THE IMPORTANCE OF THE IMPORTANCE OF COPYRIGHT IN THE COPYRIGHT IN THE

TEXTILES, APPARELS & TEXTILES, APPARELS & LIFESTYLE SECTORS LIFESTYLE SECTORS

Jyotsna BalakrishnanJyotsna BalakrishnanAnand & Anand, New DelhiAnand & Anand, New Delhi

June 2005June 2005

email@anandandanand.comemail@anandandanand.com

““DESIGNS”DESIGNS”

Functional /utilitarian

Patents Act, 1970

Purely artistic works

Copyright Act, 1957

Designs with eye-appeal & capable of

Industrial application

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

Literary

Films

Dramatic

Musical Sound Recording

Artistic

Copyright Act, 1957

“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 WHO OWNS THE COPYRIGHT IN A WORK?A WORK?

The Creator

Exceptions:Exceptions:Written agreement to the contraryEmployeeSpecially 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 A “DESIGN” UNDER THE DESIGNS ACT, 2000DESIGNS ACT, 2000

2D or 3D 2D or 3D featuresfeatures of shape, configuration, pattern, ornament, composition of lines, colours

Applied to any article by any industrial process or industrial process or meansmeans

The finished article appeals to the eyeappeals to the eye

Does not include anything which is in substance a mere Does not include anything which is in substance a mere mechanical devicemechanical 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 Copyright & Designs LawLaw

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 Copyright & Designs LawLaw

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 Copyright & Designs LawLaw

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 DESIGN Vs.Vs. COPYRIGHT COPYRIGHTDESIGNDESIGN COPYRIGHTCOPYRIGHT

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 PROCESSTHE DESIGN DEVELOPMENT PROCESS

For example, TEXTILESTEXTILES:

Sketches Engineered templates Film tracing Screens Engraving/printing Fabrication

Each on of the above works can qualify as “artistic works”“artistic works” under the Copyright Act, 1957

THE DESIGN DEVELOPMENT PROCESSTHE 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

What is Protectible- “Thin copyright”

Copyright subsists but not over the concept of the idea of the mango design/borders

WORK

STYLE/CONCEPT

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

Income generation through Income generation through ‘Licensing’‘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 COPYRIGHT SOCIETIES MODELMODEL

Practically not possible for an individual to manage licensing cost-effectively

Eg., Fashion Originator’s Guild of America

CONCLUDING POINTSCONCLUDING POINTSMaintain documentationMaintain documentation at every stage of at every stage of design & product developmentdesign & product development as it may help as it may help you to claim copyright protection even if your you to claim copyright protection even if your commercialised design is not registeredcommercialised design is not registered

Get your work registered in the Copyright Get your work registered in the Copyright Office- not necessary but advisableOffice- not necessary but advisable

Be clear on the ownership of copyrightBe clear on the ownership of copyright

Copyright notice & name of author to be Copyright notice & name of author to be mentioned wherever possible- label, packaging, mentioned wherever possible- label, packaging, invoice…invoice…

CONCLUDING POINTSCONCLUDING POINTS

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