• The Law Gazette

Copyrights in the Fashion Industry

The Fashion industry in India has seen a boom in the last decade especially after the protections provided under various law regimes. The Fashion industry started to flourish when the demand for the foreign brands which was possible after the Liberalization, Privatization, and Globalization Policy of 1999. It is also seen that as there has been a rise in the fashion industry and also in the copying of the items manufactured. Often it is seen that the good is fashionable when it is more copied. It has been argued upon both ways that this copying has led to ‘democratizing’ the fashion industry but on the other hand killing the ideas of the fashion brand.


The copying of the designs, patterns, and styles have been havoc for fashion brands in India. Hence, intellectual property protection is essential. The Laws about the fashion industry in relation the intellectual property are trademarks, copyrights, and designs. Copyrights and Designs come into play when protection for the art in the form of patterns, lines, colors, shapes, etc, and when it is produced more than 50 times through an industrial process.


OVERVIEW OF COPYRIGHTS

A copyright is an intellectual property that a person can own. A copyright is an assortment of rights that automatically vests to someone who produces a novel work of art. These rights include the right to reproduce the work, to prepare derivative works, to distribute copies, and display the work publicly. Several components of fashion are protectable under Copyright Law such as drawings, photographs of models, jewelry, editorial content, fabric pattern which can be used on the garments. In Louis Vuitton Malletier v. Atul Jaggi and Another[i], Delhi High Court documented copyright of the plaintiff in the ‘Toile Monogram’ pattern as well as in the Murakami monograms of the plaintiff.


In Microfibres, Inc v. Girdhar[ii], the issued was raised that whether the arrangement of motifs, flowers, leaves and shapes which have been arranged in a particular manner would be applicable for Copyright as ‘labor and skill’ in which the court held that such type of work could not be included in the definition of “Artistic works” as provided under Section 2 (c) of the Copyright Act, 1957. The expansion of the copyrights has been from the common law. Gradually, it got codified and the development in the protection took-off. The codification and amendments thereafter brought changes in the regime and also smoothened the way out of the debate of intellectual property for private interest v. public use.


Under the Copyrights Act, the copyrighted product can be reproduced by that property holder only, unless it falls under the exceptions of fair use, assignment, or the compulsory licenses. However, these copyrights are not available for ideas, discoveries, concepts, or theories. The term of the copyright lasts for the lifetime of the artist or 60 years. The fashion industry can utilize the protection under the Copyrights Law under the artistic work which includes painting, sculpture, drawing (including a map, diagram, or a charted plan), an engraving of a photograph, work of architecture any other work of artistic craftsmanship.


HISTORY

In India, the first enactment came in the year of 1914. This was majorly based upon the English law of 1911. Before the independence, the parliament used to rely upon the laws of England for enacting in India. During independence, we inculcated into our constitution that all the laws before the independence would continue thereafter. England repealed the law of 1911 and enacted its law in the year 1956. India relying upon the English law and the TRIPS (Trade Related Intellectual Property Rights), enacted the Copyrights Act of 1957 which was amended timely.


Freedom of Trade v. Copyrights

The law of copyright does not encroach the freedom of business as guaranteed to all persons under the Article 19(1)(g), Constitution of India. It protects intellectual property. It is no more intrusion with trade than is the law against burglary. Free trade does not necessitate that one person must be permitted to appropriate without payment, the fruits of another’s labor, whether they are tangible or intangible. The monopoly of the owner of the copyright is confined to acts specified under the Copyright Act 1957 and would not outspread there, to find him the monopoly of his knowledge, ideas, information, facts, incidents, scheme, system or method, apart from their expression, in the form of literary work.


Copyright is ‘intellectual property’. The object of Copyright is to protect the exclusive right of the author from an unlawful reproduction or exploitation of his works. Copyright serves a variety of industries including manufacturing industries as well as commerce and trade[iii]. Thus, in the fashion industry, acquiring copyrights for art does not restrict any trade, business, or profession rather it helps to promote new ideas and inventions. The fashion industry requires such protection as it is very volatile and requires protection from the knocking-off.

NEXUS IN BETWEEN DESIGNS AND COPYRIGHTS

In the fashion industry, the producers can opt for the protection under the Designs Act for their designs, patterns, shapes, ornaments, color, or line patterns which can be distinctively judged by the human eye when the products are being produced in bulk.


The copyrights are protected under the Copyrights Act, 1957 and if the design is produced more than 50 times through an industrial process, then the Designs Act, 2000 comes into play. The duration of protection is more under the Copyrights Act as compared to the Designs Act. This is because the Designs act covers the industrial or commercial use of design whereas Copyrights protect the novel ideas and designs which requires a higher amount of protection.


This was reiterated in Ritika Pvt. Ltd. Biba Apparels Private Ltd[iv]. The court held that once the design is replicated more than 50 times, the copyright on it is extinguished and it will be protected only if it is registered under the Designs Act. Whereas, in the case of Rajesh Masrani vs. Tahiliani Design Pvt. Ltd.[v], copyright protection was provided as the design was not replicated more than 50 times.


INFRINGEMENT AND REMEDIES

There are two types of machinery available for enforcing the copyrights, administrative and judiciary. The administrative machinery is through the copyrights board and the registrar of the copyrights. The judiciary machinery lies as civil remedies and criminal remedies as ‘offenses’.


Registration of Copyrights

It is not mandatory to register a copyright. It is not a qualifying condition to have a copyright registered. Copyright occurs whether the registration is done or not. The registration is simply a part of evidence as to when a particular author started claiming copyright[vi] the artistic work in the case of the fashion industry.


There are provisions under the act which provide for the registration of the copyrights. Also, importantly, there is no provision of law wherein it is said that the non-registration of the copyrights will lead to any deprivation of rights of the owner. Though, it is important to register a design under the Designs Act, 2000 if it is used for commercial purposes. The registration of the copyrights is a mere presumption that the author is the person who owns such copyright but, this presumption is not conclusive in nature.[vii]


Process of Registration

When the copyrights are registered, they are stored in the register of copyrights kept at the Copyrights office. In this register, the names of the works to be copyrighted and the names and addresses of authors, publishers, and owners of such copyright and any other particulars as may be prescribed are entered.


The owner has to submit the required fee and the particular form to have an entry in the register. Upon receiving the requisites, if the registrar deems fit, he can grant protection under the Copyrights Act. The proviso to section 45(1) provides that in case of artistic work which is used or capable of being used with any goods or services, the applicant is required to accompany a certificate from the Registrar of Trade Marks to the effect that no trademark identical with or deceptively similar to such artistic work has been registered in the name of any other person, or that no application has been made for such registration by any other person.


The requirement laid down in the aforesaid proviso is a mandatory requirement and any non-compliance of this requirement would render the registration of the artistic work as wrongly made[viii]. The relevant entry shall be expunged from the register under section 50 of the Act. The register and entries are prone to inspections at any time. The information can also be extracted from the registers. In the fashion industry, it is important to register the designs if it is being made or replicated for more than 50 times. This will protect their design from knocking-off and unjustly enrich that another person.


CONCLUSION

The copyright law in India is somewhat outdated and we need amendments for the dynamic nature of the fashion industry. Even after protection under the law, it is difficult to stop the supply of the counterfeited goods or spot a gray market.


The knocking-off the designs and the copyrights cannot be determined as several local and gray markets sell counterfeited designs. The owner of the design cannot in any way know every dealer or supplier who is infringing their rights. A stricter law frame and severe punishments can help the designs to be protected from any unjust enrichment. India being a signatory of the TRIPS agreement can rely upon clauses of other member nations to enhance such protection for the intellectual property.

ENDNOTES [i] Louis Vuitton Malletier v. Atul Jaggi and Another, CS(OS) 1419/2009. [ii] Microfibres Inc. v. Girdhar and Co., 2006 (32) PTC 157 (Del).

[iii] Sunil Kumar Gupta v. State, (1998) 3 Raj 261. [iv] Ritika Pvt. Ltd. v. Biba Apparels Pvt Ltd, 2016 (65) PTC 364 (Del). [v] Rajesh Masrani vs. Tahiliani Design Pvt. Ltd., 2008 PTC (38) 251 DEL (6). [vi] Glaxo Operations UK Ltd v. Samrat Pharma (1984) Raj LR 291. [vii] Asian Paints (I) Ltd. v. Jaikishan Paints & Allied Products, 2002 (25) PTC 735 (Bom).

[viii] Raj Kumar Saraf v. Vaidya Nandram Gigraj Chamaria, 2013 (55) PTC 354 (Del) (DB) at p. 361.


ABOUT THE AUTHOR

This blog has been authored by K.S. Manaswi who is a 4th Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.


[PUBLICATION NO. TLG_BLOG_20_0304]


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