• Oishika Banerji

Moral Rights and digitalization: the new vogue in town


With westernization setting in developing countries like India, fashion has not only become a status symbol but also a badge of confidence for many. All kinds of clothes are available with a click on the cell phone which indeed is a detriment for the designers who are suffering unprecedented harm that must be rectified by copyright-like protection. Digitalization has indeed stepped in with pros followed by cons for this dynamic industry. Beyond the glitz of high couture, an emerging designer’s worst nightmare is to discover copies of her original designs in fast fashion‖ stores like H&M, Zara, and Forever 21.[1] The driving force that puts the reputation of designers thereby encouraging the retail stores and consumers with convenient and enjoyable methods along with cost-effectivity of purchasing products is digitalization. In order to help this industrial transformation to get mobile, the internet, which is being adopted by global mass plays a significant role, forcing and pressurizing the retailers to resort to strategies surrounding e-commerce and implementing them in business models. In the process of satisfying consumers, designers are losing their prestigious moral right in the name of industrial development.


The triggering factor in the fashion industry: the set of moral rights of the designers


Copyright is a bundle of rights and therefore if broadly placed, economic and moral rights are two notable rights that come under the radar of discussion. While the former aims to focus majorly on profit-making activity, the latter highlights the aspect of honor and reputation. Section 57 of the Copyright Act, 1957 deals with the concept of moral rights which intends to provide the creators of original work with the right to claim authorship of the work followed by the right to restrain or claim damages in respect of any distortion, mutilation, or modification of the original creation that can be prejudicial for the creator. The intellectual property regime in India lays down protection under the Designs Act 2000, the Copyright Act, 1957, and the Geographical Indications of Goods (Registration and Prohibition) Act, 1999. The three distinct legislations with distinctive traits, separately as well as simultaneously extend protection to the process and lifetime of the fashion apparel across the country. The Fashion Foundation of India (FFI) a constituted body comprising of leading designers across India, was formed with the aim to protect IP rights against unbridled copying, referencing, and inspiration. The body intends to conduct active research and studies via its Research and Analysis Cell, to throw light on different angles of the fashion industry. Alongside this, it intends to structure out a legal cell to provide assistance to various design houses in matters concerning IPR, licensing, contracts, and arbitration. With this being the domestic statute, internationally also the concept of moral right receives warmth and comfort in the legal cloth.

A sizeable number of Indian-origin designers base their creation on indigenous and traditional crafts, dyeing, block-printing, and embroidery techniques in order to carve out new designs and structures. Therefore, there arises immense relying upon and borrowing from ancient sources, methods, and techniques of culture and clothing. However, conflicts are bound to arise where ancient art forms and handicrafts are not inclusive in the IPR domain.

Eashan Ghosh, a notable intellectual property advocate, vocals out that originality in terms of its implementation surrounds the fashion domain. Simplifying his statement, he had further added that if for example, a fashion designer wishes to implicate a Jodhpuri suit that is available in the public domain, he needs to add exclusivity to the same which can provide a clear distinction between the two-piece of work. So that in times of conflict, the latter can provide exclusivity as evidence before the court of law although in these cases the destiny of the case depends majorly on the defendant’s defense. If the court of law is requested to prevent a particular pattern to be reproduced, the court can base its judgment on two kinds of orders;

· In the first case, the designer who intends to copy a particular pattern on a piece of cloth will be prevented from copying the pattern but will be allowed to work in any other way the individual desires on that piece of cloth.

· While the previous order does not restrict the freedom of an individual from making and producing clothes, in case of the second complete prevention can be imposed that would prevent the individual from designing the piece of cloth in any way he wants and also restrain him from copying the concerning pattern.

A notable effective piece of law is the injunction law. If the court delivers the first order as has been mentioned above, the defendant can be brought to negotiate within a period of six months.


Collaboration and collective effort: making digitalization friendly


Sabyasachi Mukherjee, one of India’s most loved fashion designer among the affordable, with his surprising move of collaborating with Aditya Birla Fashion and Retail Ltd, manufactures of famous Indian apparel brands including Pantaloons, by selling 51% of his label’s stake, took a step forward in reducing copy-pasting and selling off his designed clothes by many middle-class affordable shops and local market as well. The move will mark easy availability, cost-effectivity, and a wide range of consumers irrespective of earning backgrounds to purchase Mukherjee’s designed clothes and thereby maintain sustainable growth of Sabyasachi Mukherjee’s designs and art.

Famous designer, Masaba Gupta believes that for the layman, coping of designs of original designers by other designers does not amount to plagiarism but clearly a similar outfit. But the experts of the fashion domain who understands such a copying mechanism must voice out their opinions by standing not only for them but for other people in the fraternity as well. Gupta who is well-known for her extraordinary and unorthodox prints like the animals, lipsticks, and camera print, which contributes to being one of the most copied prints in the Indian fashion market, said what bothers her is not anyone copy-pasting her designs rather it is the copying of the delineation that concerns her. While copying a design and replicating the same is much easier and refuses to be controlled, the intervention of digitalization has advanced mechanisms to copy silhouettes and that becomes fundamentally responsible for infringing the moral rights of every fashion designer.

Recently, an Instagram account called 'Diet Sabya' which has got recognition for its active fashion policing took a dig at Masaba Gupta, calling out the designer for her recent collaboration with make-up brand Nykaa, by accusing Masaba of copying the packaging design of Sephora’s 'Lip Stories' collection.[2] Defending herself, Masaba Gupta with quite a firm tone provided a statement that says, “The 12 prints you see on the Masaba by Nykaa packaging are all original House of Masaba prints. Some dating back to 2009 that some of you may remember. From then until now, which marks 10 years of my label- we have never been called out because the work we have done is absolutely original. We started working on the Beauty line with Nykaa in 2017. The print is the DNA of the brand & every product we do must reflect the DNA. The same DNA that has made the brand unique.” She did not wait to criticize the whistle-blower further as she said, “he points of their existence is to make the movement so strong that it does not allow the people ripping off designs, etc, to function in the market. If this is the case and you feel so strongly about it, please call out half of Surat's printing industry, fabric shops in Bandra & Delhi Lajpat Nagar & hundreds of people out there copying my prints for the past 8 years.” A classic example of making a friendlier approach towards digitalization by collaborating as well as standing out can be reflected in Masaba Gupta’s actions.

Fashion designer, Raghavendra Rathore who has patented many of his techniques firmly believes that if his element and design which is original and distinct to his own brand if found to be copied by any other individual or label, even if the percentage of copying is not much, he still has a strong case to repair his damages. Further, Anju Modi’s recent collection, which she unveiled on her Instagram sternly warns infringers and copycats of due legal action and consequences. It is noteworthy that the awareness about copyright infringement especially when it comes to the moral rights of the creators, the fashion fraternity is quite advanced. Usage of digital platforms to protect threats of digitalization is a unique approach resorted by many in the domain.


The rising call for sui generis legislation keeping in view the expected risks


Legal theory and jurisprudence have continued to question the rationale behind intellectual property, especially where the scope of intellectual property rights (IPR) is sought to be expanded or altered to address and include an aspect of human innovation or creation under its wings.[3] The aspect of sui generis legislation keeps coming with the subconscious idea of expanding the horizon of the IPR regime. But it comes with its own flaws which are;

· Adoption of copyright exclusive for fashion design will embark the direction towards the creation of monopolies which can turn out to be oppressive in the fashion domain thereby putting a complete ban on the outflow of creativity from the emerging fashion designers.

· The principle of substantial identity will be a utopian dream for courts to implement and will most likely have terrible consequences like flippant litigation, accelerated costs for consumers, and lesser clothing styles in the public domain.

· The last being a detrimental impact that will possibly spread like forest fires creating hurdles for not only the fashion industry but also other creative industries.

The decision-making power is a great tool humans exercise and it is this tool that can help humans sail through digitalization and growing technological advancement in the world. More than the need for legislation there is a growing demand for awareness which is very well placed among few individuals from the fashion fraternity. Moral rights cannot be left to be a grey area for an industry that immensely contributes towards the economic development of a country and therefore as individuals, fashion designers should voice out their need and right to protect their honor along with using their art for economic purposes.

[1] Margaret E. Wade, The Sartorial Dilemma of Knockoffs: Protecting Moral Rights without Disturbing the Fashion Dynamic, Minnesota Law Review, https://www.minnesotalawreview.org/wp-content/uploads/2012/01/Wade_MLR.pdf [2]Diyali Banerjee, Masaba Gupta Responds To Plagiarism Allegation, Releases Statement Slamming 'whistleblowers On Social Media, Republicworld.com (August 6, 2019), https://www.republicworld.com/lifestyle/fashion/masaba-gupta-responds-to-plagiarism-allegation-releases-statement-slamming-whistleblowers-on-social-media.html [3] Pranjal Shirwaikar, Fashion Copying, and Design of the Law, 14. Journal of Intellectual Property Rights. 113, 113-121 (2009)

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