Abstract
Darjeeling tea, Banarasi saree, Bikaneri namkeen, Mysore silk and Lucknow chikan are just some of the products that are linked to a particular geography with reputation that went beyond their place of production. There are hundreds of other products with geographical linkages that have commanded reputation for centuries and within and outside India. Yet India refrained from giving legal recognition to the products that India had with some geographical linkage, till the time it was forced to do so by outside forces.
During Uruguay Round of trade negations, India was vehemently opposed to inclusion of intellectual property rights (IPRs) as a subject that was being considered for inclusion into the global framework for trade rules and institutions. As geographical indication (GI) was included among the IPRs that were being negotiated, India, in principle, was also opposed to the inclusion of GI in the trade framework, yet it never articulated any specific objection to GI as such. Today, India has about 300 odd registered GIs. India is also at the forefront of broadening the scope of GI at the WTO so that many of its GIs get global protection, while it continues to oppose expanding the scope of other IPR like patents. Given this context, the book is an important addition to understand the various dimensions of GI protection in India.
Spread over 10 chapters, the book discusses different aspects of GI in India. The first chapter describes the global developments in the light of globalization that led to the adoption of GI law in India. While the IPR framework of the WTO as enshrined in the TRIPs Agreement played a direct role as India was legally bound to protect the GIs of foreign countries, it also described other related developments that pushed India towards adoption of a comprehensive GI legislation. While TRIPs mandate stronger protection of GI only in the case of wines and spirits, even weaker protection that it grants for other products could be of some help. In this context, India found that some of its products that have global reputation were subject to usurpation in foreign countries. India found that the quantity of Darjeeling tea traded in the global market was about four times the total production of tea in Darjeeling. Obviously, some countries were passing off their tea as Darjeeling tea. Another case was that of Basmati rice that has traditionally been grown in India and Pakistan. However, not only some foreign parties were trying to pass off their rice as basmati, there was also an attempt to get patent on Basmati rice. Thwarting such attempts needed that India had documentary evidence that such products have been there in India for a long time and also had special reputation. It was realized that a GI law can give protection to its traditional knowledge and reputation of their products against usurpation outside India as well.
The next chapter is on comparison of the GI regime of India with that of France and Europe. France has been chosen not just because the author belongs to that country but also because it is the country where the very concept of GI, of course in a variant of its current version, originated. European Union also has reasonably long experience of GI, especially in the context of a supra-national jurisdiction since 1958 when the Lisbon Agreement was signed. The concepts of Appellations of Origin Certification (AOC) as has been prevailing in France and protected designation of origin (PDO) and protected geographical indication (PGI) as adopted in Europe. In the case of PDO, the product in question is produced in the indicated geographical region in its entirety, but in PGI, the requirement is much less as the inputs used might come from outside.
The author notes that even before the GI Act was adopted, GI could be protected in India through the Trade and Merchandise Act (dealing with trademark) as well as the Law of Tort, of course with some problems and difficulties. What, however, has been missed is the fact that even the Monopolies and Restrictive Trade Practices Act, 1969, and the Consumer Protection Act, 1986, could also provide protection against misuse of GI through their provisions on unfair trade practices. This is important, not only because in France, GI originated essentially to protect consumer rights rather than protection of IPR, but also the fact that the Consumer Protection Act, 1986, can be used even now if a consumer is a victim of passing off involving a GI.
The Geographical Indications of Goods (Registration and Protection) Act, 1999, that was passed on 30 December 1999 (entered into force on 15 September 2003) can be termed a sui generis law. The Act adopts a definition of GI that is sufficiently broad and could include French AOC or European PDO and PGI. Indian law, however, did not include clear criteria on source of inputs/raw materials. The level of protection accorded by the Indian law is also weaker than that of France and Europe. Much of the provisions in the Indian law are guided by the TRIPs provisions and language.
An overwhelming majority of GIs granted in India are for non-agricultural products. While there are products like Darjeeling tea or Malabar pepper that could qualify even for PDO, most of the Indian GI could be registered only because it did not have strong criteria for source of product. It is interesting to note that when India applied for registration of Darjeeling tea in Europe, it applied for PGI rather than PDO though it could very well qualify for PDO. Registration documentation of GI, thus, avoided discussing origin of the raw materials used in manufacturing of handicraft products. The author noted with surprise that even in case of Mysore silk this aspect is not described. While it describes the specificity of zari to be used, it is silent on the kind of silk to be used, despite the fact that the reputation of the product has as much to do with silk grown in Mysore region since a long time.
But what goes as Mysore silk today is sarees made in mechanized loom and the yarn may not come from Mysore. Interestingly, Kanchipuram Silk sarees are woven in handloom using Mysore silk produced in Karnataka though the author describes it to be coming from Gujarat. The zari used in Kanchipuram of course comes from Gujarat. In case of muga silk, of course, both silk yarns produced in Assam and the silk fabric woven there is registered. However, the weavers are not happy with this as this might make things difficult for them. The traditional weavers of muga silk are using other silk as well as muga is very expensive and many buyers cannot afford the item if it is made purely from muga silk. Thus, even if it is not mandatory to specify raw materials, some do specify them, while others avoid mentioning it probably as a trade-off to keep interests of the weavers in mind. The author, however, has not noted this aspect. The absence of natural factors in non-agricultural products, as against the tradition in France, might be due to the fact that the basic objective of the law is to protect traditional knowledge and interests of the artisans rather than to protect the interest of consumers as was the case in France to start with.
While natural factors are taken into consideration in granting GI to agricultural products, historical factors seem to play a more important role. With the glaring exception of Darjeeling tea, for most other products, the primary objective seems to protect plant varieties. Hence, species endemic to a particular region is given GI with the name of the region linked to it. One difficulty with GI is the demarcation of geographical boundaries as was the case with Basmati rice as the cultivation of this spread to new areas. While Madhya Pradesh has been excluded from granting Basmati GI as the state has been cultivating it in recent years, some states got their regions included even though they might not be the place where it has been grown traditionally. Another issue is whether only traditional varieties or even evolved varieties could be recognized. India, of course, recognized both traditional and a few evolved varieties.
Demarcation of geographical boundary is often more pronounced in non-agricultural goods. The author has noted the case of Kanchipuram sarees where the weavers actually came from another place in another state called Andhra Pradesh. But the GI has been granted to Kanchipuram only. However, this is reported to be the case for Banarasi sarees also as they migrated from somewhere in Gujarat centuries ago. However, as in both the cases, there is no weaver left in the place of origin, there was no claim from the place origin. However, things were different for Baluchari sarees. While it originated in a place in Murshidabad District of West Bengal, currently, Bishnupur town in Bankura district is the centre of Baluchari production. However, a few weavers in Murshidabad also produce Baluchari sarees. Hence, both the place of origin and the place of current production centre were given recognition. This also shows the importance given to the artisans as the reservoir of the knowledge rather than the geographical factor. Such information was probably not available when she conducted her study. Place of origin has also been a bone of contention in the case of rasogolla. Both West Bengal and Odisha came to claim for its origin. West Bengal already got the GI for Banglar Rasogolla (Rasogolla of Bengal), probably because it did not claim GI for rasogolla as such and the rasogolla produced in Odisha is quite different from the product for which West Bengal got its GI. Odisha might also get a separate GI for Odisha Rasogolla.
One interesting aspect of GI in India, as discussed in details by the author, is the role of state. Both central government agencies as well as state government agencies have been in the forefront of documenting and applying for GI registration. This might have been a reason for ease of getting GI registration as well as high success rate. However, noting the case of Basmati rice, the author argued that being a government agency as the applicant does not guarantee that GI will be granted. In the Basmati case, it was Agricultural and Processed Food Export Development Agency, a central government agency that applied for the GI. However, the GI was initially denied due to difficulty in demarcating geographical boundary. The GI was ultimately granted only after it was ordered by the appellate authority.
State government agencies being the overwhelming majority of applicants, intra-state dispute has not been an issue as all such agencies tried to accommodate almost all claims to the proposed GI. However, disputes arose, as in the case of rasogolla, when different states put forth their claims.
The state agencies, rather than an association of producers as in the case of Europe and France, being the applicants in general, might have led to the situation where the GI has been registered, but there are hardly authorized users of those GIs. In some cases, most producers do not even know that such a thing exists. As a result, the producers have hardly benefitted from the granting of GI. The states, on the other hand, have been quite enthusiastic about getting new products registered, they have hardly shown any interest in promoting such products or building capacity of the producers to become registered user and draw benefits from it. As a result, apart from Darjeeling tea, there is hardly any example to show that the producers have benefitted.
A few things are noteworthy in case of Darjeeling tea. The producers here are reasonably big though they may not be big business houses compared to the most other producers who are poor artisans or farmers. Darjeeling tea commands substantial global reputation which is not the case with other products. Darjeeling tea is also registered in several jurisdictions of the world which again is not the case with other products. Natural factor contributing to the special characteristics of the product is most pronounced in the case of Darjeeling tea, undisputed and scientifically proven compared to any other GI registered product in India.
The state can also have justification from the state of affairs involving GI registrations that could not bring much of benefits to the producers from the fact that they have been able to create enough documentary evidence for the existing traditional knowledge, and hence, it will not be possible to usurp them or use such knowledge to create their own intellectual property depriving the communities that have been preserving such knowledge. As for the apparent contradiction that India is opposed to the expansion of the scope of IPR or enhancing its level of protection, especially in the case of patents, at the same time going full steam with GI, which even the author did not identify the real reason is that, in case of GI, the relevant knowledge is not monopolized as in the case of patents.
The GI regime in India is quite dynamic and new experiences and experiments are being created very fast. As a result, lot of things have happened since the book was written. Obviously, all of those could not be captured in the book. Some of the chapters in the book are quite small and could have been better if a few of them were clubbed which would have been more helpful for analytical purposes as well. Nevertheless, the book is quite comprehensive and possibly the most important book that has been written on the experience of GI in India. No serious researcher working on GI issues can possibly avoid reading it. But it is also useful for general readers with an interest in GI and India’s traditional knowledge in general and handicrafts in particular.