Jyotsna Balakrishnan Anand & Anand, New Delhi June 2005 THE IMPORTANCE OF COPYRIGHT IN THE TEXTILES, APPARELS & LIFESTYLE SECTORS Jyotsna Balakrishnan Anand & Anand, New Delhi June 2005 email@anandandanand.com

eye-appeal & capable of Industrial application “DESIGNS” Purely artistic works Designs with eye-appeal & capable of Industrial application Functional / utilitarian Patents Act, 1970 Copyright Act, 1957 Designs Act, 2000

THE COPYRIGHT/DESIGN OVERLAP Fashion design lies at the cusp between “creativity” and “industrial manufacture” For example, in the apparel industry many designers have crossed the boundaries between “wearable art” and “wearable apparel” Thus, the distinction made by law between “purely artistic works” and works that have been commercialised can be problematic in many cases

LIMITATIONS OF PROTECTION OFFERED BY DESIGNS LAW A design needs to be registered for any kind of rights to be claimed over it – it may not be feasible to register every design that is created by designers A design right cannot be claimed over a design that has been published/disclosed to the public A design right will only be granted on the fulfilment of various criteria like “novelty”, eye appeal and non-functionality

PROPERTY RIGHTS Physical property right Intellectual property right Both are independent & mutually exclusive

Copyright Act, 1957 Films Dramatic Literary Artistic Sound Recording Musical

“ARTISTIC WORKS” A painting, sculpture, drawing, engraving, ….whether or not possessing artistic quality Any other work of “artistic craftsmanship”

COPYRIGHT – A BUNDLE OF RIGHTS Economic Rights Reproduce or make copies Issue copies- sell, distribute, etc . Display to public Adapt Assign/License Moral rights Right of acknowledgement Right to object against mutilation /distortion of work

COPYRIGHT Term of protection - Life + 60 years Copyright subsists worldwide - BERNE Convention No necessity for registration though it is advisable to register

REQUIREMENTS OF COPYRIGHT PROTECTION “Originality” – it should originate from the author – product of independent creation “Fixation” – should be expressed in a material form

WHO OWNS THE COPYRIGHT IN A WORK? The Creator Exceptions: Written agreement to the contrary Employee Specially commissioned work Made for valuable consideration

“ARTISTIC WORKS” A painting, sculpture, drawing, engraving, ….whether or not possessing artistic quality Any other work of “artistic craftsmanship” Also capable of protection under Designs Act

A “DESIGN” UNDER THE DESIGNS ACT, 2000 2D or 3D features of shape, configuration, pattern, ornament, composition of lines, colours Applied to any article by any industrial process or means The finished article appeals to the eye Does not include anything which is in substance a mere mechanical device Not an artistic work or trademark

COPYRIGHT / DESIGN OVERLAP There will be works that are both protectible under copyright law as well as under designs law Indian law has tried to resolve this by the provision of Section 15(2), Copyright Act, 1957 – makes the position more anomalous

SECTION 15(2), COPYRIGHT ACT, 1957 Copyright does not subsist in design registered under the Designs Act Design capable of being registered, but which has not been so registered - copyright shall cease as soon as any article to which the design has been applied more than FIFTY TIMES by an industrial process

Copyright & Designs Law It may not be practically possible for a designer to get all his designs registered Under the present framework, functional designs can claim full copyright protection but non-functional, aesthetic & novel designs that are not registered designs, lose all protection – highly anomalous

Copyright & Designs Law Designs that are not commercialised (i.e., not produced more than 50 times), enjoy full copyright protection even if not registered as a design It may be argued that a design that has been commericalised, may be capable of protection under Copyright Act on the basis of the underlying artistic works (i.e., the sketches, engravings, prototypes, etc.) though Section 15 (2) remains a bar

Copyright & Designs Law It is therefore important to maintain documentation and records at every stage of product design and development as this may help in claiming protection for a design under the Copyright Act, 1957 Also, once you are seriously thinking of getting into mass production of a design, file a design application as that would provide you stronger protection & complete monopoly

DESIGN Vs. COPYRIGHT DESIGN COPYRIGHT Complete monopoly Only protects against copying Need to register to claim protection Subsists inherently Has to be “NEW” No requirement for novelty Maximum 15 years Life of author + 50 years Only in respect of goods registered for Is not goods specific

THE DESIGN DEVELOPMENT PROCESS For example, TEXTILES: Sketches Engineered templates Film tracing Screens Engraving/printing Fabrication Each on of the above works can qualify as “artistic works” under the Copyright Act, 1957

THE DESIGN DEVELOPMENT PROCESS Hi-fashion furniture/metal ware: 2 D drawings Prototype 3 D model Silver prototype Final 2 D drawing Apparels: Sketch Dressmaking pattern Prototype/sample garments Finished garment

SUCCESSFUL COPYRIGHT INFRINGEMENT CLAIMS ON THE BASIS OF UNDERLYING ARTISTIC WORKS- RITU KUMAR’S CASES Ritika Limited v. Ashwani Kumar Ritika Limited v. Nina Talukdar Ritika Limited v. Sajid Mobin

SUCCESSFUL COPYRIGHT INFRINGEMENT CLAIMS ON THE BASIS OF UNDERLYING ARTISTIC WORKS- RITU KUMAR’S CASES

CASES WHEREIN RIGHTS HAVE BEEN CLAIMED OVER THE UNDERLYING WORKS OF DESIGNS Design protection claimed by Ravissant for the design of the champagne stand on the basis of copyright over the underlying sketches and prototypes Temporary order of restraint has been granted - case is pending before the Delhi High Court

What constitutes Infringement? Any reproduction reproduction reproduction, use , distribution, performance, etc. of the work without the permission of the copyright owner. An identical or substantial similar reproduction is also covered Infringement – Damages - Injunction

COPYRIGHT PROTECTION It merely protects the expression of an idea in tangible form Copyright does not protect the idea itself Add characteristics of Tanjore painting: Use of gold leafing; the depiction of Lord Krishna as an infant

What is Protectible- “Thin copyright” Copyright subsists but not over the concept of the idea of the mango design/borders STYLE/CONCEPT WORK

FAIR USE- THE BALANCING FACTOR IN COPYRIGHT LAW Fair use – exceptions to the exclusive copyright – educational, news, commentary Use of a work in a cinematograph film for incidental purpose Fair use determinants are purpose & character, substantiality & effect

Income generation through ‘Licensing’ All or part of the Bundle of Rights can be licensed Permission, on payment of a royalty Can be limited to specified term, territory, uses and markets

COPYRIGHT SOCIETIES MODEL Practically not possible for an individual to manage licensing cost-effectively Eg., Fashion Originator’s Guild of America

CONCLUDING POINTS Maintain documentation at every stage of design & product development as it may help you to claim copyright protection even if your commercialised design is not registered Get your work registered in the Copyright Office- not necessary but advisable Be clear on the ownership of copyright Copyright notice & name of author to be mentioned wherever possible- label, packaging, invoice…

CONCLUDING POINTS If you seriously contemplate getting into mass production of a design, put in a application for design registration – gives you full monopoly over the design