Surviving in a globalizing world
APARNA BHAGIRATHY and NIRMAL SENGUPTA
THE World Bank estimates that two-thirds of the world’s population cannot survive without foods provided through indigenous knowledge of plants, animals, insects, microbes and farming systems. The World Health Organization informs that up to 80% of the world’s population depends on traditional medicine for its primary health needs. No international organization has brought out, as yet, the importance of crafts in the livelihoods of poor people.
We know that in India the crafts sector comes second in employment generation, outranked only by agriculture. Led by such facts, crafts are usually viewed as relics of the past, still existing only to cater to the livelihoods of the poorer sections. The promotional activities in this sector have been directed towards decorative production or for tourist attraction. People like Kamaladevi Chattopadhyay put crafts on the map and gave the sector its prestige. Only in one area of policy – employment, income generation and poverty alleviation programmes – are crafts taken seriously. While agreeing that this emphasis is just, we must also pay attention to the other potentials of crafts.
The commercial potential of crafts in modern markets is immense. Crafts and craft based industries are India’s highest export earners. This is not surprising since the competitive edge in today’s globalized world is obtained primarily by capitalizing on specific skills rather than mere labour intensive production. Along with the skill content, the crafts sector also embodies valuable traditional knowledge that is rarely appreciated. No doubt, macro industries and hi-tech mechanized production are favoured over small-scale village industries and indigenous technologies. But with the development of new technologies and global markets, elements of traditional knowledge are also being appreciated as resources of actual or potential value.
A related question that arises in the context of value addition and technological development of crafts is regarding the role and recognition of rights of the craft persons. Global efforts for protection of intellectual property rights over such valuable knowledge are also on the rise. This is better known for indigenous genetic and medicinal knowledge, but on a lesser scale, is also present in craft. Like in the case of biodiversity and folk medicine, consolidation of commercial potential of crafts in a globalizing world has two dimensions: (a) creation of value through technology improvement and (b) sharing of the benefits by means of intellectual property protection. This article discusses these two issues, indicating some of the support measures that are necessary for reaping the commercial potential of crafts in an increasingly globalized world.
Some of these may appear as largely export oriented measures which, one may feel, need not be the primary purpose for the production of crafts. But this is no longer true, for globalization has brought with it more competition. Even if export is not the purpose of production, crafts still have to be export worthy to survive. In the WTO regime the distinction between domestic and export markets is becoming increasingly vague. In the domestic market itself, many crafts will have to compete with freely imported foreign goods, just as much as they have to in any foreign market. So, even if the primary purpose of craft development is poverty alleviation, the programmes have to take into account this globalized feature of markets.
Every area, every community has a different tradition, a different need and a different capacity. In the past, the craft community was linked to a consumer community that was close by, and locally accessible materials were used to cater to the local demand for products. Globalization has changed the need for localized activities. The value of crafts must be perceived in the light of new potential uses in these changing contexts. But before we enter into a discussion about value creation, from a commercial perspective we must take note of the significance of crafts in culture and religion.
Many craft items have both use value and cultural value. Market, or globalization in any form, may come into conflict with the cultural standards. Neglect of the intrinsic and inherent value to owners/artisans resulted in severe discontent which, of course, found expression only in those countries where rights of crafts-people are recognized. The nature of debates over the use of some Australian aboriginal designs that were considered as sacred, outside the traditional context, without gaining prior consent from the concerned community may be appraised from the following cases.
As early as in 1974, reproduction of a painting by Bulun Bulun on T-shirts was challenged as a copyright violation under the breach of the Trade Practices Act of Australia. The court granted injunctions and the dispute was settled for the sum of A$150,000. The landmark judgment extended the copyright law for the protection of community rights of the indigenous Australians in artistic creations. Bulun Bulun admitted that he owed a fiduciary duty to the traditional owners to preserve the knowledge by guarding against infringements of copyright in the painting. If he did not, the custodians had rights to compel him to preserve the integrity of the community’s culture and ritual knowledge.
In 1991, the Dolina Fashion Group was accused of copying an aboriginal painting onto fashion dresses. This case was settled out of court and the remaining stock destroyed. Yumbulul alleged that no permission had been granted to reproduce the totem pole, ‘Morning Star’, onto the $10 bank notes. Action against the Reserve Bank was settled by agreement. There are numerous such designs/motifs specific to communities, such as in the North East region of India that are not open to use by non-members or outsiders of the community. Their valuation must not be made in market prices.
Commercial value of knowledge and skill is related to its application and market potential. Value may be enhanced either through an improvement in technology and/or by linking the production to the market requirements through efforts to market the product. There is no single model applicable for all crafts. The processing and manufacturing of craft products like leather goods evolved over centuries, responding to local needs, using locally available materials and creating local variations. The markets were typically small and sharing of knowledge and techniques limited in the absence of strong links with larger, modern markets. The traditional communities preserving and practising the techniques were unfamiliar with the methods of commercialization of ethnic products in relation to the tastes and preferences of the modern market. Trade was not global, designs were static and restricted to the local market.
Modern markets are just the reverse. These are very dynamic and the demand for ethnic leather products temporal. In complete contrast is the textiles sector that has been extremely dynamic and globally linked over centuries. In world textile trade, India was once a world leader. Techniques that originated in India are now widely found in other parts of the world. In domestic demand and exchange of technological knowledge, the textile sector has remained vibrant. Technology upgradation and development need to be based on an understanding of the current position and requirements of the sector.
The leather technology upgradation mission of the Central Leather Research Institute synergised the traditional wisdom of the leather artisans with relevant modern science and technology and industry requirements. The problem was in linking the production of leather products to the requirements of the modern market. The development and marketing of the Kolhapuri footwear, an ethnic product, is an interesting example. The main problem with the Kolhapuri footwear is the lack of standardization in quality. This is due to a mismatch in the material and the variations in size. On analysis of the conventional practices, it was found that it was the practice of having to first wet the leather and consequently wait for it to dry that resulted in lower productivity.
As a first step it was demonstrated that this process was actually not required and doing away with it by procuring better quality leather would automatically result in higher productivity. Pertaining to the problem of size variations, standard size lasts were designed with computer-aided methods and templates for the bottom patterns cut out from metal sheets and distributed to the artisans. With support from NGOs, the required market links were also established.
A question that is frequently asked is, ‘Why do craftspeople with centuries of skilled tradition need outside intervention at all?’ Tradition must be a springboard, not a cage; and if craft is to be utility based and economically viable, it cannot be static. Crafts are constantly evolving, but they must also respond to changes in markets, consumer lifestyles, fashion and usage. In responding to these changes in markets, lifestyles and usage, it is the role of designers and other agencies that serve as mediators that assumes significance in sensitively interpreting these changes to the craftspeople.
Craftspeople cannot afford to keep samples and have rarely seen what their forefathers made. The value of crafts may be enhanced by incorporating modern techniques where suitable, after a careful analysis of the processes involved and the requirements of the markets. In some cases even modern techniques are not required – forgotten old techniques may need to be revived. But again, this is an area where outside intervention is necessary.
Following a ban by the European Union on imports of products using Azo dyes, the potential for using natural dyes in a number of export earning sectors is immense. One of these is the large Indian carpet exporting sector. Use of natural dyes is an old technique but almost forgotten. An NGO, the Society for Employment Welfare and Agricultural Knowledge (SEWAK), engaged in a project for reviving traditional carpet weaving among the Bhotia community in the Kumaon region of Uttar Pradesh is trying to revive use of natural dyes. It finds that the price of these natural carpets are 300 per cent higher than the synthetic ones today. The project that started in 1996 with two families now involves more than fifty families.
In the globally linked textiles sector, the technology upgradation programme of the government is one of mindless imitation of technology prevalent elsewhere, without paying attention to the requirements of the processes in the sector. As a contrast, we will cite here some private initiatives directed to use traditional knowledge of craftsmen. There is an old proverb among the artisans claiming that the quality of the fibres in the cotton bud is far superior to those in any other stage of subsequent processing. The group investigated and came to believe that there is some truth in the saying. The spinning mills in the five largest cotton producing states are able to absorb only half of what is produced. Cotton is transported in bales to the mills for the production of yarn. A careful study of the process revealed that cotton was transported in bales in the past only for the purpose of ease of transport, for it had to be shipped all the way to England.
The AU-PPST group decided to use the folk knowledge of the cotton craftsmen as the prior art for technology development.1 By now the group has developed a machine building on this basic fact. The processing is initiated at the seed level itself, thereby minimizing the damage and cost due to baling and transportation. Further, since the quality of the cotton at the start is also higher, a much simpler process is sufficient. If the machine is deployed in the five largest cotton producing states and the yarn produced at the place where the cotton is grown, instead of having to export it to other states, it is estimated that the returns are likely to be much higher. This example highlights the importance of a careful study of the current technology and identifying the requirements of the sector before adopting or applying new technology. The needs of this sector were of localizing the technology, in sharp contrast to the needs of the leather sector.
Will the benefits from such technological developments and additional value generated reach the craft persons and artisans? Is there a mechanism to ensure that the benefits are transferred to them? In the seminar on traditional knowledge,2 Deborah Thyagarajan exposed our indifference by describing an incident. Art prospectors popularize Indian designs with the support of craft organizations. In one such programme at the Delhi Craft Museum, an artist from Madhubani demonstrated the techniques of Madhubani paintings. A French designer purchased the demonstration piece at a small price, which she subsequently used in one of her designs in her country. As acknowledgement of the original contribution by the Madhubani artist, she sent a cheque of above Rs 100,000 back to the artist. On further usage of the design, she sent an additional amount of Rs 250,000.
This is something of a precedent in our country, where it is usually assumed that designs are common domain for everyone and imitation is rampant. Not many may feel the necessity or the obligation to pay for using someone else’s design for commercial exploitation. In the process the design is made cheap, and everybody loses.
Consequent upon the long history of protection of intellectual property rights, in Australia a substantial share of fund goes to the custodians. The total value of the aboriginal art market in Australia is around A$200 million per year. Half of the sales are related to the tourism market and of the total aboriginal art trade, A$50 million is estimated to reach the aboriginal producers directly.
In the U.S., a 1935 Act adopted criminal penalties for selling goods with misrepresentations – i.e. when they misled people into believing that they were (American) Indian produced. Although this law was in effect for many years, it provided no meaningful deterrent to those who misrepresented imitation arts and crafts as being (American) Indian produced. In addition, it required ‘willful’ intent to prove a violation, and there was very little enforcement. In response to growing sales of products misrepresented or erroneously represented, in the billion dollar U.S. indigenous arts and crafts market, the Congress passed an act, essentially a truth-in-advertising law designed to prevent marketing products as ‘Indian made’ when the products are in fact, not made by (American) Indians as defined by the Act.
India has introduced and modified its IPR laws to take care of traditional knowledge – largely biodiversity and medicinal knowledge. Crafts have not been given much consideration. We will discuss what protective provisions exist or are needed for crafts. In extending IPR protection to the crafts sector, several legal and operational issues arise. Identification of the craft sectors for protection, documentation for creating a record of rights, improvement so as to conform to the requirements of IPR laws, comparing the existing customary laws, protocol regarding access and use and transfer of folklore are some of the issues under discussion.3
Even the terminology is open to many explanations: Crafts are taken to include handlooms, handicrafts and other rural based cottage industries. What items can be given intellectual protection? The ‘indigenous’ or ‘local’ parts alone qualify for IPR protection. Indigenous knowledge (IK) not only refers to the knowledge of indigenous peoples, but also to that of any other defined community. The connotations vary across regions. Often, crafts are subsumed under the larger category of folklore. For the purposes of the World Intellectual Property Organization (WIPO) activities, expressions of folklore include handicrafts and other tangible cultural expressions. WIPO defines ‘tangible expressions’ to include ‘drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewellery, basket weaving, needlework, textiles, carpets, costumes, musical instruments, architectural forms.’
Existing international provisions include several international agreements that have been formed for the protection of folklore and rights of the holders of expressions of folklore. An Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore was established under WIPO to specifically consider the emerging issues of intellectual property protection pertaining to the three themes. The Tunis Model Law on Copyright for Developing Countries (1976) is an earlier effort towards protection of works of folklore. The Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions were adopted in 1982 under the auspices of WIPO and the UNESCO.
Several countries have used the model provisions as a basis for national legal regimes for the protection of folklore. However, it is recognized that the scope and impact of the model provisions is limited and it has been suggested that they be updated. There exist other similar initiatives to extend legal protection of folklore. However, these are often limited in scope and impact. There is no internationally binding legal agreement for the protection of crafts and the rights of the artisans. Where the existing mechanisms can be interpreted in a manner such that legal protection is extended to crafts, there is absence of an enforcement mechanism.
With the standardization of IPR regimes across countries through the Agreement on Trade Related Intellectual Property Rights (TRIPS), there has been discussion on possibilities for extending the existing IPR provisions for the protection of crafts. Some that may be applicable are industrial designs, geographic appellations of origin, copyrights and trademarks. Some of the state governments are already involved in extending protection to some traditional craft products. The Geographical Indications Act was passed in 1999; however, in the absence of Rules for the Act, there is still uncertainty regarding the procedure through which such protection may be claimed and used.
Geographical Indications is a commercial right that can be used to enhance the ethnic value of a craft product or design. It does not protect the knowledge or the underlying technology but it does prevent the use of the name in a way that misleads people about the true geographic origin of the product. The Tamil Nadu State Government Department for Handlooms and Textiles has identified some traditional craft products and studied their characteristics and techniques of production in detail so as to determine if they can qualify for GI protection. One such product is the Kancheepuram saree.
One of the basic requirements for claiming protection for traditional designs under industrial designs is the documentation of the tradition-based designs in conformity with the requirements of industrial designs, along with a classification of the designs. It is also important that the industrial property offices in different countries recognize such documents as a searchable database in the process of examination of applications for industrial design titles. The Government of India has undertaken such an exercise for medicinal plants in India – The Traditional Knowledge Digital Library is expected to be completed soon. A similar exercise for designs or natural dyes may also be considered. These are already well documented independently across institutes and organizations in the country.
There also exist alternatives outside the conventional IPR laws for the protection of collective rights for works of art are often the product of collective efforts. Conventional IPR mechanisms have mostly been used for protection of individual or private rights. Collective rights organizations such as artist unions or performing rights societies provide for the recognition of the contribution of collective efforts. Neighbouring rights is a specific legal provision that recognizes the efforts of the several different contributors to a work of art or performance and guarantees certain rights to them. In France, these rights were introduced in 1985 to recognize the moral and remunerative rights of performing artists and the rights of record producers to authorize or forbid reproduction of the records.
The need for intellectual property protection of crafts arises in the context of (a) prevention of misappropriation or unauthorized use of traditional crafts and designs, (b) ensuring sharing of benefits on commercialization of the crafts and (c) for recognition of collective rights of the holders of expressions of folklore or crafts persons. As yet, no thought has gone into the two later issues: benefit distribution and customary rights. In a country where we are just becoming aware of acknowledging intellectual knowledge and rights over designs, little advance is expected on these matters. Here, however, we may cite the Australian experience as an example. The Australian courts have approached such claims with sensitivity to customary laws, traditions and practices of the indigenous communities in Australia. The court acknowledged cultural sensitivity and awarded exemplary damages for culturally based harm. To enable aboriginal clans to take account of collective ownership of the designs, damages awarded were lump sum. Additional damages were awarded for humiliation or insulting behaviour to a particular cultural group.
In approaching the questions of creating additional value in crafts through technology improvement and sharing of benefits through IPR protection, there is utmost need for sensitivity to the position and requirements of each of the crafts sectors and the rights of craft persons. For technology intervention and laws for benefit sharing to be truly beneficial to the artisans and crafts persons, these have to be introduced by thinking for them and understanding their traditional and cultural contexts. Recognition of their contribution and their rights and a mechanism for actual distribution of benefits will go a long way in not only reaping the commercial potential of crafts but also in helping the craft persons to sustain their occupations and enjoy a position of prestige in today’s globalized markets.
1. As described by L. Kannan of AU-PPST at the Workshop on Traditional Knowledge – Appreciation for Policy Making, 25-26 March 2002, IIC, New Delhi.
2. Roundtable on Indigenous (Traditional) Knowledge held on 28 August 2001, at the Madras Institute of Development Studies, Chennai.
3. UNCTAD-background note on Systems and National Experiences for Protecting Traditional Knowledge, Innovations and Practices.