1. 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

2. 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

3. 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

4. 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

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

6. Copyright Act, 1957 Films Dramatic Literary Artistic Sound Recording
Musical

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

8. 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

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

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

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

12. “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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

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

24. 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

25. 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

26. 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

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

28. 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

29. 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

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

31. 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…

32. 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