style and quality may put the reputation of the property at stake and it can also act detrimentally against the persons who are actively involved in the business. But despite the disadvantages arising the GI are the only effective IPR protection that is currently available to the handloom weavers in the country.
The Designs Act, 2000:
This enactment was enacted to protect the intellectual property right of the original design for a period of ten years or whatever further period is extendable. The purpose behind the enactment is to cause benefit to the person for his research and labour put in by him to evolve the new and the original design. The articles under this enactment means any manufactured article which is artificial or party artificial or party manufactured. This enactment defines Design as only the features of shape, configuration, pattern ornament or composition of lines or colors applied to any article whether in 2-D or 3-D or in both forms by any industrial process or means and which in the finished product should visually appeal to the eye and solely judged by the eye. The act stipulates the conditions for the registrability of a design and lays down that a design in order to be registered should be new or original and should not have been previously published in India. It should have been invented for the first time or it should not have been reproduced by anyone before. The design in order to be registered should be applied to a particular article or incorporated in a particular article. The design intended to be registered should have visual appeal and should be capable of solely judged by eye. According to the act, the author of the design or any person who acquires the design or the right to apply the design to the article can apply for the registration of design. The exclusive right conferred on design is popularly known as the copyright in design and it is different from the copyrights available for the artistic and literary works under the Copyrights Act. Once a design is registered the registered proprietor shall have the copyright in design for a period of 10 years from the date of registration and the same can be extended for further period of 5 years i.e. in toto the protection can be offered for a total period of 15 years. The registered proprietor has the right to protect the design from piracy and in the event of piracy the offender can be imprisoned and the registered proprietor shall be entitled to monetary compensation. Many of the leading apparel designers in India in the recent times had resorted to registering their apparel designs in order to seek protection under the IPR regime. But, the traditional handloom weavers are not at all aware of such legal protection available to them. Even if they apply for the protection of their designs under the Designs Act, the law provides little protection as it itself suffers from many defects and lacunae.
The very condition of the registrability of designs is too unreasonable and practically does not confer any protection to the handloom weaver. The stipulation that the design should be new or original and should not have been published prior in India spells doom for the IPR rights of the weavers as we knew that many of the designs woven by the handloom weavers are traditional and had been passed down through generations so the concept of the novelty of design doesn’t arise at this instance. Moreover, the design of the handloom textile is often repeated in various forms and colors Therefore, the designs created by them do not come under the category of registerable design and they are deprived of the protection which they duly require. The condition that the design if published prior to registration cannot be registered is also of no use to the handloom weavers in the remote localities, for instance, if a city-based designer goes to a remote corner of the country and finds a design used by the handloom weavers of that locality then he can come to the city and get the same design registered to project the same as the new design and ultimately knocking off something which does not belong to him. The another condition that the design should be solely be judged by eye and visual appeal also is of no use because the designs of the handloom textile may be unique even at the microscopic level and at the outset, two handlooms woven cloth may seem similar but at the basic level or at the minutest level they may be different is design. This causes another impediment in providing protection to the IPR of the handloom weavers. Lastly, the protection under the Designs Act can be provided only to the single registered proprietor whereas, the handloom sector is a joint collaborative activity and it involves the whole guild of the weavers and community members therefore, even if they want to register their design only one of them can do so thereby depriving the other rightful proprietors of their right.
From the above, we can observe that the legislation dealing with the exclusive protection to the traditional handloom weavers is very scarce in India. Despite the growing and ever-expanding economy there still are lacunae in the number of sufficient and wholesome protection available to the handloom textiles. The two enactments do not directly deal with the handloom textiles and provide only incidental protection. Due to this situation, the handloom weavers are not getting their due protection to their intellectual property in the current IPR regime in India. The laws are too technical and cumbersome and have many exceptions which prohibit the weavers from approaching the authorities to seek protection. What is currently needed in a country like India which is having a rich handloom tradition is comprehensive, exclusive, and protective legislation for the handloom weavers and their products. If it is done then the handloom weavers will at least stand a chance to protect their products and compete in the market or else the current regime will spell doom for this traditional craft in the days to come.
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