Evolution of IPR
Human rights are universal principles or standards that safeguard the virtue of human life. They establish certain human norms which are consistently protected by behavioural norms in domestic and international legislations. The Universal Declaration of Human Rights is the landmark text in the history of such human rights.
This declaration was drafted by delegates of diverse legal and cultural traditions from all across the world and adopted by the United Nations General Assembly in Paris on December 10, 1948. This is the first document at the international level that recognized Intellectual Property Rights as an essential part of human rights. It gives the member nations the right to identify IPR as legally binding as per their own choice.
Although it does not directly specify what are Intellectual Property Rights, but it is explained in Article 27(2) of this text as: “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
It means that intellectual property is a type of property that includes the intangible creations of the human mind. Thus, Intellectual Property Rights are basic human rights wherein the inventor or the author of the property claims his/her sole right for the same and hence make it authentic and authoritative.
It restricts any person other than the author to use the property for his/her own benefit without prior permission. There are various types of Intellectual Property Rights such as the Copyright which is given for literary and musical creations for a period of time, the Patent which is provided for any invention, the Trademark; the legal right of a company for a product, the Geographical Indications; available for famous products specifically found at particular places like oranges of Nagpur, tea from Assam, etc.
Such framing remarks strong protection of intellectual property as undermining and a wide range of people are thus incompatible with right obligations, particularly in the fields of economic and social rights, and cultural privileges. Both fields of law are dealing with the very fundamental question: ‘how much private monopoly power is appropriate in order to provide authors and inventors with enough resources to grow and improve whilst simultaneously ensuring that the general public has proper access to the products of their efforts?’.
The Agreement on Trade-Related Issues of Intellectual Property Rights (TRIPS) is another significant text in the recognition of intellectual property rights. The TRIPS Agreement is a legally binding bilateral agreement for all member states of the World Trade Organization (WTO). At the end of the Uruguay Round of the General Agreement on Tariffs and Commerce, TRIPS was signed between 1989 and 1990.
The General Agreement on Tariffs and Exchange (GATT) is administered by the WTO. According to WTO 10th Anniversary, Highlights of the first decade, Annual Report 2005, page 142, 25 complaints were lodged in the first 10 years, leading to TRIPS panel reviews and appeal bodies’ reports. Such basic standards common to all IPR compliance activities are set down in the Agreement.
Moreover, it includes regulations relating to civil and disciplinary processes and remedies, temporary measures, special conditions relating to boundary measures and criminal procedures, which are set out in some detail. Members shall be able to decide, under their own legal framework and procedure, the effective way of applying the terms of the Agreement.
Benefits of IPR
In my view, this is a very crucial step taken on the international level to legally recognize the original ideas and evaluate the true authors. It encourages people to explore more and get their work recognized which in turn creates enthusiasm in other people to give their bit for the purpose of development.
It also increases the nation’s stature in the world and hence eases the process of improving international ties and globalization. Giving recognition to the original creator acts as an indirect incentive just like what salary increments and promotions do to employees, ultimately increasing their work efficiency and thus the organisational profit.
Status in India
Taking India into consideration, there are 9 different types of Intellectual Property Rights, namely:
- Trade Marks- Brand Names, Brand Logos
- Patents- Inventions
- Copyrights and Related Rights- Authorship
- Industrial Designs- Appearance of Goods and Systems
- Geographical Indications- Goods of Specific Region
- Layout Designs of Integrated Circuits- Original Topographies
- Plant Varieties- Breeder of a New Plant Variety
- Information Technology and Cybercrimes
- Data Protection- Builder of a Database
The laws that govern these rights are:
- Trade Marks Act, 1999
- The Patents Act, 1970 (as amended in 2005)
- The Copyright Act, 1957
- The Designs Act, 2000
- The Geographical Indications of Goods (Registration and Protection) Act, 1999
- The Semiconductor Integrated Circuits Layout Design Act, 2000
- The Protection of Plant Varieties and Farmers’ Right Act, 2001
- The Information Technology Act, 2000
Fashion Industry and IPR in USA, UK and India
The fashion industry is growing tremendously day by day. There are new trends of showcasing oneself every now and then. There is always some uniqueness in how one makes the apparel and how the other carries it. Hence, it becomes necessary to protect this creativity to some point if not all. Consequently, the saviour here is the Intellectual Property Laws.
In the USA, although copyright law is the main shield of protection, the trademark law is widely used by the people of the industry. The garments and other accessories are not eligible for copyright protection as a whole because these are considered useful items and no monopoly can be created over useful items but their unique features and designs can be copyrighted.
This has been a controversial issue in the States. Due to this confusion, the fashion industry stakeholders in the USA are now shifting towards design patent protection, trademarks and trade dress to eventually get the whole of their creation protected even though it seems expensive and time-consuming.
The government tried to improve the regulations in order to protect the rights of the fashion designers by producing various bills in the parliament such as the Design Piracy Prohibition Act (introduced in 2009), the Innovative Design Protection and Piracy Prevention Act (introduced in 2010) and the Innovative Design Protection Act (introduced in 2012) but unfortunately, all these were lobbied because they intended to protect the outfits and accessories as a whole but did not clearly specify the required process.
Since the IPR regulations in the fashion industry are not as rigid as in any other industry in the USA, there is an increasing rise in infringement cases especially due to emerging cyber businesses, 3D printing and artificial intelligence. The government should come up with solutions straight away to avoid more hustle.
The story of protection for this industry started only in 2006 in the UK after it officially recognized the creative economy as a vital part of the national income generator. The Copyright, Designs and Patent Act, 1988 protects the interests of the fashion designers only to some extent.
There are few significant products of the industry like baby capes, cardigans, sweaters and stormtrooper helmets that can never be protected because the authority does not find them aesthetic and artistic; which are essential prerequisites for any product to be registered in the UK. Moreover, there is a lot of confusion in the statutes and their interpretation.
Some luminaries state that artistic means something that is handmade while others express that even machine-made pieces can be termed as artistic. Thus, government protection seems unreal as well as unclear to some degree. Also, there is a lot of scopes for the government to improve these legislations or else the emigration rates will increase especially for the people belonging to this industry.
Taking India into account, the laws protect the fashion industry in almost all the statutes present in small bits to eventually help the designers in protecting the whole lot. This may seem cumbersome and expensive.
For instance, the design of the garments, such as the print, can be protected under the Copyright Act, while the brand names and logos can be protected under the trademark laws, the pattern and shapes can be protected under the Designs Act of 2000, the authentic and traditional lineage of a particular place in the fashion piece can be protected under the geographical indications such as the Kanjivaram sarees of Tamil Nadu, the techniques and machinery used to manufacture the products can be protected under the Patent Act while the logistics software can be protected under the trade secrets.
The role of IPR in the fashion industry in India seems to be a full package but it is still not evolved fully as many creators are unaware of most of them.
A Comparative Analysis
Although the legal evolution of IPR protection in the fashion industry in the UK began in 2006, it was somehow working since the 15th Century in an unwritten format, especially in Paris. It was the Parisian artisans because of whom the protection in New York City in the USA started.
The USA model works with the principle of fair use exception while in the UK it is a fair dealing exception. The procedure is also more complex in the UK than in the USA. Even though the father of IPR protection in the fashion industry is the UK, both the USA and India have evolved much better than the UK both in the changes made and in the acceptance from the public.
The comparison of India with the USA and UK is a bit difficult because they work mainly under copyright while India works in all the aspects of IPR where the fashion industry is concerned.
Conclusion
As we now know that the three major countries, the USA, UK and India, recognizes IPR in the fashion industry to a very good level but still the citizens are unable to observe their rights due to a number of reasons like lack of proper vigilance in this subject, reluctance to practice their rights or the government’s state of dilemma and resistance to change.
Everybody should understand that if having possession of the place one lives is crucial then so is exercising one’s rights and possessing the sole ownership of his/her own creation.
There is still a lot of scope in the regulation of these laws or else there will be chaos in a highly demanded and rewarding industry like the fashion industry.
By Preyansi Desai, 2nd Year B.A. LL.B. (Hons.), Faculty of Law, The Maharaja Sayajirao University of Baroda, Vadodara
