Creative Copy­right

Pankaja Balaji looks at how In­tel­lec­tual Prop­erty Rights (IPR) can be ap­plied to the fash­ion in­dus­try and why IPR is ne­c­es­sary.

Apparel - - Contents July 2018 -

De­cod­ing how In­tel­lec­tual Prop­erty Rights can be ap­plied to fash­ion

Cre­ativ­ity and in­no­va­tion are at the core of fash­ion. That is its busi­ness model to cre­ate new de­signs and cloth­ing ev­ery sea­son. Yet, the In­dian fash­ion in­dus­try is not ad­e­quately pro­tect­ing it­self from pla­gia­rism. It can be said that the very cre­ativ­ity that de­fines fash­ion is a hin­drance to its pro­tec­tion. Where can one de­signer draw a line and say ‘this is my orig­i­nal prod­uct, while that is not’? And, if be­ing a trend set­ter is the dream of ev­ery fash­ion de­signer, why stop peo­ple from repli­cat­ing it?

THE LAW

It’s only since the last few years that designers in In­dia have be­gun copy­right­ing their gar­ments, de­signs and cloth­ing lines. This de­lay, com­pared to the in­ter­na­tional mar­ket, can be at­trib­uted to the lack of aware­ness of both; the need and the law.

In In­dia, fash­ion items can be pro­tected un­der two laws: De­sign Act, 2000, and Copy­right Act, 1957. The over­laps be­tween the two can and does lead to con­fu­sion, but at the ba­sic level the im­pli­ca­tions are that de­signs reg­is­tered un­der the De­sign Act, 2000 re­ceive pro­tec­tion only by that law, which means that reg­is­tered de­signs are pro­tected by copy­right for ten years from the date of reg­is­tra­tion with a pos­si­bil­ity of a fur­ther five year ex­ten­sion. Dur­ing this time, any coun­ter­feit or sale of coun­ter­feit is pun­ish­able by law.

Whereas un­der the Copy­right Act, 1957, the reg­is­tered copy­right ex­ists for the life­time of the artist, and for an­other 60 years af­ter that. How­ever, if a de­sign is reg­is­tered un­der the De­sign Act, it can­not be pro­tected by the Copy­right Act. In­ter­est­ingly, if a de­sign that could be pro­tected un­der the De­sign Act was not reg­is­tered un­der the Act, it is au­to­mat­i­cally pro­tected un­der the copy­right law, un­less the de­sign has been re­pro­duced 50 times or more.

The ob­vi­ous query here is, why give life­time pro­tec­tion for a de­sign un­der the Copy­right Act and for a max­i­mum of 15 years un­der the De­sign Act? Thanks to the le­gal tus­sle be­tween two in­di­vid­u­als over copy­right to a par­tic­u­lar up­hol­stery de­sign, the Delhi High Court chose to de­fine orig­i­nal artis­tic work ver­sus an art work for in­dus­trial use. The for­mer would be pro­tected un­der the longer Copy­right Act, where the lat­ter would have to be reg­is­tered un­der the De­sign Act.

THE NEED

In­dia takes pride in be­ing able to mass pro­duce gar­ments cheaply, and has gained an edge over many a tex­tile na­tion in the global mar­ket.

To­day, the e-com­merce mar­ket with its coun­try wide ship­ping and mul­ti­tudes of clothes are a dream come true for many. How­ever, the flip side to this vol­ume game is the un­reg­u­lated mar­ket of coun­ter­feit cloth­ing.

If you know where to look, you will find any and ev­ery de­signer gar­ment from across the var­i­ous fash­ion sea­sons avail­able for a price. Un­for­tu­nately, this is not con­fined to the small shops in the al­leys of Chan­dini Chowk or Co­laba; designers such as Ro­hit Bal, Man­ish Mal­ho­tra,

IN IN­DIA, FASH­ION ITEMS CAN BE PRO­TECTED UN­DER TWO LAWS: DE­SIGN ACT, 2000 AND COPY­RIGHT ACT, 1957.

Nida Mo­hammed, are but a few to have called out big brands for copy­ing their work.

In­dia is a coun­try rich in art and craft with ev­ery state, re­gion, town and fam­ily be­ing able to de­fine a dis­tinct aes­thetic sen­si­bil­ity and craft that is theirs alone. Re­spect for art or the artist is not reflected in the gen­eral pop­u­lace’s re­fusal to pay the ask­ing price. Hand­i­crafts and hand­looms have borne the brunt of this as con­sumers pay a mar­gin of the cost for in­dus­tri­ally repli­cated tra­di­tional weaves over ex­pen­sive hand wo­ven gar­ments. This has forced lo­cal ar­ti­sans to slash prices dras­ti­cally to stay afloat and even forced the younger gen­er­a­tions to aban­don the fam­ily craft for daily wage work.

There are those who are will­ing to pay the price for own­ing a thing of beauty rich in cul­ture and art. But as Sabyasachi Mukher­jee ar­tic­u­lated in a re­cent in­ter­view with Vogue, “Imag­ine pay­ing full price for an out­fit, only to be seated next to an­other who is wear­ing a copy for nearly one third of the price.” On be­ing asked by the re­porter Ru­juta Vaidya about the high cost of the de­signer gar­ments, he replied, “All peo­ple see is the fab­ric and em­broi­dery, and start count­ing. De­sign needs to be in­cen­tivised. The prod­uct pays for the busi­ness and all the mul­ti­ple re­jec­tions that go into mak­ing the per­fect gar­ment,” he says.

Just as de­sign needs to be in­cen­tivised, so does the im­mense work that goes into mak­ing it. The Govern­ment’s Hand­loom mark serves to help con­sumers dis­tin­guish the painstak­ingly hand wo­ven fab­rics and gar­ments from the mass pro­duced cloth. This is a good ex­am­ple of how trade­marks can help con­sumers and artists.

TRADEMARK

A trademark is when a word, name, sym­bol, de­sign, colour or a com­bi­na­tion of these is used to iden­tify a prod­uct as be­long­ing to a sin­gle per­son or or­gan­i­sa­tions. A few ex­am­ples are Charagh Din, Ray­mond as well as the Govern­ment’s Hand­loom and Silk marks. These mark func­tions are dif­fer­en­tia­tors be­tween gen­uine and coun­ter­feit goods.

Trade­marks need not al­ways be an add on, for in­stance, Louis Vuit­ton, Yves Saint Lauren, Dolce and Gab­bana, have all used their trademark as part of their de­sign. Burberry, on the other hand, has trade­marked its check pat­tern.

In­ter­na­tion­ally, trade­marks can be ex­tended to trade dress, i.e., the to­tal im­age of a prod­uct from size to colour com­bi­na­tion. This is, in fact, very in­tu­itive, since in most cases, those who are well versed with an artist’s work can iden­tify their gar­ment by the feel of the tex­ture, the man­ner of colour mix­ing and even the stitch­ing. Thus a de­signer can pro­tect their cloth­ing line by virtue of its unique­ness.

It is im­por­tant to point out here how dif­fi­cult it is to iden­tify some­thing as be­ing truly unique and there­fore a trademark. Go­ing back to the ex­am­ple of the lo­cal weaver, the vast ma­jor­ity of In­di­ans are able, at a glance, to dis­tin­guish be­tween a Kota and Ben­gal cot­ton or be­tween a Paithani and a Kanchipu­ram due to its unique style.

Can you trademark any gar­ment that uses these tech­niques? We might need to wait for an­other few peo­ple to go to court be­fore we get some clar­ity. Ac­cord­ing to Eashan Ghosh, an in­tel­lec­tual prop­erty rights ad­vo­cate in­ter­viewed by The Quint, “It’s about what is avail­able in the pub­lic do­main, and what is not… for ex­am­ple, there is a Jodh­puri suit, which is avail­able in the pub­lic do­main. But the pat­tern you add to it is ex­clu­sive to your la­bel. And that’s a pretty clear dis­tinc­tion. You would have to demon­strate that you have added orig­i­nal­ity to a piece.”

There is a line be­tween per­mis­si­ble copy­ing un­der the law, and piracy. The thick­ness or thin­ness of the line de­pends on the judge, the case and the time. What is the dif­fer­ence be­tween 60 per cent in­fringe­ment and 30 per cent? And is there a point if the copied items are al­ready on sale?

All of these and more will hope­fully be set­tled as more and more designers be­gin to pro­tect their work.

CON­CLU­SION

In a le­gal blog by Anub­hav Pandey, he ex­plains an­other way in which IPR can be pro­tected. He talks about the case of Dior copy­ing the hand block print cre­ated by Peo­ple Tree, a cloth­ing col­lec­tive, in col­lab­o­ra­tion with lo­cal ar­ti­sans from a re­gion in Ra­jasthan. While be­ing an ob­vi­ous vi­o­la­tion of Peo­ple Tree’s IP, legally the use of the hand block print in it­self was not piracy. How­ever, the col­lab­o­ra­tion be­tween the var­i­ous par­ties to cre­ate it made it im­pos­si­ble to reg­is­ter un­der the Trade­marks Act, De­sign Act or Copy­right Act.

What could have helped was the use of Ge­o­graph­i­cal In­di­ca­tion of Goods Act. An ini­tia­tive by the Govern­ment of In­dia, it means that goods orig­i­nat­ing from a spe­cific ge­o­graph­i­cal area are pro­tected un­der IP as orig­i­nat­ing from that area. How­ever, since this was not the case with Peo­ple Tree, Dior was able to use the loop­hole.

Thus, aware­ness is an es­sen­tial as­pect of the fight to pro­tect IP. The need is ob­vi­ous; for a brand to ex­ist there must be an iden­tity unique to it, and without IPR that is not pos­si­ble.

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