Keywords: Fast fashion, Designs Act, 2000, Copyright Act, 1957
Introduction
Author and journalist Lucy Siegle in the documentary ‘The True Cost’ said, “Fast fashion isn’t free. Someone, somewhere is paying.” It holds true as fast fashion manufacturers are chain retailers who look at the runways, thanks to the paparazzi and social media, create identical garments from another label, and put them in a retail environment under their own label. It is the only segment of the fashion industry that has grown over the last 15 years. As Hasan Minhaj points out in his show ‘Patriot Act’, fast fashion is popular because it has democratised high fashion. They do so by knocking off designer clothes on a large scale. The customers get a feel of couture clothes made available to them at the cheapest rates. Some of the brands in this segment are Shein (recently banned in India), Zara, Forever 21, H&M, etc. These manufacturers not only kill legacy brands but also significantly impact small ethical businesses.[i] The ethical businesses generate amounts of clothes with a few seasonal releases as they spend a whole lot of time in designing lines, buying fabrics, manufacturing and distributing, and this process can take up to 2 years, while it takes only 2 months for fast fashion manufacturers to do the same. Instead of 2 seasons a year, they have 52 seasons a year. These brands have new pieces of clothing pouring into their stores every week. These brands are not to blamed when they knockoff clothes in bulk, we as consumers are a part of the problem too. Some consumers have interest in buying haute couture collections, while others have interest in buying clothes which look like haute couture collections, but they differ a lot in terms of prices and quality, and these brands do exactly that. They copy the high-end products, tweak it a bit to escape from legal intricacies, and sell it to us in way less price, making us think in the end that we are real winners in terms of saving money, not realising that fast fashion hurts the businesses, the economy, the stakeholders including the labour and the environment too.
It is to be noted that the knockoffs are not as same as counterfeits. A knockoff is a cheap imitation of something popular. Since counterfeit is sold in an attempt to pass as the ‘original’, knockoff is a different ball game altogether. Due to loopholes in IPR laws and various judicial precedents, it is a sorry state of affairs for designers. The fashion industry in India mainly relies on two laws to protect themselves from fast fashion manufacturers. They are-
1. Copyright Act, 1957 which considers the drawings/sketches of a designer or a print as original artistic work. Hence, the designers associated with couture creations can protect their work under this Act.
2. Designs Act, 2000 which protects a design (pattern/ornament) of article through an industrial process or means The process could be manual/mechanical/chemical or combined. It is to be noted that original artistic work is excluded from this scheme.
Copyright Act, 1957
Section 15 of the Copyright, 1957 Act is relevant as it is from the perspective of the protection of design. It is a special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 2000. Section 15 (2) may apply on designs losing copyright upon more than fifty industrial productions. By perusing this Section, it is clear that there is no dual protection for outfits because if something is registered under the Designs Act, you automatically lose the protection guaranteed under the Copyrights Act. Secondly, if something is capable of being registered under the Designs Act, but it hasn’t been registered yet, it will enjoy the benefits of copyrighted work as copyright needs no registration. In the third situation, if an artistic work is copyrighted, it is specifically excluded from the purview of Designs Act, and thus, will enjoy the protection granted under the Copyright Act only. In no cases have the two acts been overlapped. However, in a situation where if a designer wants to apply industrial process on his artistic work over 50 times, and if he is unsuccessful in procuring registration under Designs Act due to various hurdles, the designer won’t be able to protect his work under either of the Acts, which will be counter-productive.
Supposing a designer has made a drawing/sketch of an outfit, that drawing/sketch will be an original artistic work and no one can unauthorizedly use it. If that designer applies the sketch into an industrial process to produce an outfit, the designer can do so not more than 50 times. If more than 50 pieces are manufactured, the copyright will no longer prevail. Then the sketch will be in the public domain and fast fashion manufacturers are free to imitate the work. It is a fair situation and fast fashion manufacturers can’t be held accountable for the wrong steps taken by the copyright owner. However, Delhi High Court went a step ahead in a case with similar facts.
In the case of Ritika Pvt Ltd v Biba Apparels Pvt Ltd, the plaintiff claimed copyright in various drawings and sketches but applied the sketch to produce outfits for over 50 times. The defendants did not copy the prints of the plaintiff as it is, they applied an industrial process[ii] on the prints to make them appear on the outfit. Thus, the Delhi High Court went a step further and held that since the print was not lifted and affixed on the outfit as it is, no case of copyright infringement is made out. This sets as a dangerous precedent for designers who create an original drawing/sketch, only for the fast fashion manufacturers to swoop in, tweak it a bit, and apply an industrial process to have that design on their clothes, without facing any penalty under the Copyright Act. This could disincentive innovation in the fashion industry.
In another case of Rajesh Masrani v. Tahiliani Design, the Delhi High Court rightly held that despite applying the industrial process on artistic work, if the owner produces only 20 outfits, which is within the limit of 50 units, the copyright will prevail.
Section 2 (d) of the Designs Act, 2000 defines the term “design” which is basically applied to an article through an industrial process. The design must be new and original. The ornamental or aesthetic aspect must appeal to the eye and the article must be reproducible by industrial means.
By bare perusal of Section 2 (d), it can be noted that artistic works are excluded from this section. Hence, if a designer wants to register a fashion design, and he wants to simultaneously produce more than 50 pieces by an industrial process, he cannot do so under Copyright Act and that’s where the jeopardy comes in. Do fashion designs at all qualify for protection by the Design Law? Copyright Act offers protection for more time than that of Designs Act. Thus, if a design is capable of being registered under designs act, the designer should immediately do so. When it comes to a design specifically meant for industrial process, the Delhi High Court in the case of Holland Company LP and Ors v SP Industries held that such designs are registrable under Designs Act. However, it is a long and tedious process for a designer to get his design registered. In the case of Crocs Inc USA v. Liberty Shoes Limited, The Delhi High Court held that for a design to be registered under the designs act, the design must not be in public domain before its registration and it must be new or original. Thus, if the novelty and prior publication hurdle can be passed, a designer may get his design registered under the designs act. Further, the Designs Act incorporates provisions for recovery of damages from any person involved in the act of piracy of registered design but puts a limit on the amount of money that can be recovered (i.e. not exceeding fifty thousand rupees), which is very inadequate for designers who create clothes worth lakhs of rupees. Moreover, Delhi High Court again went a step ahead and recognised separate copyright under designs act out of another copyright under copyright act, which the Copyright Act itself does not recognise.
In the case of Microfibres Inc v. Girdhar and co. and ors., it was held that if an original artistic work is applied on an article through industrial process, the end result produced out of it will be considered as another original artistic work will also enjoy protection under Copyright Act. If the production goes beyond 50 units, the design derived from the industrial process may also be capable of being registered under Designs Act. Thus, if a fast fashion manufacturer through an industrial process produces an outfit from an original artistic work of someone else, he might as well register it as his own design, defeating the entire purpose of the IPR regime!
The Way Forward
Designers have to be careful as to where to register their own work. If the work is meant for one-time use, the designers should register their work under Copyrights Act. If it is meant for industrial production beyond 50 units, the designers should register their work under Designs Act. And regarding fast fashion manufacturers whose business is only increasing day by day, strict laws in the IPR regime need to be introduced to protect the interest of the original creators. The laws should not discourage designers to come up with new innovations. If no protection is granted to original creators, then it will only stifle their growth. To sum it up, credit must be given only where the credit is due.
*Krina Majithiya is a 5th year law student at GLS Law College, Ahmedabad having an interest in corporate and commercial laws. For any discussion related to the article, she can be contacted via mail krinamajithiya@gmail.com.
[i] Small ethical businesses normally produce in small batches. They source their materials ethically and focus on sustainable products. They also provide transparency in designing and manufacturing clothes, unlike fast fashion manufacturers. [ii] The terms “Industrial application” and “Industrial Process” are often used interchangeably in various judgements. However, the statute specifically mentions “Industrial process”.
This article was co-edited by Arnav Maru (Co-founder and Managing editor) and Shruti Dhonde (Associate Editor).
Preferred Citation: Krina Majithiya, "Fast Fashion and IPR: The Unending Saga of Knockoffs", Arbitration and Corporate Law Review, Published on 20th July 2020.