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Introduction

Property has always fascinated human beings. Property is considered to be a person’s


proprietary right as opposed to his personal right. The right to property is an inalienable
‘natural right’ of the citizen, immune from interference by government or other individuals1.
Marxist analyses property as the key to the control of modern industrial society. It is not only
confined to ownership in ‘things’ but also to patents, copyrights etc which is the property of
the intellect2. By protecting Intellectual Property the legal framework provides an incentive
for creators to invest time and resources, to foster innovation and expand knowledge.

Concept of Intellectual Property

According to World Intellectual property Organization (WIPO), Intellectual Property


broadly means the legal rights, which results from intellectual activity in the industrial,
scientific, literary and artistic fields. It is in the nature of intangible, incorporeal property3.

Classification of Intellectual Property Rights

Traditionally it is divided into two branches: Copyright and Industrial Property. Later,
agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) which is one of
the agreements under World Trade Organization (WTO), 1994 however, classifies IPR under
seven heads. They are : (i) Copyright and related rights, (ii) Trademarks, (iii) Geographical
Indications, (iv) Industrial Designs, (v) Patents, (vi) Layout designs of integrated circuits &
(vii) Protection of undisclosed information including trade secrets.

Origin of Intellectual Property

The history of Intellectual Property is complex and fascinating. It started in 500 BC with
the monopolistic privileges which was condemned and led to the enactment of the Statute of
Monopolies in England in 1624. In seventeenth century in England, The Statute of Anne was
passed in 1709. In the eighteenth century, the House of Lords in case of Donaldson v.
Beckett4 1774 ruled that the author had the sole right of printing and publishing his books, but
once a book was published the rights in it were exclusively regulated by the statute. This

1
. Philosophy of Locke, W. Friedmann, Law in a Changing Society, 93 (2nd ed. 2011)
2
. id. at 94
3
. WIPO, Intellectual Property Reading Material, (1995).
4
. HL 22 (1774).
common law right in unpublished works lasted until the coming into force of Copyright Act,
1911, which abolished it and today in England copyright subsists solely by statute5.

Object of the Study

The purpose behind carrying out this work is to reflect the importance and significance
of Gamosa of Assam and its potentiality for getting GI as well as to give protection to the
innovative artistic handloom work of Hema Prabha Chutia. Apart from safeguarding the
cultural heritage of Assam and keeping the pride of Assamese people intact, the researcher
has realised the importance of individual knowledge and creativity.

The work of Mrs. Chutia has a unique feature along with its holistic essence. Mixing
culture with innovative thought and creating a beautifully artistic product is what prompts the
researcher to undertake such a challenge. Recognising her right and protecting her interest
through IPR is the sole object of the researcher.

Nature and Scope of the Study

The nature and scope of this research is to encourage innovative creation of intellectual
products and help the indigenous weavers and other handcrafters to develop a taste of artistic
and creative development of their cultural and traditional products. It shall also help the local
markets to flourish and help the consumers from not getting deceived of the originality and
quality of the product, which in return will help our state to preserve the reputation of our
indigenous product and help to expand its economy.

Research Questions

i. whether the work of Mrs Chutia is a product of handicraft?

ii. Whether her work falls under Section 2(c) i.e ‘artistic work’ of the Copyright Act,
1957?

iii. Whether her work is capable of IP protection or does it have a separate identity
under sui-generis?

iv. Whether Gamosa deserves GI protection?

5
. id. at 11.
v. Whether Gamosa falls under clause 24 of the Fourth Schedule to the Geographical
Indication of Goods (Protection and Registration) Rules, 2002?

vi. Does her work have a reflection of gamosa?

vii. Whether the punishment provided under IP laws are deterrent enough?

Research Methodology

In the present research, the statement of research questions clearly reveals that both
Doctrinal and Non-doctrinal approach is applied while carrying out the research work.
Researcher has followed a systematic and critical analysis of materials from both primary and
secondary sources.

Protection of Handloom under IP Regime with special reference to Gamosa of


Assam

Genesis of Handloom

The origin of art of weaving in India is shrouded in the mists of antiquity. Fragments of
woven cotton, bone needles and spindles have been discovered at Mohenjo-Daro and
Harappa of the Indus Valley Civilization. Even the Rig Veda (1500-1000 BC) refers to
golden woven fabric hiranyadrapi. Hazarat Khwaja Bahudin Nakshaband Bhokhari
Rahamtulla is credited with being the creator of the Nakshaband, design temple for weaving
that completely revolutionized the art of weaving6.

Handloom products are region specific and highly influenced by natural and human
factors attributed to the region or locality such as the skills of the weaver, process of weaving,
dyeing of the yarn and so on. Each region is known for its specific product. What is woven is
inseparable from where and how it is woven7.

Development of Handloom Sector in Assam

In Assam the weaving community consisted of wide range of ethnic groups reflecting
their caste and community identity in the weaving pattern, style and motif. It has been the

6
. Thirupathi Kandikonda & Anakam Sreenivas, Handloom Industry in India-an Overview, ISSN 2320-0685
(2017).
7
. Soumya Vinayan, Intellectual Property Rights and the Handloom Sector:Challenges in implementation of
Geographical Indications Act, 17 JIPR 58 (2012).
traditional occupation for women and also a source of livelihood for large section of rural
women in the industrially backward states of north east region of India.

Among the tribal society of Tripura no right of ritual is complete unless it is preceded by
a worship of Riha. In Assam, the hand woven gamosa which symbolises respect and honour
is used to welcome the guest on any occasion. The design which is weaved in the clothes has
a close relation with the culture, rituals and habits of that particular place and community.
The socio-cultural life of the communities is revealed significantly in their textiles8.

The traditional handloom fabrics of Assam, unfolds the creative genius of the local
weavers. Apart from cotton textiles, three varieties of silk, muga, pat and eri are produced in
Assam. Silk culture is a traditional cottage industry rooted in the life and culture of Assam. In
Mahabharata, Assam is called Suvarnakanakanan, which means silk producing province9.

Sualkuchi is the centre of silk handloom industry of Assam since seventeenth century.
The handloom fabrics produced in Assam is rich in quality and colour where textiles like
gamosa, barkapoor, khania kapoor, mekhela chador, riha and churia are produced by the
Assamese people. These textiles are made out of cotton, muga, eri and paat.

Significance of Gamosa

Above all the handlooms of Assam, ‘Gamosa’ is the symbol of Assamese culture. In
general ‘Gamosa’ has two meaning ‘ga’ means body and ‘mosa’ means to wipe. Thus, the
word gamosa in general means a towel which can be used in wiping10. Gamosa is also
regarded as a shawl, as it is worn with respect and also it has its relation to Bihu, the festival
of Assam. During the time of Bihu near and dear ones exchange ‘Phulam Gamosas’ which is
weaved newly in loom for all the members of the family as a symbol of love and respect. The
gamosa which is given as a token of love and respect is known as ‘Bihuwan’.

On the basis of its usage gamosa has different names, namely, phulam gamosa, uka
gamosa, borgamosa or tiyoni gamosa, tongali gamosa, ana-kota gamosa and gokhai gamosa.
As mentioned above, phulam gamosa is given out of respect which is also known to be

8
. R. Charavorty, et al, Sericulture and traditional craft of silk weaving in Assam, 9 IJTK 378-385 (2010).
9
Jayant Jain & Alok Ratan, Developing a conceptual model to sustain handloom silk industry at sualkuchi
Assam, India, 6 EJSD 432-422(2017).
10
Wikipedia, Gamosa, (Nov. 20, 2017, 6 p.m), https://en.wikipedia.org/wiki/Gamosa.
‘Bihuwan’. It is hung around neck at the time of praying in the prayer hall (namghar). It is
also taken as a shawl in the shoulder to signify its social status11.

Gamosa generally is made out of two coloured threads, they are red and white. There is a
reason behind using the red coloured thread in gamosa. After defeating the ‘Mughals’ and
‘Maan’ in the land of Assam, Assamese people celebrated with pomp and gaiety and used the
colour Red in ‘Gamosa’ which marks ‘Bravery’ and ‘Beauties’.

Thus, Gamosa has its origin from the days Assamese has its identity. A deep sense of
sentiment runs in the veins of Assamese people where gamosa represents each and every
individual of Assamese people and its culture. Gamosa is without question attached to the
region of Assam and to its people.

Threat of Gamosa

Gamosa which is considered to be the heart and soul of the Assamese identity have been
under consistent threat from the commercial influxes. Bihar is a State where record has been
found that it used to imitate gamosas by printing in power loom or in mills and flooded the
local markets of Assam in cheap prices. There was a protest from all the weavers of sualkuchi
who marched against the blocked print and poor quality silk from Benaras who flooded the
market imitating Assameses Mekhela Chadar. The outburst of the sualkuchi outburst was to
stop selling of important silk fabrics, which do not match with the silk produced in Assam.

Because of the cheap quality of handloom products including gamosas, people are often
deceived as to its originality putting the reputation of the State of Assam and people and its
culture at stake. As the GI tag ensures that none other than those registered as authorised
producers or at least those residing inside the geographic territory are allowed to use the
popular product name, the brand can be protected from cheap imitations.

State must take necessary action to stop such inflows and punish the offender for
deceiving people as to its originality. It is a form of property that every Assamese people hold
from birth till death. Thus, the need for GI on gamosa is essential as gamosa is facing an
identity crisis in view of a large scale sale of similar looking machine made textile from
outside the State12.

11
id
12
. Editorial, GI for Gamosa, The Assam Tribune, September 23, 2017.
Gamosa as a Potential GI under the GI Act, 1999

Gamosa a cultural heritage of Assam has its significance and importance to the people of
Assam from time immemorial. Apart from its utility it has a holistic and cultural significance
where during the era of Shrimanta Sankerdeva gamosa was very much relevant in Assam,
especially in Barpeta Satra, where gamosa is used to cover the Guru Achana.

Gamosa which is one kind of folklore of Assam has numerous stories related to it. Each
and every thread of gamosa has a tale to say; from its colour red to the pattern weaved. Thus,
gamosa is a valuable property of Assam which needs to be protected from unfair competition
and misuse of its product.

In the Geographical Indication of goods (Registration and Protection) Act, 1999, the term
‘geographical indication’ has been well defined under section 2 (1) (e).

Geographical Indication in relation to good means an indication which identifies such


goods as........ or manufactured goods as ....... or manufactured in the territory of country, or a
region or locality in that territory, where a given quality, reputation or other characteristic of
such goods is essentially attributable to its geographical origin and in case where such goods
are manufactured goods one of the activities of either the production or of processing or
preparation of the goods concerned takes place in such territory, region or locality, as the case
may be.

Meaning of ‘Indication’13 as per the GI Act of 1999 includes among others, the
Geographical origin of goods to which it applies. ‘Goods’14 as per GI Act of 1999 includes
even goods of handicraft or of industry.

While the above definitions are not exhaustive but merely illustrative, it would not be out
of context to mention that while TRIPS Agreement refers to goods, the Indian Act classifies
such goods. So accordingly, members of WTO can mould their National Laws for their
socio-economic benefits without violating the rules under the trips Agreement.

As the concept of ‘goods’ in GI Act of 1999 also includes goods of handicraft which in a
wider sense includes products of handloom. Thus ‘Gamosa’ a product of human skill weaved

13
Section 2(1)(g) of GI Act, 1999, indication includes any name, geographical or figurative representation or
any combination of them conveying or suggesting the geographical origin of goods to which it applies.
14
Section 2(1) (f) of GI Act, 1999, goods means any agriculture, natural or manufactured goods or any goods of
handicraft or of industry and includes food stuff.
by the people of Assam does includes under handicraft and it has its potentiality to be defined
as ‘goods’ under section 2(1)(f) of the GI Act, 1999.

‘Gamosa’ as goods also has its indication under section 2(1)(g) as it does have a
geographical representation of the State of Assam that suggests the geographical origin of
goods (gamosa) to which it is applied to Assam from the Ancient times.

Registration of Gamosa under the GI Act of 1999

According to Section 8 of the GI Act, a geographical indication can be registered in


respect of any or all the goods comprised in a prescribed class of goods and in respect of a
definite territory of a country or a region or locality. Gamosa which does falls under the
classification of goods after going through the above discussions and as it also falls under a
definite territory of a region or locality i.e Assam we can agree that gamosa is definitely fit
for registration as it fulfils the criteria of section 8 of GI Act.

And as per Section 9 of the GI Act, Gamosa does not falls under any of the category that
restricts its registration.

Who may apply?

According to section 11 of the Act, any association of persons or producers or any


organisation or authority which represents the interest of producers of the concerned GI
goods can apply for registration under GI an affidavit in this direction will be required if the
association is not of producers of goods.

In case of Gamosa, if the producers of the concerned goods can get together and form an
association, they can file for GI registration or any other organisation from Assam
representing the interest of the producers can file for registration of GI.

How can apply?

An application shall be given in writing to the Registrar in such form and in such manner
and accompanied by such fees as may be prescribed for the registration of the GI.

Essential Conditions for Registration


1. It should include a statement on how the GI serves to designate the goods as originating
from the concerned territory or locality of Assam and in respect of specific quality, reputation
or other characteristics.

2. The class of goods to which the GI shall apply. In this case, clause 24 of the fourth
schedule to the Geographical Indication of Goods (Registration and Protection) Rules 2002
specifies protection of textiles and textiles goods.

3. Specification and description of the product i.e Gamosa in this case, its colour, usage,
pattern of weaving, its design and its uniqueness and geographical linkage clearly indicating
its characteristic, significance and human creativity of the weavers.

4. Method and production of gamosa in detail including the raw materials used.

5. In order to prove its origin or geographical indication any official document including
gazettes, articles and any other evidentiary material is required for registering the product.

6. Inspection body may be set up to inspect its quality and process of weaving.

7. The present market condition can be given with details of exports if any, total turnover of
the product and activities taken by the community for the promotion of GI. After that the
application shall be signed by the applicant or his agent and must be accompanied by a
statement of case. The application has to be sent to the GI Registry Chennai or file online
along with the prescribed fees, filled by a legal practitioner or a registered agent.

Infringement of GI

Section 22 of the GI Act, 1999 deals with Infringement of Registered GI, under which a
GI is said to be Infringed when a person, who not being an authorised user

i. Uses such an Indication on the goods or suggests that such goods originate in some other
geographical area other than the true place of origin of the goods which misleads the
public;

ii. Uses any GI in such manner which constitutes an act of unfair competition including
passing off in respect of registered GI;
iii. Uses another GI to the goods which although literally true as to the territory, region or
locality in which the goods originate, falsely represents to the public that the goods originate
in the territory, region or locality in respect of which such registered GI relates.

Remedies for Infringement of GI

There are two kinds of remedies available for protection of registered GI. They are:

a. Civil Remedy

b. Criminal Remedy

a. In case of Civil remedies for infringement of a registered GI, the Act provides, Injunction,
damages or account of profit. However, these remedies are not exhaustive but inclusive and
the court may provide some other remedies in addition to the aforesaid.

b. Criminal remedies are provided in the Chapter VIII of the GI Act, 1999, where offences
and penalties are provided. Criminal remedies are more effective than the civil remedies.

The GI Act, 1999 provides penal provisions for violation of various provisions relating to
GI. They are:

i. Falsifying and falsely applying GI to goods15.

ii. Selling goods to which false geographical indications is applied16.

iii. Falsely representing GI as registered17.

iv. Improperly describing a place of business as connected with the geographical


indications registry18.

v. Falsification of entries in the register19.

The punishment prescribed for the aforesaid offences varies from six months to three
years imprisonment and a fine of not less than rupees fifty thousand but may extend to rupees
two lakhs. However the court for adequate and special reasons in writing may impose lesser
punishment.

15
GI Act, 1999, Section 38 and 39.
16
Id. Section 40
17
Supra note 21, Section42
18
Supranote 21, Section 43
19
Supra note 21, Section 44
The Act also prescribes for enhanced penalty for second or subsequent conviction. The
term of imprisonment in such cases shall not be less than one year but it may extend up to
three years and fine of not less than one lakh rupees which may extend up to two lakhs
rupees. The discretion is vested with the courts to impose a lesser punishment after recording
in the judgment adequate and special reasons for awarding such lesser punishment. No
cognizance would be taken of any conviction made before the commencement of this Act.
The offence under the Act is cognizable.

Inclusion of Innovative Artistic Work under the Indian Copyright Act, 1957:
Case Study

Works of the intellect can be exploited without limit. Myriad persons can use and enjoy
human intellectual productions without decreasing their potential to be communicated.
Nevertheless, they are far from being as ‘free as the air to common use.’20 By setting forth the
exclusive rights of authors, copyright law ensures that the creators of literary and artistic
works can control the use and enjoyment of their works for a certain period of time.

Defining Copyright

The term Copyright as per Section 14 of the Copyright Act, 1957 is the exclusive right to
do or authorise others to do certain acts in relation to:

a. literary, dramatic or musical works;

b. computer programme;

c. artistic works;

d. cinematograph film; and

e. sound recording

In case of an artistic work the author has exclusive right to-

i. to reproduce the work in any material form including storing in any medium by electronic
or other means and depicting either in two dimensional or three;

ii. to communicate the work to the public;

20
Martin Senftleben, Copyright, Limitations and the Three-Step Test; An Analysis of the Three-Step Test in
International and EC Copyright Law, KLI (2004)
iii. to issue copies of the work to the public not being copies already in circulation;

iv. to include the work in any cinematograph film;

v. to make any adaptation of the work;

vi. to do in relation to an adaptation of the work any of the acts specified in relation to
the work in sub-clauses (i) to (iv).

Under Section 13(1)(a) of the Copyright Act, 1957, the subject matter of copyright
subsists in the works of original literary, dramatic, musical and artistic works. The exclusive
right to do the respective acts extends not only to the whole of the work, but to any
substantial part thereof or to any translation or adaptation thereof. Under the Indian Copyright
Act of 1957, copyright subsists within the life time of the author until sixty years from the
beginning of the calendar year next following the year in which the author dies 21. After this
period, works are considered to be in public domain which will be free to be used by others
without taking the consent of the author.

Artistic Work as an Essential Element of Copyright

According to Copyright Act of 1957 the term ‘artistic work’ under section 2(c) also
includes: ‘any other work of artistic craftsmanship.’

Thus, ‘artistic craftsmanship’ used in copyright legislation includes forms of artistic


expression beyond the conventions of painting, drawings and sculptures 22. Understanding the
term artistic craftsmanship was highlighted in George Hensher Ltd. v. Restawhile Upholstery
ltd23where five different Law Lords took five different approaches. But all the Lords
concurred in the conclusion that a flimsy prototype of a mass-market upholstered chair did
not qualify as a work of artistic craftsmanship even if it could be regarded as a work of
craftsmanship in the first place.

Recognition and Protection of the Work of Hema Prabha Chutia under the
International Instruments

International Covenant on Economic, Social and Cultural Rights (ICESCR)

21
Section 22 of the Copyright Act, 1957, Term of copyright in published literary, dramatic, musical and
artistic works.
22
Alka Chawla, Law of Copyright: Comparative Perspective 53-54 (Lexis Nexis, Delhi, 1st ed. 2013)
23
64 AC (1976).
The ICESCR is a multilateral treaty that has been adopted by the UN General Assembly
on 16th of December 1966 which came into force from 3rd January, 1976 to which India is a
party to it, recognises the rights of individuals and protecting the interest of its community
members.

Article 1 of its provision allows its people to have a right of self determination. It means
that every individual of the member states shall have the right to freely determine their
political status and pursue their economic, social and cultural development.

Article 1524 allows the States Parties to the ICESCR to recognize the rights of every
member to take part in cultural life, to benefit from the protection of moral and material
interest resulting from any scientific, literary or artistic production of which he is the author.
Thus an author of any literary or artistic production shall be protected from infringement of
their right and shall protect their work to gain benefit out of it.

After going through all the provisions of ICESCR it can be taken that Mrs. Chutia shall
have a right under ICESCR. As India is a member as it has acceded and ratified the ICESCR
on 10th of April, 1979, the Government of India shall have the responsibility to promote and
respect the rights as agreed under the above convention. States Parties to the present
Covenant should take steps to achieve the full realization of the right.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)

The UNDRIP was adopted by the General Assembly on 13 September, 2007 and India
being a Party to it can fully acquire and implement its provisions for its development and
welfare. The Declaration sets out the individual and collective rights of Indigenous people as
well as their rights to culture, identity, language, employment, health, education and other
issues. It recognizes the Right to Self Determination by which they are free to pursue their
socio-economic and cultural development under Article 3.

They have the right to maintain and strengthen their socio-economic, cultural, political
and legal institutions and freedom to participate as well under Article 5. Thus, the indigenous

24
. International Covenant on Economic, Social and Cultural Rights, 1966, Article 15(1): The States parties to
the present covenant recognize the right of everyone:
a. to take part in cultural life;
b. to enjoy the benefit of scientific progress and its applications;
c. to benefit from the protection of the moral and material interests resulting from any scientific,
literary or artistic production of which he is an author.
people have the right to participate in cultural activities and strengthen their institutions
through various ways.

Article 11 confers right to the indigenous people to practice, maintain and revitalize their
cultural traditions and customs by way of arts, literature and various other ways and means;
and State shall provide redress if any of their rights are violated.

So, can we assume that as India being a party to the UNDRIP shall confer such right to
its people. By going through the provisions Assamese people are Indigenous people and so
they have equal right to participate and be protected in order to promote and develop
innovative ideas and expressions in relation to handicraft and handloom products. Again,
Article 31 specifically emphasises on maintaining, developing and protection of cultural
heritage, TK and TCE and protecting their intellectual property. Through UNDRIP Mrs.
Chutia can also claim protection of her work under its various provisions.

Protection of Mrs. Chutia’s Work under the Constitutional Framework

The preamble to the Indian Constitution envisages and provides to the people of India to
secure Justice – social, economic and political and Liberty of thought and expression. And in
order to comply and fulfil the objectives of the Preamble, the Constitution has enshrined the
Fundamental Rights(Part III), Directive Principles of State Policy (part IV) and Fundamental
Duties (part IV-A) respectively. Preamble is also considered to be the heart and soul of the
Constitution25 .

Talking about Liberty, it has multiple strands and it is through interpretation of the
judiciary that gives life and blood to the term liberty. The term ‘liberty’ has different
connotation to different people. It is recognized as the basic human rights which is essential
for the development of human personality26.

Article 1927 of the UDHR, all human beings have a right to enjoy freedom of opinion
and expression from which one can determine the rights of individuals to express oneself
through any medium of instruments. Expression is a vague term it does not have its own

25
Keshavandana Bharati V. Union of India, (1973) 4 SCC 225 (India).
26
Aparajita Baruah, Preamble of the Constitution of India: An Insight and Comparison with other
Constitutions 54-55 (Deep & Deep Publications Pvt. LTD, New Delhi, 1 st ed. 2007)
27
Universal Declaration of Human Rights, Article 19, Everyone has the right to freedom of opinion and
expression; this right includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.
force unless it is used as a suffix with other modes of expression. Constitution of India has
adopted the same resolution of the U.N and put freedom of expression under Article 19.

The Indian Constitution under Article 19(1)(a)28 provides right to freedom of speech and
expression. Here, the word ‘expression’ means expressing in any form. Mrs. Chutia through
her handloom has expressed her creativeness which is very much protected and recognized
under the Indian Constitution.

The objective of Justice social, economic and political can be achieved through Part IV
of the Constitution. Under Article 37 of Part IV, the principles laid down are stated to be
fundamental in the governance of the country and it shall be the duty of the State to apply
these principles law making.

State should promote international peace and order and respect for the international laws
and treaty obligations in order to maintain just and honourable relations between nations as
mentioned in Article 5129. As India is a party to the TRIPS Agreement and Berne Convention
for the Protection of Literary and Artistic Works (1886), it should abide by its provisions and
make room for its applications for the development and promotion of creative work in the
respective countries.

Also, there are various provisions in the Constitution where linguistic, ethnic or cultural
and religious minorities can protect their rights. Religion and language are two such things
that help in determining the cultural identity of a community. The Constitution of India
under Article 345, has recognizes 22 official languages of the State, out of which Assamese
is one of it.

However, with due time the Assamese linguistic group has fallen down to less than 50%
of the total population in Assam because of large number of Bangladeshi population moving
in Assam. The period from 1966 to 1971 saw tremendous influx of Bangladeshi who has
settled in various parts of Assam, mostly in lower Assam.

28
Constitution of India, Article 19(1)(a): All citizens shall have the right to freedom of speech and
expression.
29
Constitution of India, Article 51: Promotion of International Peace and Security- the state shall endeavour to
a. promote international peace and security;
b. maintain just and honorable relations between nations;
c. foster respect for international law and treaty obligations in the dealings of organized peoples with one
another; and
d. encourage settlement of international disputes by arbitration.
According to 2011 census report, out of 27 districts of Assam 9 districts are of Muslim-
majority30. With such a growing rate of Muslim population from Bangladesh, there is a silent
demographic invasion of Assam resulting in changing the Assam’s demographic structure.

In Sarbananda Sonwal v. Union of India31 it was observed that as a result of huge


influx, resulting in loss of life and property of the Assamese people is a clear violation of
Article 21 and 29 of the Constitution. There is not only an assault on the life of the citizenry
of the State of Assam but there is an assault on their way of life as well. The culture of the
Assamese people has been eroded.

In Assam Sanmilita Mahasangha & Ors. V. Union of India & Ors.32 It was observed
that as a result of large number of illegal migrant from Bangladesh, the population index of
Assam has been reduced to a minority in their home State, keeping their cultural, political
and administrative mechanism in jeopardy.

In both the case Supreme Court has given directives to abide by the Assam Accord,
1985, where through Article 6 constitutional, legislative and administrative safeguards shall
be provided to protect, preserve and promote cultural, social, linguistic identity and heritage
of Assamese people.

The identity of a State depends on the language of the people in that particular State. As
Assamese linguistic group has fallen below 50% of the total population, Assamese people
have become minority within their State. The Constitution of India under Article 29(1) gives
protection to the interest of minorities but the term ‘minority’ is a vague concept unless it is
defined. Problem in defining the concept of minority aroused while framing the Indian
Constitution.

Then the term ‘minority’ was posed in the Kerala Education Bill 33. The Court in In re
The Kerala Education Bill34 observed that minority is a term that has not been defined in the
Constitution and in absence of any precise definition; it must be considered that a minority
community means a community which is numerically less than 50% of the entire State
population. Minority is to be determined only in relation to the particular legislation which is
being challenged.

30
Editorial, Muslim majority Districts in Assam, The Times of India, Aug. 26, 2015 at 4.
31
(2005) 5 SCC 665.
32
(2015) 3 SCC 1.
33
Kerala Education Bill Legislative Assembly, 1957
34
AIR 1958 SC 956.
The term minority thus means linguistic minority. Article 29(1) of the Constitution of
India, any citizen residing in any part or territory of India having a distinct language, script or
culture of its own have been provided with a right to ‘conserve’ or ‘preserve’ the same. The
Assamese People have their fundamental right to preserve ones’ own cultural heritage of the
community and protecting their language and scripts. Article 29(1) includes the right to
agitate for the protection of the language, and unlike Article 19(1), Article 29(1) is not
subject to any reasonable restrictions. The right conferred upon the citizens to conserve their
language, etc., is made absolute by the Constitution35.

From the above discussion it can correctly state that the Assamese people have a
fundamental right to conserve any distinct language, script or culture and it can be saved by
the State by giving recognition and protection.

Innovative Artistic Weaving by Hema Prabha Chutia: Case Study

Weaving is an art which every women from different household engages themselves for
fulfilling their basic requirements. While there are variation and modes of weaving, it also
varies according to its utility. However, not all weaving is for functional purpose; it also has a
sense of aesthetic value within it.

However, the question that arises is whether the innovative weaving of handloom by
Hema Prabha Chutia falls under artistic work? Whether it fulfils the test of originality?

As per the definition of ‘artistic work’ under section 2(c) of the Copyright Act, 1957 the
term artistic work among others also includes any other work of artistic craftsmanship. As
has been discussed above, the term has no specific definition under the Copyright Act and is
itself inclusive which is beyond painting, drawings, sculptures etc. By this, we can assume
that the handloom which is made by the weavers is a work of art and carries a figure of
craftsmanship within it.

The question of originality, the threshold standard of qualification for copyright


protection, is at the core of copyright ability. Defining or redefining this threshold standard
has serious consequences for the copyright system. Article 2(1) of Berne Convention
provides that protected works must be intellectual creations. However, there is no consensus
on what originality means. The term is neither defined in Berne Convention, nor is it defined

35
Id at 1268
under the National Laws. It is a matter left for determination by the courts in relation to
particular cases.

To qualify for copyright protection an artistic work must be an ‘original’. The term
‘originality’ is not to be understood as that of ‘novelty’ under the Patent law. Some degree of
intellectual effort must be there, the idea of work can be borrowed from others but the
expression or the end product must stand alone and must not be copied from others work.

Article 9(2) of the TRIPS Agreement states that, the copyright protection extends to
expressions and not to ideas, procedures and methods of operation or mathematical concepts
as such. Article 2 of WCT, 1996 is consistent with TRIPS. Even the Indian Courts have time
and again held that there is no copyright in an idea but it vests in the expression of an idea.36

The important factor that needs to be considered is that whether the work is the result of
sufficient independent labour, skill and judgement bestowed by an author or composer even
though he might have derived his material from a source common to all.

As per section 13 of the Act of 1957, apart from minimal degree of creativity the test of
‘sweat of brow’ is also a requirement from getting protection. Mrs Chutia who hails from
Maran, Dibrugarh District, has not only used her minimal degree of creativity but has also
qualified the test of sweat of brow. Apart from weaving the innovative handloom she has also
put her labour in rearing the cocoons and spinning the threads of eri for weaving. She spends
six to seven hours per day in the loom while weaving the Gunamala and Namgokha. Mrs
Chutia started weaving ‘Gunamala’ from 22nd of July, 2013 to 14th of April, 2014 and
‘Namgokha’ from 10th of August, 2014 to 15th of July, 2016. The length of Namgokha is
200 ft. And its breadth is 2 ft.; whereas, the length of Gunamala is 80 ft. And its breadth
is 1 ft .5inch.

Gunamala and Namgokha are two pious works by Srimanata Sankerdeva and
Mahapurush Madhabdeva that was carried out during the Vaishnavite era. These two books
have a sense of spirituality attached to it which connects a person to the celestial world. The
scripts of these holy books are inscribed by Mrs. Chutia on her handloom by using Muga and
Eri threads which is her sole idea. Her work reflects its uniqueness as it stands in a different
position than the rest of the weavers of Assam and other parts of India.

36
Supra note 28 at 57.
There are various types and usage of gamosa in Assamese society; but her handloom has
a religious and cultural essence which doesn’t fall under common usage. Mrs Chutia’s work
holds values, ethics, morality and identity of one’s own culture and tradition. Gamosa has an
indication of source to that of Assam and can be used as a means through which Mrs Chutia
can link it to her work. Her work reflects the idea of ana-kota gamosa which is used for
various cultural and traditional purposes in the Assamese Society.

Taking gamosa as a base Mrs Chutia has artistically created a new product, which is not
only a pride of Assam, but has given a new form for preserving our culture and heritage.
Through this work the future generation will be inspired to safeguard and preserve our
ancient culture and traditions. Mrs. Chutia does feel the need of protection, especially when
there are numerous other weavers who have already started to take her idea and made various
similar handlooms.

Procedure for Registration under Copyright Act of 1957

Copyright Registration gives the author and the owner an exclusive right (except certain
circumstances) over his work or her work. It gives them economic right enabling to control
use of their material in a number of ways and also gives them the moral right to be identified
as the creator of certain kinds of material and to object to its distortion or mutilation.

The purpose of copyright law in India is to allow copyright registrants to gain economic
rewards for their efforts and to encourage future creativity and development of new material
which benefit us all. In case of an artistic work the author is the first owner of copyright
under Section 17 of the Copyright Act, 1957.

The procedure for copyright registration is mentioned in Copyright Rules 2013. Under
this rule Article 69 provides the form of Register of Copyright, where a register of copyrights
will be kept in physical and electronic form. Part III of the Article states Artistic work.
Article 70 provides application for registration where every application for registration of
copyright shall be made by the author or owner of the right.

In such case Mrs. Chutia being the creator of her handloom she will be the applicant.
She have to file the application in the copyright office which is present in Dwarka, New
Delhi by person or by post or through online provided on the website of copyright office. She
has to give application to every person who claims or has any interest in the subject matter of
copyright. If after waiting for thirty days no objection to registration arises, then the registrar
of copyright after being satisfied about the correctness of the application shall grant copyright
registration. The process is deemed to have completed when a copy of the entries made in the
register is signed and issued by Registrar of copyrights or Deputy Registrar of copyrights.

Remedies against Infringement of Copyright

The Copyright Act, 1957 has laid down the provision for infringement of copyright 37 and
the owner of the copyright has two kinds of machineries available for enforcing copyright:

A. Administrative machinery consisting of the Registrar of Copyright, the Copyright


Board and the Customs authorities under the Customs Act.

B. Judicial machinery which provides civil remedies under Chapter XII (Sec 54-62) and
criminal remedies under Chapter XIII (sec-63-70).

One of the major concerns of copyright owners has been the trans-border movement of
infringement material. The onus of prevention has always been on the Customs Authorities38.
However, the TRIPS Agreement for the first time laid down minimum standards to be
followed by member countries in Part III dealing with Articles 49-60. As India is a signatory
to TRIPS, it has to comply with norms laid down therein.

Prior to 2012 Copyright Amendment, section 53 provided the remedy to prevent


importation of infringing copies into India. Sec 53 is quasi-judicial in nature. Section 11 gives
powers to the Copyright Board and any order against the Registrar of Copyrights and
Copyright Board can be appealed as per sec 72 of the Act.

i) Civil remedies: it is generally available to those, whose proprietary rights have been
invaded. Sec 54 specify that only an ‘owner of copyright’ can file a suit for civil remedies.
Civil remedies provide three reliefs: Injunctions, damages and account for profits. Here,
under se 57, an author has a special right to claim authorship of the work, to restrict or claim
damages in respect of distortion, mutilation, modification etc if it would be prejudicial to his
honour or reputation.

37
Copyright Act, 1957, Section 51
38
Supra note 28 at 238-256
Part III of TRIPS Agreement that deals with ‘enforcement of IPRs’ provides eight
Articles, which lays down the civil and administrative procedures and remedies. Article 44-
46 specifically require the member States to endow its judicial authorities with the power to
issue order of injunction, power to order payment of damages which is adequate to
compensate the right holder where the infringer knowingly engaged in infringing activity.

ii) Criminal remedies: it is a distinct and independent remedy that can be availed of
simultaneously with the civil remedies. Infringement of copyright is a cognizable offence.
Under the Copyright Act, for infringing the copyright, one is given a minimum period of six
months imprisonment, which is increased to three years and a fine of rupees fifty thousand
that extends to two lakhs rupees. For repeated offender minimum period of imprisonment is
one year and fine of one lakh rupees is bestowed upon the criminal.

Part III, Sec 5 of the TRIPS Agreement consists of Article 61 that pertains to criminal
procedure for certain forms of infringement. TRIPS Agreement requires that the member
should provide for criminal procedure and penalties in cases on a commercial scale. Such
penalties must include imprisonment and monetary fines. Criminal procedures and criminal
penalties are neither required by, nor prohibited by, the treaties administered by WIPO 39.

An owner of copyright has both civil and criminal remedies apart from administrative
machinery. Both national and international laws gives the owner of copyright the right to take
action against the infringer and can claim damages.

Conclusion and Suggestions

The unification of world economy under WTO regime has thrown open the protected
market of the traditionally age-old weaving community out of gear in order to protect their
own market through advertisements and promotions. It has opened up to such an extent that
any kind of infringement of their art style and designs does not allow them to fight because of
their economic backwardness40.

Out of all the goods and products, Handloom is the most common product that is used by
community members from time immemorial. Handloom product is related with the identity
and culture of each tribes and ethnic groups. North East India is rich with handloom products

39
Supra note 28 at 256
44.
Chapter 1, Introduction, Objectives and Methodology, (Oct.17, 2017,11 p.m)
http://wtocentre.iift.ac.in/UNCTAD.
out of which the researcher has chosen the area of Assam and its local product ‘gamosa’ and
the ‘innovative handloom product’ of Mrs. Chutia. Gamosa which is widely popular in
Assam and among different communities of Assam is in dire need of protection.

After investigating, the questions so framed at the very outset of undertaking the research
could be adequately address to as follows:

Weaving is an art but not all art deserves Copyright protection. However, the handloom
that Mrs. Chutia has weaved is of excellent work of handcraft. The idea of weaving the
spiritual texts of Namghokha and Gunamala is indeed an innovative idea which she has given
it a form of expression through her work. It is indeed a handloom product and handloom
being a part of handicraft, is clear enough that the work of Mrs. Chutia is a product of
handicraft.

As we have already gone through her area of work, depiction of spiritual text in her
handloom is nothing more than an artistic creation. Her work falls within the four walls of
artistic craftsmanship, and thus it is an art which fulfils the criteria of Sec 2(c) of the
Copyright Act, 1957. Sui generis is not the correct form of remedy for her work.

The whole idea of weaving is truly an innovative idea, but what makes it more holistic
and cultural is the formation of her work. Taking gamosa as a base she has undertaken the
process of weaving. Her whole work is a continual sequence, jointly put with one another,
which gives a reflection of gamosa especially the form of ana-kota gamosa.

Gamosa which is a kind of handloom having its indication to that of Assam exclusively
makes it a product of Assam. The significance which is attached to it right from the days of
Ahom Kingdom to the present context surely reflects the richness in gamosa which identifies
the people of Assam. Having such a cultural significance, gamosa deserves legal protection
and nothing can be more appropriate other than the GI protection.

But the problem of finding a proper area under the forth schedule of the Geographical
Indications of Goods (Registration and Protection) Rules, 2002 is a tough task. Clause 24
provides only textiles and textile goods including bed and table cover. No doubt handloom is
considered a part of textiles, but handloom is not the synonym of textile. Handloom and
textile go hand in hand but not all kinds of goods deserve to be named as textiles.
Handloom and textile should be separated and the fourth schedule must incorporate the
term ‘handloom’ within clause 24 so that the goods of handloom can have a specific area. As
there is no space for the word ‘handloom’ most of handloom products are incorporated with
textiles. Even gamosa do fall under it if we go by the term ‘textiles’; but does gamosa has the
standard to that of any other textiles. Gamosa has some sentiments attached to Assamese
people and has a cultural significance that cannot be measured with other handloom products.
Thus, products of such a class like gamosa need a different category.

With utmost respect to the work done by Mrs. Chutia, the researcher can clearly say with
no hint of doubt that the handloom, which depicts the spiritual texts of Namghokha and
Gunamala is a result of artistic mind that deserves copyright under section 2(c) of the
Copyright Act, 1957.

With the above findings, the researcher would like to suggest:

Firstly, the government should make no delay in granting GI to Gamosa as there are
many identical products like gamosa that have been made in power looms and mills in
different parts of India, especially the case is made out in Bihar.

Secondly, a separate term named ‘handloom’ should be incorporated in the clause 24 of


the fourth schedule of the GI rules, 2002, as not all products deserve to be named as textiles.
The quality and efforts of weaver should be reflected in the clause by the term ‘handloom’.
Product like gamosa which is a handloom deserves a class by itself in the fourth schedule.

Thirdly, under the Copyright Act, 1957, the term handloom must be added in section 2(c)
of the Act, so that it becomes more specific. As most of the craftsmen are engaged in
handloom activities, handloom as a term must find place in the Copyright act. This will
encourage handloom weavers like Mrs. Chutia to create some more innovative ideas

Fourthly, Government should take initiative to protect such type of works and provide
economic incentives for further improvement of their work. Economic incentive encourages
people to carry out innovative work and practices and also to maintain their livelihood.

Fifthly, the Copyright Act of 1957 and the Geographical Indications of Goods
(Registration and Protection) Act, 1999 should increase the maximum amount of punishment,
so that it can set a deterrent effect to the infringer of IPR.
Sixthly, innovative work of TCE should be protected under copyright so that the
indigenous people can earn their livelihood from their knowledge that has been passed from
generation wise; and also exhibit their products outside their region so that one can appreciate
ones root and feel the vibrancy of one’s cultural heritage.