Extending Intellectual Property Protection to the Fashion Industry
The Innovative Design Protection and Piracy Prevention Act was introduced by Chuck Schumer last summer. In December, 2010 the legislation was passed by the Senate Judiciary Committee, and now currently awaits final passage in the full Senate. From the NYT, a description of the legislation:
The proposed legislation provides very limited intellectual property protection to the most original design. A designer who claims that his work has been copied must show that his design provides “a unique, distinguishable, non-trivial and non-utilitarian variation over prior designs.” And it must be proven by the designer that the copy is “substantially identical” to the original so as to be mistaken for it. The bill would cover all fashion designs, including products like handbags, belts and sunglasses, for a three-year period from the time the item is seen in public—on a runway, say. Factors than can’t be used in determining the uniqueness of a design are color, patterns and a graphic element.
But does the fashion world really need the sorts of copyright protections that other forms of intellectual property -- books, pharmaceuticals, machine -- require out of economic necessity? Kal Raustiala and Chris Sprigman argue it doesn't:
The DPPA is unnecessary because for 70 years the American fashion industry has thrived in a world of free and easy copying. To be sure, some designers are unhappy with the status quo and support the DPPA...[W]hile individual cases of harm certainly exist, intellectual property law is meant to be designed with the big picture in mind. Without clear evidence of systematic harm, the case for the DPPA is very weak.
The DPPA is also unwise. Extend copyright to the fashion industry, and designers are going to start fighting over who started a trend. Litigation of this sort is great for lawyers—and those firms who can afford good lawyers—but not great for small designers or start-ups, who can be easily cowed or crushed by a lawsuit. And in a field where many believe there is nothing new under the sun, creating monopolies in fashion designs is bound to lead to a lot of lawsuits.
And here's Reason's response to the question of whether the fashion industry needs copyright protections:
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May '10
Re: Extending Intellectual Property Protection to the Fashion Industry
Great TED talk about that.
Edited on Feb 25, 2011 at 7:15pmRe: Extending Intellectual Property Protection to the Fashion Industry
The post that you link to is part of a long term and inconclusive disagreement between Kai Raustiala and Chris Sprigman on the one side and Scott Hemphill and Jeannie Suk on the other. I think that the issue is really quite close. The positive spillovers that Kai and Chris stress are known to the industry, and they regard them as insufficient compensation for the short term drag that knock offs have on the original production.
Hemphill and Suk note that these protections are offered for other forms of intellectual property and question why it is that they should be denied here, when imitation is an implicit threat of labor. Everyone recognizes that imitation and inspiration are different things, and that this difference matters as much with style as with other kinds of derivative works. The short period, the narrow test for infringement inclines me to think that this is a sensible statute in line with other extensions of IP rights. In sum, I don't think that the argument of Kai and Chris is strong enough to displace the usual presumption in favor of intellectual property rights in the face of a clear threat of the misappropriation of labor.
May '10
Re: Extending Intellectual Property Protection to the Fashion Industry
I am working on a longish post that says a lot of current IP protections should be removed- and this one should never get off the ground. Design patents are good enough already, for anything with a life longer than one fashion season.
A lot of the current glut of IP is directly counter to the Founders intent. For a good discussion on then patent side, as usual, Russ Roberts finds the gems.
Re: Extending Intellectual Property Protection to the Fashion Industry
We would do better to restrict copyright -- which has been extended again and again so that next to nothing goes into the public domain. The justification for intellectual property is that it serves the public interest. When limited to two decades or to the lifetime of the author or creator, it serves to encourage them in their work. When extended to two or more generations, it restricts intellectual exchange. To this day, scholars cannot quote extensively from the work of T. S. Eliot in order to write about it.
Re: Extending Intellectual Property Protection to the Fashion Industry
Paul A. Rahe: We would do better to restrict copyright -- which has been extended again and again so that next to nothing goes into the public domain. The justification for intellectual property is that it serves the public interest. When limited to two decades or to the lifetime of the author or creator, it serves to encourage them in their work. When extended to two or more generations, it restricts intellectual exchange. To this day, scholars cannot quote extensively from the work of T. S. Eliot in order to write about it.
The copyright protections for fashion designs included in the aforementioned legislation
only cover three years. Do you think that's reasonable?
One interesting aspect of the fashion industry that differentiates it from other industries that rely on IP protections is its immunity from the competition of a "generic" brand. In other words, the existence of a knockoff designer purse does not lower the value of the actual designer purse. This is due to the fact that the market for knockoffs is a completely different market from that of the original designer product. I fail to see the harm that's done by copyright violations of designer fashion.
Re: Extending Intellectual Property Protection to the Fashion Industry
Cal Lawton: Great the TED talk about that. · Feb 25 at 3:30pm
Thanks for passing this along. The Reason video I posted above features a few minutes of Johanna Blakley, but this whole talk provides a very solid introduction to the subject.
Aug '10
Re: Extending Intellectual Property Protection to the Fashion Industry
That's really the problem isn't it? We've seen quite a few extensions of IP rights and very little in the other direction. I might feel better about this if we didn't also have the Copyright Term Extension Act or such case law restricting fair use as Bridgeport v Dimension.
Furthermore, what market failure is being corrected? The basic idea of IP is to allow the creator to have a monopoly to recover the costs of R&D lest we have market failure and a shortage of innovation. The idea that we have a shortage of innovation in the fashion industry is ridiculous as this is an industry that sees a large variety of new ideas put to market every fall and spring. Since it's hard to imagine that we could see more innovation the only likely result is actually less innovation as designers sat on their laurels and relied on IP enforcement rather than constantly coming up with new designs.
If there's no market failure there shouldn't be a regulation -- if it ain't broke, don't fix it.
Jan '11
Re: Extending Intellectual Property Protection to the Fashion Industry
Yes! Yes! Yes!
I once decided to hack out my own translations of some medieval Latin songs because it was easier than getting permission from the defunct publishers of the out of print book by the long dead translator whose work I wanted to use.
The present copyright system is iniquitous.
Dec '10
Re: Extending Intellectual Property Protection to the Fashion Industry
While Mr. Epstein (great mind that he is) might not find anything wrong with the current state of patent (and other IP) law, having been on the bug side of the foot/bug interface as it relates to IP, I have a different perspective.
Patents are supposed to protect companies who invest in R&D from those who would rather wait and copy (because that's a lot cheaper).
That's not how it works in practice though.
If you're a big company and you own a patent, you can use it as a cudgel to threaten your smaller competition with, even if they are not infringing you, because you know they cannot afford to defend themselves. The old "bleed 'em dry" gambit.
If you're a big company and the small company owns the patent, you can infringe it with impunity, because you can tie the little guy up in court until the end of time. A variation on the above tactic.
Continued . . .
Dec '10
Re: Extending Intellectual Property Protection to the Fashion Industry
If you are a big company and you contract with a small company that has IP that you want but won't sell it, you simply wait until they are leveraged trying to fulfill your deliberately large order, and then decline payment and buy the IP for a song at auction when they go bankrupt.
The system can also be gamed quite easily. You make your initial claims overly broad and make mistakes on the application. As time goes on, you continue to clarify the application (leaving the intentional errors in place) by applying for application extensions, adding in all the designs that your competition brings to market as time goes on. Then, when you find yourself in a sufficiently juicy position (IE you've included something major from all of your smaller competition), you fix the errors and allow the patent to finally issue. When it does, you have a patent with all your competition's IP work included in it, with an issue date that precedes their work by many years (because your patent will have an effective date of when you filed the very first application). You're then in perfect position to run all of your competition out of business, or extort from them onerous licensing fees.
All of the situations I've laid out above happened to companies that I dealt with in the paintball industry between the years 2000 and 2005.
The world of patent law is broken.
Edited on Feb 25, 2011 at 11:21pmMay '10
Re: Extending Intellectual Property Protection to the Fashion Industry
I love Prof. Epstein, and in this case, I must confess that I quake in my boots before his overpowering intellectual acumen because I almost violently disagree.
I honestly wonder if his theory on protection of IP as a "fruits of labor property right" doesn't relate to the fact that he does a loot of consulting for pharmaceutical manufacturers.
I'd better finish that little monograph.
Aug '10
Re: Extending Intellectual Property Protection to the Fashion Industry
One problem with the concept of intellectual property is that it can't even be defined without resorting to lawyers. If you steal my car, I don't need a team of lawyers to prove it: either you've got it or I've got it. But whether a patent, a trademark, a copyright, or a trade secret has been violated requires a lot of litigation. So the fact that top fashion designers believe that "on balance" they would benefit from IP protections doesn't take into account that the entire fashion industry would be lawyered up to a degree that's blissfully absent now.