A Fashion Designer’s Vicious Circle: The Continued Battle of Design and Copyright
The world of fashion has its own cultural and historical roots in India, from the traditional sarees and bangles to a modern-day spin with a mix to the olden day traditions to make it more fashionable (designing contemporary lehengas – with an off-shoulder blouse, creating a material type or shape of an article, etc.) Designers like Sabyasachi, Manish Malhotra, Rohit Bal, Tarun Tahiliani and many more have made their mark in the industry by incorporating culturally rooted yet statement pieces which prove to be stylish. However, with their important roles in the industry comes a heavy price of creation of knock-offs (A cheaper copy of something expensive) and counterfeits (Ripping off the design and selling it under the same brand name). Creating novelty takes inspiration, talent and hard work and in this era where Fashion Design Piracy (FDP) is a significant concern creates a mammoth loss to the designers who shell out enormous amounts of resources of money, time and resources only to be ripped-off by others.
FDP is copying someone else’s design and imitating it as their own. The biggest struggle of a designer is to protect their own designs from being copied and this is where the role of Intellectual Property comes into play. The Fashion Design industry is largely regulated by The Design Act, 2000, The Copyrights Act, 1957, The Trademark Act 1999, The Geographical Indication of Goods Act, 1999 and some of The Patent Act, 1970 as well. Out of this pool a Fashion Design is protected by The Design Act, 2000 and The Copyrights Act, 1957.
The ambit of the work that is created by these talented designers cannot be protected without categorizing these designs and the acts mentioned above have done exactly that by defining design as, “a design means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye”. Only those designs that come under this definition can be registered as a “design” and seek protection for the same when an infringement arises under Section 11 of the Act which gives protection to the registered design for a period of ten years from the date of registration. A design that falls under the definition but is unregistered is protected under section 15(2) of The Copyrights Act. When a design does not come within the scope of the Act, it will be classified as “artistic work” and is protected under section 15 of The Copyrights Act, 1957 (provided that the article has not been reproduced fifty times or more) and provides protection for the lifetime of the designer/copyright holder and sixty years after their demise.
Evidently, the protection provided under The Copyrights Act as an “artistic work” provides stronger and longer protection, even though the definition is ambiguous and does not provide clarity or distinction from design. The designers are frequently encouraged to protect their designs by registering it under the Design Act. By doing so, they can save their exclusivity which leads to them being awarded an inadequate remedy of compensation with an upper limit of fifty thousand rupees only in case of an infringement and losing their right of protection under the Copyrights Act. Not having a requirement of registration under the Copyrights Act gives it the upper hand, although if a design which is unregistered but does come under the scope of the definition and has been reproduced fifty times or more, will not be awarded a remedy under the Copyrights Act when an infringement arises. The Tahiliani Pvt Ltd. v. Rajesh Masrani’s case clearly points out that the Copyright Act is a more powerful tool to the designers, but the judgement does not provide a clear distinction between the two Acts.
Neither the Design Act nor the Copyrights Act have defined “Fashion Design” or have given exclusive protection to the designers and their fashion labels. A “Fashion Bill” was introduced in the US stating various recommendations for the Fashion Designers and their labels, but was never enacted. India, having an emerging fashion industry should introduce a similar bill which not only benefits a designer with greater and more defined protection but also expands the limit of compensation awarded to them as they spend not only extensive amount of money but also time and resources. Providing them with a whole guide to Fashion Design protection and not limiting them with having to choose one act over the other and creating a concoction of the Intellectual Property Laws.
Name: A.Vishwa Nandini
University: Symbiosis Law School, Pune
Year: 4th year, 8th Semester
Internship Batch: May 2021