A lot has been said about Geographical Indications (GIs) and there effectiveness in securing community rights, some may call them Brand rights, in a community’s collective heritage and to protect consumer interests as well. But do GIs accrue any benefit or recognition to an individual from the community, who has made a particularly notable improvement to an existing product, say traditional handicrafts, on which GIs exist? 

In other words, do GIs preclude simultaneous existence of individual Intellectual Property Rights in the form of Copyrights or Industrial Designs, in traditional handicrafts? The analysis which shall follow is based on excerpts from my third semester paper on protection of traditional handicrafts. The fundamental premise on the basis of which I worked to build a logical structure was that there exists a difference between “industrial handicrafts” and “traditional handicrafts” (This difference may appear hackneyed to most). Until the promulgation of the Geographical Indications of Goods (Registration and Protection) Act, 1999, the working definition for “handicrafts” in India was the one prescribed by Task Force on Handicrafts in 1989 as:

“Handicrafts are items made by hand, often with the use of simple tools, and are generally artistic and / or traditional in nature. They include objects of utility and objects of decoration.”

Subsequently, “traditional handicrafts” were sought to be protected by way of Geographical Indications (GIs) under national laws as provided by TRIPS agreement. Atleast, as far as I understand, nowhere does the GI Act restrict an authorised user from seeking simultaneous protection under Designs Act, 2000 or Copyright Act, 1957. Following this conclusion, one had to interpret the Designs Act and Copyright Act together. Both “industrial handicrafts” and “traditional handicrafts” fall within the scope of “article” as defined under s.2(a) of Designs Act. We know that the design right under s.2(c) of Designs Act is granted only to the design of an object and not the object itself. But then what constitutes a “design” under Designs Act would be the next question. s.2 (d) of the Designs Act defines “design” as:

“…… only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the final article appeal to and are judged solely by the eye; but does not include ………………….any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.”

The first part of the definition may bring only “industrial handicrafts” within its satellite meanings, but not “traditional handicrafts”, since the definition refers to an “industrial process”. Again, what constitutes an “industrial process” is not clear. Does it refer to any process in an industry? If so will traditional handicrafts fall within the definition of an “industry”? Yet for the sake of the argument, I proceeded with the assumption that traditional handicrafts cannot be accommodated in the above definition.

It has to be borne that the Designs Act grants design right only to non-functional aspects of the design. So if a particular design is predominantly functional, it cannot qualify for a design right (Amp. v. Utilux [1972] RPC 103 (HL)). If it has both functional and aesthetic aspects to it, then the latter may be granted a design right. Further, moving to the exception provided under the aforesaid section, s.2(c) of the Copyright Act, 1957 defines “Artistic Works” to mean:

(i) A painting, a sculpture, a drawing (including a diagram, map, chart or plan) on engraving or a photograph, whether or not such work possesses artistic quality,
(ii) A work of architecture
(iii) Any other work of artistic craftsmanship

In George Hensher v. Restawile Upholstery (Lancs), the Court felt that:

the rationale behind bestowing copyright on a work of artistic craftsmanship is to protect the man who puts on to the market articles which are the products of his own handicraft, from reproduction whether by hand, machine or otherwise”.

Accordingly, it was deemed that “artistic craftsmanship” is a composite phrase and may be considered to be “Work of Art”. However, a distinction was sought to be drawn between “artistic work of craftsmanship” and “work of artistic craftsmanship” and “Work of Art” was accordingly imputed the latter meaning. This means that artistic quality of the work is irrelevant and so s.2(c) of the Copyright Act includes “industrial handicrafts”. I am not sure of this conclusion since the general practice thus far has been to grant registration to handicraft designs under the Designs Act.

If “Work of Art” includes an object and/or the features of an object, it means that such object and its features are subject-matter of copyrights and so they cannot be registered under the Designs Act. If it is argued that industrial handicrafts may have utility or “functional features” in addition to aesthetic features and so such aesthetic features may alone be given design registration, does it mean that functional features may be protected by Copyrights? 

On one hand, English Courts have held that the “functional features” of handicrafts are not protected by copyrights since; copyrights protect only the expression of an idea and not the idea or the rationale behind the idea. On the other hand, a few Indian Courts have erroneously held that Copyright law is meant to protect “artistic works” which are “functional” in nature (Escorts Construction Equipment Pvt. Ltd. v. Action Construction Equipment Pvt. Ltd.)! This goes against the very grain of Copyright jurisprudence.

So, “artistic craftsmanship” under s. 2(c) of the Copyright Act includes “industrial handicrafts” and their non-functional features. But does it include “traditional handicrafts”? The answer is an emphatic no since; the greatest hurdle of all in obtaining a copyright in “traditional handicrafts” is to trace their authorship to one individual author’s originality and the imprint of his personality. Although originality has not been defined in the Copyright Act, since “traditional handicrafts” are acknowledged to be the products of a communal activity, no individual may lay sole claim over it. If one decides to grant copyrights under the Copyright Act to everyone in the community, then it would result in “Tragedy of Anti-Commons” as described by Michael Heller i.e. multiple owners would end up excluding each other of the ownership which would require every new user to obtain licenses from every owner making it exhorbitantly expensive. This means that “traditional handicrafts” are not subject-matter of protection under s. 2(c) of the Copyright Act, 1957.

The interesting conclusion which one reaches is that under s.2 (d) of the Designs Act, both “industrial handicrafts” and their designs are precluded from getting design rights since they are subject-matter of the Copyright Act; however, “traditional handicrafts” may qualify for protection under Designs Act since they are not eligible subject-matter under Copyright Act. This conclusion too does not hold water in the light of the provisions of s.4 of the Designs Act; s. 4 (b) of the Designs Act bars the grant of design rights to “traditional handicrafts” which already exist in public domain. Also, s.4(a) prohibits the registration of a design which is not “new” or “original”. Though “new” has not been defined, s. 2(g) of the Designs Act defines “original” in relation to a design as:

“….originating from the author of such design and includes the cases which though old in themselves yet are new in application”

So, though designs of “traditional handicrafts” do not enjoy protection under Designs Act, their “new use” may get design rights. This virtually leaves traditional designs wide open for exploitation. Summing up the deductions arrived at in the preceding sections:
  1. “Industrial Handicrafts” differ from “traditional handicrafts”, both of which appear to fall within the scope of s.2 (a) of the Designs Act.
  2. Since “industrial handicrafts” are subject-matter of s.2(c) of Copyright Act, they are not eligible for protection under s.2(d) of Designs Act. “Traditional handicrafts” may get design rights since they are not subject-matter of Copyright Act.
  3. However, s.4 (b) of Designs Act bars grant of design rights to “traditional handicrafts” since they already exist in public domain; but s.2(g) of Designs act grants design rights to any person for “new use” of traditional designs, to the prejudice of the indigenous groups
Considering all the aforementioned reasons, I concluded that creativity of an individual belonging to an indigenous group, in traditional handicrafts cannot be protected under Copyright Act, 1957 or the Designs Act, 2000. Subsequently, I corresponded with Mr.Dev Saif Gangjee, Research Associate at OIPRC and Lecturer at LSE, whose M.Phil thesis is a veritable mine of information for anyone who is interested in understanding the position of traditional handicrafts under TRIPS. He was patient enough to respond to my doubts and broadly concurred with my conclusions saying “GI system is inappropriate for highly innovative individuals”.

He also went on to state that such people had “the option of registering a design or obtaining copyright in their works if they are sufficiently creative and that all the GI system protects is the name/designation – it does not stop outsiders from copying the product itself”. He also opined that “Either a handicraft is conventionally ‘traditional’ and faithfully follows the pattern (in which case there may be limited space for originality and innovation) or it is based upon traditions but also innovates and departs from the pattern (in which case it could be the subject matter of mainstream IP protection)”.

My first contention would be how is one to judge what is “sufficiently creative” and this is a question which both Mr.Basheer and Ms.Yashasvini have dwelt at sufficient length in their earlier posts on the ECB case. Also, can such an innovation, which is based on tradition and yet departs from the pattern, continue to enjoy GI protection despite such departure from tradition? If the answer is ambiguous and unsatisfactory, and a proper way of rewarding individual creativity is not devised, GIs might just end up creating a rigid iron cage making traditional handicrafts stagnant. This would strengthen the arguments of those who believe that copying of traditional designs in new contexts might just help retain people’s interest in them and the culture which they represent. A regulated but unimaginative market is not exactly a proper substitute to a chaotic and lawless market. 

One could probably take a cue from the law of patents. When patents of innovation and addition may be granted on an existing patent, why should one deprive artists, who make modifications to existing forms of traditional art, from some form of protection? The concept of ancillary rights is not a new one, but its extension to traditional handicrafts has not been tested hitherto. 

Today, when India has a booming economy and is exploring various avenues of sustaining its pace, it is surprising that the potential of traditional handicrafts has not been fully appreciated. The craft or handicraft sector is the largest decentralised and unorganised sector of the Indian economy, and is among India’s largest foreign exchange earners. The number of people involved in the making of handicrafts is about twenty-three million making it the second largest employment sector, next only to agriculture. 

Besides, traditionally in India, cottage industries like handicrafts and handlooms have served to alleviate poverty by promoting rural entrepreneurship. The greatest advantage is that the craft sector contributes the least to cultural and social imbalance. A solution needs to be worked out before rapid mechanization in the manufacture of handicrafts slowly edges out traditional methods of making them.

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  1. Most of the Indian traditional handicraft industry is a group right and so is better to protect as GI’s and not by design or Copyrights. There would have to be too many design patents. I don’t know if copyright can be a group right. Even if that is so, there would be a time frame of protection which is not there in GI’s. So in comparision, although traditional handicrafts can be proteced by all 3 modes smultaneously, I think that GI’s would be most suitable and effective.

  2. Hi,
    Thanks for the comment. If copyrights were to be given as group rights, there is a possibility of “tragedy of anti-commons” as Michael Heller called it where one would have to go about taking permission/license from every copyright holder.

    That apart, the crux of the argument which i was trying to put forth is that GI as a group right is certainly beneficial when it comes to protecting traditional arts, but to encourage innovation within tradition and outside it, some kind of a system of incentives is necessary which does not defeat the purpose of GI and yet justifies its existence.

    Is there a possibility of such a right? i would be delighted to hear from you on this…..

    J.Sai Deepak.

  3. I, actually, would be grateful of some input myself because some artisans are already facing this kind of problem. They want to protect the traditional form (which can be done by GI)which are being copied by people at major cities and are meeting the customer needs due to easier access from cities as compared to remote areas. But these traditional artisans are also innovating new designs based on customer demand. I am unable to fanthom how these new innovations can be protected along with the traditional one.

  4. As rightly pointed out by Prof.Gangjee, GIs cannot protect you against copying the design; all they can do is prevent against use of the brand associated with the design which makes it imperative to look for a blend of both collective and individual rights. I shall go through relevant literature and get back to you if at all models exist

  5. Dear Nilanjana,
    My sincere apologies, i have been busy and will be busy for the next couple of weeks. Could you please give me some more time to respond to this query? Thanks for bearing with me.

    J.Sai Deepak Iyer.

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