Copyright in Fashion Industry

The present article is written by Sagnik Bhaumik,from S.K Acharya Institute of Law,Kalyani University during his internship at LeDroit India; discussing about how fashion industry protect its design and hardwork through copyright laws in India.

INTRODUCTION

  Copyright is a kind of intellectual property by means of which the owner enjoys the absolute rights on his or her creation. Indian Copyright Act, 1957 is in force in our country that protects the rights of the owner of those copyrighted works. This Act prescribes the provisions to determine the 1st ownership of copyright in various categories of copyrights, terms of copyrights, assignments of ownership and licensing (including compulsory licensing), author’s rights, legal remedies for any contraventions or infringements, etc.

  In India, fashion designs can be registered as copyright if those designs come under the meaning of “artistic works” as defined in sec 2(c) of INDIAN COPYRIGHT ACT, 1957.

  Section 2(c) of the Indian Copyright Act, 1957 discuss about the provision regarding “artistic work” which means and includes- 

  1. a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; 
  2. work of architecture; and 
  3. any other work of artistic craftsmanship;

 Any design of the author’s own creation which is not registered earlier, can be registered if the authorities under these Acts think fit to grant permission after fulfillment of all the legal requirements as mentioned in the laws of the land.

LEGAL PROVISION – 

Generally 2 Acts are in force within in the territory of India to deal with copyright in any fashion design. Those are —

  1. Indian Copyright Act, 1957
  2. Design Act, 2000.

SECTION 15 OF INDIAN COPYRIGHT ACT

“Special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 1911:——–

  1. Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 1911.
  2. Copyright in any design, which is capable of being registered under the Designs Act, 1911, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his license, by any other person.”

So, section 15 of this Act clearly emphasize on the inter-relation & inter-connection among the provisions of those 2 abovementioned Acts. But one can’t register his design under both the Acts at the same time. Section 2(d) of the Design Act, 2000 specifically defines the term “design” as mentioned hereunder. 

SECTION 2(d) OF DESIGN ACT

“Design” means “only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 or property mark as defined in section 479 of the Indian Penal Code or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957” 

REGISTRATION OF DESIGNS

Section 3-10 of the Design Act upholds the provisions regarding the registration of any design and each and every aspects of it.

Section 3 prescribes the power & functions of controller and other officers appointed by the Central Govt. 

Section 4 prescribes some bars in registration of designs –

  • if those are not the new and original work or 
  • if it has been disclosed to the public anywhere in India or in any other country by publication in tangible form or by use or in any other way prior to the filing date, or where applicable, the priority date of the application for registration; or 
  • is not significantly distinguishable from known designs or combination of known designs; or 
  • comprises or contains scandalous or obscene matter shall not be registered

So, if any of those abovementioned breaches or contraventions are found then the application of registration of those designs filed under section 5 of this Act will be immediately rejected by the authorities. And if all those criteria are complied with and if the authorities under this Act think fit, then the registration will be accepted and the certificate of registration will be issued under section 9.

COPYRIGHT IN REGISTERED DESIGNS

Section 11 – 20 i.e. Chapter III of tis Act prescribes the effects of registration as copyrights.

Any registered designs can be copyrighted for 10 years from the date of registration as mentioned in section 11. However it can be further extended for a term of another 5 years even after the original period of 10 years.

Moreover, the owner of the design can even restore his or her copyrights by invoking section12 by paying the due prescribed fees under section 11(2).

Section 19 of this Act offers the process of filing an application of cancellation of  registration Any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely:- 

  • that the design has been previously registered in India; or
  • that it has been published in India or in any other country prior to the date of registration; or 
  • that the design is not a new or original design; or 
  • that the design is not registrable under this Act; or (e) it is not a design as defined under clause (d) of section 2

LEGAL PROCEEDINGS

Section 22 of this Act makes it a punishable offence if any person knowingly & with wrongful intention is being involved in piracy in respect of any registered design.

If any person acts in contravention of this section, he shall be liable for every contravention- 

  • to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or 
  • if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: 

However, the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees:

CONCLUSION

From the previously mentioned aspects of the copyright in fashion design, it is to some extent clear that – for the fashion designers of our country 2 circumstances may appear to protect their design –

  1. Designs capable of being registered under Design Act, 2000, &
  2. Designs not capable of being registered under Design Act

In both the cases, effective remedies are available ….. 

In the 1st case, the designer has 2 options to registered – 

  1. either under the Design Act, 2000 as per sec 15(1) of this Act,
  2. or to protection under Indian copyright Act, 1957 as per section 15(2).

In the 2nd case, if the designer has not registered under Design Act, even then he will have another opportunity to register under Indian Copyright Act as per sec 13.

So, in our country the rights of the fashion designers or any individuals associated with the fashion world, are effectively protected by Indian laws. Those person’s hard-work, dedications, skills, spirit and innovations are recognized & secured in the eyes of law.

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