Design vs Copyright in the emerging fashion sector

Introduction

The fashion industry is currently one of the fastest-growing sectors of the Indian economy thanks to the start-up culture boom, and it may also be the one most impacted by the need for legal protection against imitation and plagiarism of the goods they produce. The designers of clothing, jewellery, footwear, and various accessories like watches, scrunchies, and/or purses are significant players in the fashion industry. As there is no specific legislation that only regulates the fashion business, there is turmoil and uncertainty among start-ups about which law should be used to register their items.

Let's explore the numerous safeguards provided by both legislation in further detail in order to resolve this conundrum. The article clarifies copyright and design regulations in relation to the emerging fashion sector.

Protection under copyright in the fashion industry

The Indian Copyright Act, 1957's Section 2(c) defines artistic work as the creative work of designers and artists that is protected by copyright. Nevertheless, the Copyright Act of 1957 does not provide protection for artistic works such as distinctive names, phrases, or designs that are well-known to others.

According to Indian copyright law, a creative work is considered to be covered by copyright law the minute it is created and given a physical form, hence registration of copyright is not required for ownership of copyright on original creative works. Any particular privileges or rights in relation to the creative or artistic work are not granted by a copyright registration.

Yet, in a court of law, copyright registration and a certificate of registration only serve as a first-level proof of an article's or creative or artistic work's originality.

Protection under Designs Law in the fashion industry

The aesthetics and appearance of a product frequently fall under the purview and protection of the Designs Law, which is administered in India by the Industrial Designs Act, 2000 (hence referred to as "the Act"). The Act preserves the development of unique designs and offers defense against any form of infringement. In the broadest sense, an industrial design can be characterised as the decorative form and shape of any object or the aesthetic component of any multi-dimensional object. The article's form and shape are what make it special; this may be a fresh arrangement of lines and patterns or an unusual colour scheme.

As described in Section 2(d) of the Act, design protection can be obtained for a variety of goods, including those used for leisure as well as industrial purposes (clothing, electronics, vehicles, and the like).

An industrial design can be protected for 10 years, and after that, it can be extended for another five years. After that time, the design loses its exclusivity and enters the public domain. Because it is a territorial right, only India may defend and apply it. Nevertheless, if protection is desired in any other territory, a separate application must be completed in accordance with the applicable jurisdiction's required method and fees. The dress's form or design and the distinctive fabric from which it is created are examples of design.

Why copyright and/or design protection is needed in the fashion industry?

Due to the fast-paced expansion of the fashion industry, new designers or start-ups must obtain legal protection for their inventive and one-of-a-kind creations under the applicable statute, which not only safeguards the original artistic work and/or design but also provides them with a legal defence against copycats. It grants a temporary monopoly on a product while encouraging innovators and/or designers to produce more distinctive and original ideas and goods by giving them the creative freedom and room to do so.

Copyright vs. design 

While both copyright law and design law offer various forms of protection, copyright law offers broader protection to the fashion sector and covers a wider range of rights than the Design Act. The following list includes the same:

Designs that are not registered in accordance with the Act are ineligible for legal recourse or protection under the Designs Act. So, in order to obtain any kind of legal protection or exclusive use of a design, the Act requires the user to register it. Only once a design has been successfully registered are legal rights enforceable. Although it is recommended to register your copyright, doing so is not necessary in order to benefit from the Copyright Act's protection or legal remedies.

Design is not an innate right; it is a legislative right. Only once a design is registered with the Act does protection become available. Contrarily, copyright is a common law right that is safeguarded from the moment it is established, which is why it is seen as an inherent right.

A design loses its uniqueness if it attracts attention from the public without being registered, although copyright can be registered even after notification to the public.

A design must be registered in accordance with the class to which it belongs as determined by the Locarno Classification, which is compliant with international classification systems. As stated in Section 2(c) of the Copyright Act, copyright is present in the original artistic work.

The Designs Act covers outcomes or finished goods that may be applied to articles, but copyright still exists in the unique artistic work even if it hasn't been done so.

Critical analysis 

A creative work loses its protection under the Indian Copyright Act and becomes subject to the protection of the Design Act, 2000, once it receives protection under the Designs Act and is applied to any product or article to give it an aesthetic effect and is commercialised more than 50 times through industrial manufacture, according to Section 15 of the Copyright Act, 1957. In contrast, Section 11 of the Designs Act stipulates that the registered design has 10 years of copyright, which can then be extended by another five years. An original artistic work falls within the category of an original artistic work, while its descendants fall under the category of designs. This is the main distinction between a design and an artistic work.

The registration process of designs and copyright

Design

A registration application in Form 1 and the required fee may be submitted to register an article under the Design Act of 2000. Form 1 must contain information on the author, such as their complete name, mailing address, and country of citizenship, as well as information about the piece, such as its title and Locarno classification-related class or category number. If the applicant previously submitted their application online, they or their agent must send a physical copy of the form.

Copyright

Although while copyright registration is not required, doing so is still a good idea. Depending on the nature of copyright work, an applicant must fill out form XIV or submit it electronically to the copyright registrar when requesting copyright registration. If the applicant is filling out the application on their behalf, they must provide a power of attorney, the application form, the required fee, and information about the owner or author of the artistic work.

Conclusion

It is advised for designers of start-ups and fashion houses to register their original creations in accordance with the production and marketing of each product or segment of products under the applicable law of design or copyright due to the dynamic nature of the fashion industry and the fast fashion brands' takeover of the fashion market. Even if a design may be an original artistic creation, it cannot be protected under the Copyright Act if it has been registered under the Designs Act of 2000. If less than fifty copies of a design that is capable of being registered under the Design Act have been manufactured through an industrial process, the design is nevertheless protected under the Copyright Act. As a result, if a design is an original artistic creation and cannot be registered under the Designs Act, it is protected under the Copyright Act.

The protection provided by the Design Act is a real monopoly based on the law, not copyright protection. Although there may be some overlap between the two Acts in terms of design, no act offers the same level of protection. The Designs Act requires registration for legal protection in cases when copyright registration is voluntary. It is further stated that copyright law offers longer protection periods than design law, and any product that is unique will benefit from lengthier protection than fashion items that are mass-produced for purely economic reasons.