Paper Details
Paper Code: RP05V12023
Category: Research Papers
Date of Publication: December 06, 2023
Citation: Ms. Preeta Brahma & Prof. (Dr.) A. Subrahmanyam, Student, “Trade Secrets for Bodo Traditional Clothing: An Empirical Study with Special Reference to Dumbazar and Kumguri Villages, Gossaigaon Sub–Division, Kokrajhar, Assam”, 1, AIJIPCA, (2023).
Author Details: *Ms. Preeta Brahma, Principal, Kokrajhar Law College, Assam, &
**Prof. (Dr.) A. Subrahmanyam, Dean, School of Law, Vel Tech Deemed to be University
ABSTRACT
Information that could give commercial advantage to the trader is eligible for legal protection. A trade secret may be a formula, pattern, compilation, or business strategy that is sensitive and confidential. At the international level TRIPS Agreement mentions that the member states are under an obligation to protect against the unlawful use of trade secrets obtained without consent. Paris Convention also requires the member states to confer protection and enforcement to industrial property including trade secrets and confidential information. However, India does not have an enacted law for trade secrets to date. This paper focuses on the traditional handloom weaving knowledge of the Bodo tribe of Assam. The main aim of this paper is to investigate if trade secrets can accommodate traditional knowledge under its purview because other intellectual property laws like copyright, geographical indications, patents, etc. are technical and grant protection for a limited period of time. This paper will investigate if separate enactment for trade secrets is required and examine the applicability of trade secrets for the rights and recognitions of Bodo handloom weavers. The author will also study to find out the best approach to provide inclusive protection to the Bodo handloom weavers.
KEYWORDS
Handloom; Trade Secret; Confidential; Protection; Traditional; Weaver
Bodoland at a Glimpse
Bodo is a linguistic and ethnic indigenous community settled largely in the Brahmaputra valley of Assam. Mostly they are found to be living in the Bodoland Territorial Region (B.T.R)/Bodoland Territorial Council (B.T.C) jurisdiction. However, the Bodo community is also spread in other parts of Assam like Karbi Anglong, Sonitpur, Lakhimpur, Dhemaji, and several other districts of Assam. To protect the political interest and to recognize the Bodo community, the VIth Schedule of the Constitution of India was amended and thereby got a separate Council named B.T.C with four districts named B.T.A.D in the year 2003. The B.T.C accord was a peace settlement between B.L.T cadres, All Bodo Students’ Union (ABSU), Govt. of India, and Govt. of Assam wherein the B.L.T. cadres have laid down their arms with aims and objectives to rehabilitate in the society. Further, once again in the year 2020, N.D.F.B cadres have laid down their arms and undergone the third Bodo peace accord with Govt. of India, Govt. of Assam, and All Bodo Students Union (ABSU) i.e; known as B.T.R. accord. At present B.T.R. has 5 (five) districts with a recent declaration of Tamulpur as a new district in 2022[1] and Bodoland Territorial Council has 40 elected members in its Legislative Assembly and 6 nominated members by the Governor, Assam.[2] B.T.C as per the provision of para 3 B[3] of the sixth schedule[4] have been vested with the power to make laws in respect to 40 subject matters. Cultural affairs, handloom, and textiles are two subject matters out of 40 on which the B.T.C. has the power to make laws.
About Bodo Handloom
Weavers: Like any other indigenous community, Bodos also has several traditional knowledge in the fields of art and craft, folklore, traditional medicinal practitioners, healers, food habits, ways of building houses, etc. One of the commonly practiced knowledge is traditional weaving. Weaving used to be part of every household activity in earlier times. Without weaving the household activities were considered incomplete. Among the Bodo tribe weaving activity to date is performed only by the women and not by the men. In earlier times the women of every Bodo house used to weave for their own purpose of wearing and for their family members. Whereas, at present women have started weaving to earn a livelihood. From the past generation itself, Bodo women were never subjected just to performing household activities alone. They have been always contributing towards the livelihood of their family. It could either be through cultivation or weaving for them to reduce the burden of purchasing for regular use. However, there is a difference in today’s time weaving in comparison with that of earlier times. At present in Bodo society, there are three kinds of handloom weavers; one kind is independent home weavers another one is small-scale industry weavers, and the third kind isweavingunderco–operative society or federations/associations, etc. The independent home weavers are just like the traditional handloom weavers who perform weaving after completing their household work or whenever they find time to do so. On the other hand, small-scale industry weavers are employed under an owner. The weavers under cooperative societies/federations or associations are hired by the chairman of the organizations. They are given a schedule for their work and are paid per item produced by the respective owner/chairman. The independent home weavers are the ones who would possess a single flying shuttle loom made with saal timber known as sal – tat. Few weavers cannot afford to purchase a sal tat or make the same. Such home weavers are making use of beetle nut tree stems to continue the weaving process. There are five kinds of Bodo clothing woven traditionally. They are Dokhona (costume for women that is wrapped around the chest and falls till ankle tied around the waistline), Jwmgra (costume for women spread around the neck like dupatta), Aronai (veil that is presented to guests as an honor and respect), Hichima (big size cloth that may be used as a shawl or thin like blanket during early winters), Gamsa (this is a knee length clothing for the men). Among these dokhona and jwmgra can be made with all kinds of thread including cotton, silk, polyster, eri silk, etc. Hichima is commonly made with eri silk and polyster, etc. gamsa is made mostly with cotton thread and aronai is made with polyster, cotton, and eri silk, etc. The whole process and tools used for weaving can be well-referred to the article titled “Traditional Weaving Technology of Bodo Community of Assam” published by Dr. Hemanta Mochahary, Dr. Ambeswar Gogoi, and Bikash Chetia in the year 2020.[5]
Trade Secret
Trade secret plays an important role in the field of research and development. A trade secret is confidential information that brings commercial advantage to the owner in conducting the business. The owner of such information intends to keep it secret as it brings commercial advantage to him. Usually, trade secret is not revealed because once its glory is lost it no longer remains a secret. Almost any type of data, process, or information can be referred to as a trade secret so long as it is intended to be kept secret and involves the economic interest of the owner. The owner of such information maintains secrecy because a non – tiring effort and the intellectual attempt had been made to create a particular thing. Trade secret plays a pivotal role in protecting innovations and establishing rights to use technology.[6] It is believed that in today’s global market, those business of which the information and knowledge is kept secret will succeed. If the business policies are made known to the outside world then it becomes difficult for the owner to safeguard the information which could have an adverse impact on the business.
The information might be misappropriated, and as a result, the value of the business may fall down. Trade secrets can last as long as they secret is maintained. The owner has to put in a lot of effort to maintain the information with due diligence and utmost care. A small negligence on the part of the owner can bring adverse effects to the business.
However, it may not be confused with that of the patent. The trade secret may not fulfill the requirement for a patent because such secret or information may not be novel.
Therefore, trade secrets are not similar to that of a patent. Patent once granted falls on the public domain for further development and innovation and is protected only for a period of 20 years. But in the case of a trade secret, it is protected as long as the secret is maintained.
The owner of the secret must attempt or take necessary steps to protect the trade secret. It is not very difficult for the owner to do so. He/she has to make sure that the information is not easily available or readily accessible to the public. For instance; the Coca–Cola Company and Kentucky Fried Chicken (KFC) have maintained their secrets of processing the beverage and crispy fried chicken for years together with their strong company policies.
Definitions
“Trade secret means information which has got certain commercial value and which provides the commercial advantage to the owner.”[7]
TRIPS Agreement:[8]
This Agreement does not treat ‘undisclosed information’ as a form of property but explains it as any information that is secret and having commercial value is prevented from being disclosed as long as such information is subject to secret with reasonableness. If any such secret information is obtained from the holder without his or her consent shall be subjected to breach of contract, breach of confidence, and dishonest commercial practices.
Emergent Genetics India Pvt. Ltd v. Shailendra Shivam and Ors. on 2 August 2011:[9]
the Delhi High Court in this case held that trade secrets are a legal concept that attempts to protect confidential information from illegal acts from rivals.
If the trade secret or information owner proves that reasonable efforts were made to keep the information confidential, then in such cases trade secret shall remain confidential and be legally protected. On the other hand, if the trade secret owners cannot establish reasonable efforts to protect confidential information, then they risk losing the quality of confidentiality of the information even if it is obtained by rivals without prior permission
Ambiance India Pvt. Ltd. v. Shri Naveen Jain, 122 (2005) DLT 421,[10]
the Delhi High Court in this case had held that a trade secret is protected and confidential information which the employee has acquired in the course of his employment and which should not reach others in the interest of the employer. However, routine day-to-day affairs of employers which are in the knowledge of many and are commonly known to others cannot be called trade secrets. A trade secret can be a formula, technicalknow–how or a peculiar mode or method of business adopted by an employer which is unknown to others.
International Framework
TRIPS Agreement[11] obliges the member states to protect all the intellectual properties that have been undertaken by the WTO. This agreement through Section 7 Article 39.2 provides for the protection of undisclosed information. It is mentioned that any such information should not be readily accessible to persons outside the circle. It must be known only by a limited number of persons. The owner must take reasonable care to protect the information from others. However, only that information should be secret which contributes to the business and commercial activities. It highlights that natural and legal persons shall be capable of preventing valuable information from outsiders. Article 39.3 requires the state to protect its people from unfair commercial use while requiring the conditions for approval of pharmaceutical or agricultural chemical products from the Govt. The submission of undisclosed tests or other data shall be protected against unfair commercial use.
Article 10bis of the Paris Convention[12] intends to apply to industrial activities including trade secrets and confidential activities by conferring protection and enforcement of trade secrets for its member states.
This convention grants protection to the trade secret owner without any discrimination on the grounds of the basis of the world or origin of the country. This convention also tried to regulate unfair competition in the field of trade and commerce by restricting the unauthorized use of confidential information or trade secrets by ensuring effective measures.
The member states must prohibit the acts that create confusion with the establishments, goods, or industrial and commercial activities of a competition. However, it does not include the wrongful misappropriation of trade secrets or confidential information or the protection of industrial trade and business secrets.
Objective
i. To analyze the applicability of trade secrets in matters of traditional knowledge.
ii. To provide legal protection and recognition to the Bodo handloom weavers.
iii. To study for providing a suitable market to the traditionally weaved Bodo dresses with the presence of fair competition.
Methodology
This study is carried out concerning the Bodo handloom weavers of Dumbazar and Kumguri villages under the Gossaigaon sub-division and Legislative Assembly constituency of Kokrajhar District, Assam. The data are collected from secondary sources and through the questionnaire method conducted by the author. The sources of secondary data are books, journals, research articles, periodicals, etc.
Research Questions
i. Whether Bodo traditional dresses be protected as a trade secret?
ii. Whether trade secret should be enacted by the legislation?
iii. Whether already available knowledge among the public eligible for protection under the efficacy of trade secrets?
Results and Findings
It is challenging for international agencies to assess the characteristics of traditional knowledge and indigenous persons. The reason is that every indigenous community has a unique way of projecting their traditional knowledge and customary practices. Every indigenous community of this world has unique characteristics with sheer knowledge and diversity originating from nature and passed on from generation to generation. Similarly, the Bodo community is also one such community that has diverse traditional knowledge and traditional cultural expressions that are continuing. One of them is the weaving culture of the Bodo community. To some extent, it is still being practiced but has reduced to a lot of extents due to reasons like modernization, and disinterest among the new generation to learn and practice the same. However, there are some notable villages or houses in Bodo society that are still practicing weaving to earn a livelihood. However, the traditional methods of weaving have taken a slight shift to a certain new form. This is what makes traditional knowledge in true sense because traditional knowledge evolves with its existence with time. The age-old practice of making the thing cannot meet the expectations of newer generations. So the new generation must explore to bring in a little change in the process of making that particular thing by keeping the traditional touch intact. A slight modification in the process of making that particular thing is needed to fulfil the needs of present times. Using recent technology in the process of making the traditional thing is needed to speed up the process and reduce the time consumed.
Similarly, the Bodo weavers of Dumbazar and Kumguri villages too have adopted the traditional process of weaving with slight modification. Earlier the entire steps right from warping the yarn (ji swngnai) to weaving (ji danai) were performed by the weavers themselves with the support of other women from family and neighbours. However, they have adopted a modified weaving process at present. The usual process of present weaving is that the weavers purchase the thread from the market. After purchasing the thread they themselves perform the spinning or winding part and some of them hire other persons to get this particular stage done for Rs 10/- (Rupees ten only) per bobbin. The warping stage (ji swngnai) is also outsourced to other person whose business is just to warp for Rs 100/- (Rupees one hundred only) per piece of Dokhona. The other stages like sizing, beaming, looming, and weaving are performed by the weavers themselves. Another notable practice of them is that the weavers do not sell them directly at the market. There are women who would purchase from the weavers and resell them to the vendors or sell them to the retail buyers. Moreover, these weavers do not weave all kinds of clothes. They are restricted to making just dokhona (the traditional attire for the Bodo women). That too mostly they are involved in making just the cotton maidi dokhonas (rice starch). This is not very appreciable because dokhona is not the only Bodo cloth. There are other kinds too. This leads to further questions like why are the independent weavers of Dumbazar and Kumguri villages not weaving other kind of Bodo cloth? During interaction it was told by one of the respondent that weavers are very much accustomed to weaving dokhona and never felt the need to weave other kinds. This definitely is a threat to the traditional cultural expression of the Bodo tribe. Aronai is one of the most important parts of Bodo culture as it is used to felicitate guests, and honour dignitaries. Also, it is used by Bodo dancers, singers, and men playing different instruments during Bagrumba dance (folk dance), kherai dance, etc. Gamsa is another important and the only cloth for the Bodo male is not being woven by the weavers of Dumbazar and Kumguri villages. This is definitely not a positive practice. This is a threat to the sustainability of Bodo culture. The identity of any community is dependent on cultural practice and dress is considered one of the important factors for preserving culture. It is a traditional cultural expression (TCE). Traditional dresses are one of the ways of preserving cultural identity. Because traditional dress does not just help people to be identified but it is also required to perform different ceremonies. For instance, marriage, religious rites, and celebrations are incomplete without the traditional clothing. The future generation should be aware and exposed to the fact that along with dokhona other kinds of dresses are also woven traditionally. Since traditional knowledge is rarely documented therefore practice is the only way of preserving them. Often for some indigenous communities, there are local customary laws that govern traditional knowledge akin to intellectual property. In such cases, the community collectively is responsible for maintaining the knowledge. At times a special status is being given to particular individuals who are specialized in respective knowledge like traditional healers, traditional medicinal practitioners, etc. However, weaving is completely different from that of any other traditional knowledge because many Bodo women are exposed to the weaving culture. So giving individual recognition and protection to every weaver is not a solution. Moreover, intellectual property laws like patents, GI, and copyright cannot grant absolute rights to traditional knowledge.
Unlike other categories of intellectual property, trade secret law may accommodate the conflicting privacy and commercialization concerns of traditional knowledge holders. But the trade secret law applies only to relatively secret, as opposed to publicly available, information may frustrate some traditional knowledge holders – particularly those whose knowledge is already publicly available.[13]
Discussion
Through trade secrets, an owner or the proprietor can keep the secret unrevealed from its competitors or rivals. It is a mechanism to protect business-related data from the public that is not easily accessible. Trade secret law strategy is to protect, uphold, and foster business integrity principles and reasonable dealing, and also inspires innovation. The unlawful use of individuals other than the owners of such information leads to an unethical activity and a breach of secrets.[14] Trade secrets will develop an independent economic gain for the owner/company/proprietor of the respective business. But the only requirement is to take reasonable steps to maintain the secrecy and non-disclosure for the sustainability of the business. The essential requirements of trade secrets in comparison to other intellectual property laws are lesser. For instance; copyright law also to an extent grants partial protection and recognition to the traditional dresses of Bodo. However, inclusive protection is not feasible under it due to its technicality. Moreover, it grants protection for a limited period of 60 years only. Certain aspects of Bodo dresses like “agor” (which means design) may be protected as the artistic ability of a weaver is required to make such a design. It involves literary knowledge of a weaver to make such agor on a dokhona or a jwmgra. Copyright law in India grants protection to the artistic and literary subject matter for a period of 60 years. But that does not supply the need to grant recognition to the traditional knowledge because it is for the eternity and sustainability. For protection under geographical indications, the applicant should be a registered group of associations under the law like society, trust, etc. The rights over the product are granted to the registered group. Moreover, another requirement under laws of geographical indications is that the product is recognized from its region of origin. In that case, the Bodo traditional dresses of all the localities will not be protected. In that situation, Bodo weavers from the entire region shall apply for GI tags separately. That is not possible because, for a single product, multiple GI tags are not granted. There will be differences among the Bodos and all the weavers will not get justice. This will further violate the socio–economic rights of every Bodo weaver. On the other hand, patent law grants protection for a period of 20 years only. The essentials of patents are novelty, usefulness, non–obvious, industrial applicability, and inventive steps. The criteria of novelty are not fulfilled in the case of traditional knowledge of weaving because this particular practice is not new and novel. It has been practiced for many years. It is a part of the customary practices. Therefore; a patent too is not a correct approach to protecting the traditional knowledge of weaving. A trade secret does not require the information to be novel or non–obvious. A slight improvement to the known process or discoveries may qualify for trade secret protection. If not exclusive potential economic value is also sufficient to qualify for the trade secret. And unlike patent law, neither the identification of individual trade secret creators nor a formal application process is required for trade secret protection.[15] It can be said that trade secret is the only meaningful protection which concerned with providing commercialization aspects by keeping the cultural and sociological values of the knowledge. Trade secrets law will help the weavers obtain the recognition that they possess. In this way, the personality enhancement will take place. The moral rights of the weavers will remain intact. The moral rights will contribute to the reputation of the weavers too. Trade secrets are a promising protection for traditional knowledge holders in comparison to other kinds of IPR laws. But the most important requirement, that is, the information should be confidential to qualify for a trade secret is questionable in matters of traditional dresses of the Bodo tribe. Because the weaving technique is already known by many and once the information is publicly known, it no longer remains a secret but becomes a knowledge for all.[16]
Mr. Justice Vijender Jain in his speech during a seminar of Asia Pacific Jurist Association (APJA) on the topic “Safeguarding the Traditional Knowledge in India” held on 28th April 2008 at Delhi[17] said that “Traditional knowledge” is anopen–ended way to refer to tradition – based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names, and symbols; undisclosed information; and all other tradition – based innovations and creations resulting from intellectual activity.” He further stated that the process and technique to create a TK may not be documented or recorded technically but that does not diminish its cultural value.
A regional policy has to be developed for the protection of indigenous knowledge related to biodiversity which includes agriculture, medicinal, and ecological-related knowledge; and also for the protection of other traditional knowledge relating to folklore. He also added that the current IPR system cannot protect traditional knowledge because it is designed to provide private ownership to the creator. Other reasons are that it is not for perpetuity and the criteria like novelty, industrial applicability, and various other requirements need to be fulfilled.
Conclusion and Suggestions
Many traditional knowledge advocates have tried to seek recognition and protection for it in several ways. Particularly several authors and writers have posed a concern stating the need to include traditional knowledge under existing IPR laws. Through this paper, it was investigated that the existing IP laws are not fit to provide inclusive protection to traditional knowledge. The reasons are that the criteria and requirements are technical and grant protection for a limited period of time. However, trade secrets could be one of the facets through which traditional knowledge could protect the items created traditionally.
Trade secret approach to traditional knowledge is a practical initiative to secure the rights of traditional weavers. Precisely trade secret grants protection to the owners against the unfair use of information, and misappropriation of confidentiality. Moreover, the TRIPS agreement and Paris Convention provides that the member states shall prepare to protect the creator of a particular thing that carries valuable information for business or occupation purpose. Hence, India as a country shall give consideration to the skill and labor invested by an individual to create a particular thing for its business. And if the creator is successfully able to prove that a reasonable attempt has been made to protect the secret of processing that thing then such creator shall be entitled to claim lawful damages. Therefore, India in par with Article 19(1)(g) of the Constitution of India should give opportunity to the Bodo weavers to flourish in trade and commerce by using traditional knowledge. Also, the right to livelihood which is an extended meaning under the jurisprudence of right to life under Art 21 of COI should be guaranteed to the Bodo handloom weavers.
Based on the above analysis the following suggestions can be made:
i. India must ensure effective legal remedies to protect the interest of the people who created or originated an item by putting in their skill and labor.
ii. There is an immediate need to enact regulations so that India is adequately safeguarding trade secrets for fair competition in the market.
iii. As far as the existing traditional knowledge is concerned, trade secret is limited because the traditional weaving knowledge is already publicly available among Bodo people. In such a scenario trade secret law can merely facilitate the unauthorized exploitation of TK.
iv. Trade Secret is not a comprehensive one to address the problem of traditional knowledge holders.
v. Alternatively, local customary law is the best way for inclusive protection of the Bodo traditional clothing and also to ensure socio–legal justice for the weavers which can be brought into by the BTC administration in accordance with para 3 B of the VIth schedule of COI.
[1] Notification by the Governor of Assam vide ref. no. GAG (8)185/2021/25 dated; Dispur the 23rd January, 2022.
[2] Preeta Brahma, ‘Protection of Bodo Handloom Weavers via Intellectual Property Laws – An Overview’ (2021) 4 (6) International Journal of Law Management & Humanities 99 available at: <https://doij.org/10.10000/IJLMH.1 12199> assessed 6 April 2022.
[3] 3B.Additional powers of the Bodoland Territorial Council to make laws.—(1) Without prejudice to the provisions of paragraph 3, the Bodoland Territorial Council within its areas shall have power to make laws with respect to:—
(iv) cultural affairs
(x) handloom and textile
[4] Paragraph 2 has been amended in its application to the State of Assam by the Sixth Schedule to the Constitution (Amendment) Act, 2003 (44 of 2003), s. 2, so as to insert the following proviso after sub-paragraph (1), namely:-
―Provided that the Bodoland Territorial Council shall consist of not more than forty-six members of whom forty shall be elected on the basis of adult suffrage, of whom thirty shall be reserved for the Scheduled Tribes, five for non-tribal communities, five open for all communities and the remaining six shall be nominated by the Governor having same rights and privileges as other members, including voting rights, from amongst the un-represented communities of the Bodoland Territorial Areas District, of which at least two shall be women.
[5] Dr. Hemanta Mochahary, et al., ‘Traditional Weaving Technology of Bodo Community of Assam’ (2020) XII (VI) Journal of Xi'an University of Architecture & Technology 1752 available at: <https://xajzkjdx.cn/gallery /178-june2020.pdf> assessed 6 April 2022.
[6] Md. Zafar Mahfooz Nomani and Faizanur Rahman, ‘Intellection of Trade Secret and Innovation Laws in India’ (2011) Vol. 16 Journal of Intellectual Property Rights 341 available at: <http://nopr.niscair.res.in/ bitstream/123456789/12449/1/IJPR%2016%284%29%20341-350.pdf> assessed 6 April 2022.
[7] N.S. Sreenivasulu (1st ed.), Law Relating to Intellectual Property (Partdridge Publishing) 2013.
[8] TRIPS Agreement available at: https://www.wto. org/english/tratop_e/trips_e/ta_docs_e/modules7_e.pdf accessed on 7 April 2022.
[9] Emergent Genetics India Pvt. Ltd vs Shailendra Shivam And Ors available at: <https://indiankanoon.org /doc/183763759/> accessed on 09 April 2022.
[10] Desiccant Rotors International ... vs Bappaditya Sarkar & Anr available at: <https://indiankanoon.org/doc /175180860/> accessed on 10 April 2022.
[11] TRIPS Agreement, available at: <https://www.wto.org /english/tratop_e/trips_e/ta_docs_e/modules7_e.pdf>
[12] Paris Convention, available at: https://www. Wipo .int/edocs/pubdocs/en/intproperty/611/wipo_pub_611.pdf accessed on 10 April 2022.
[13] Deepa Varadarajan, ‘A Trade Secret Approach to Protecting Traditional Knowledge’ (2011) 36 (2) The Yale Journal of International Law 372 , available at: <https:// paers.ssrn.com/sol3/papers.cfm?abstract_id=1892359> assessed 6 April 2022.
[14] Chinmaya Kumar Mohapatra and Amrita Mishra, ‘Trade secret protection in India’ (2020) 17 (6) Palarch’s Journal of Archaeology of Egypt / Egyptology 5436 iavailable at: <https://archives.palarch.nl/index.php/ jae/article/view/1813/1801> assessed 6 April 2022
[15] Id
[16] N.S. Sreenivasulu (1st ed.), Law Relating to Intellectual Property (Partdridge Publishing) 2013.
[17] Mr. Justice Vijender Jain, Chief Justice, Punjab And Haryana High Court, Chandigarh, ‘Safeguarding The Traditional Knowledge In India’ Asia Pacific Jurist Association (APJA).