Vol.2, Issue 34, September, 26 2009
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SPOTLIGHT |
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| Copyrights Intellectual property vis-à-vis textiles and clothing industry This is a primer to a series of articles on intellectual properties rights (IPRs) with specific emphasis and focus on the textile and clothing industry. It is to build a sense of awareness with a view to capitalise on the intellectual property. Intellectual property rights can be divided as traditional IPRs and non-traditional IPRs. Traditional IPRs are copyrights, industrial designs, trademarks and patents. In the recent years, numerous non-traditional IPR have also found and gained prominence -- especially in the field of textiles and garments. Some such intellectual properties are geographically indications (Pochampally ikkat and Kanjeevaram saris), traditional knowledge (Kashmiri carpet making techniques), indigenous people and community rights. In this article, we briefly touch upon one of the traditional IPR -- namely copyright -- to lay a foundation on which to build a super structure for dealing with more complex and interesting issues. Copyright is one IPR which has a direct and immediate bearing in the textile and garment industry. A copyright gets vested in an artist/author the minute a new garment is designed by the designer, worked by a worker, displayed and sold by a retailer. In fact, there are a bundle of rights within copyrights that get created. So, what is the copyright? Copyright is a right vested in an author (a generic term to define an artist, designer, writer, performer etc) for any “original” work created by such an author. To define if a work is “original” the test is if sufficient skill or labour or talent has gone into the work to merit protection under the Copyright Act in order to secure copyright protection, the author must have put in sufficient judgment, skill and labour or capital. As observed in Walter v Lane (1900) AC 539, it is immaterial whether the work is wise or foolish, accurate or inaccurate or whether it has or has not any literary merit. To borrow words from Halsbury’s laws of England, “Another person may originate another work in the same general form, provided he does so from his own resources and makes the work he so originates a work of his own by his labour and industry bestowed upon it.” Thus, a painter painting a picture, a photographer taking a photograph, a singer singing a song, a dancer performing an act, an actor acting are all expressions of original art forms and protectable under the Indian Copyright Act, 1957. Take note for the work to be original, the work need not be “new” or “novel” or “never thought before.” The work just needs to be original. Thus, an author such as Mr Ashok Banker writing a new version of Ramayana will result in creation of copyright with Mr Banker. The protection conferred is for the manifestation of the idea, not for the idea itself. Interestingly, unlike all the other IPRs (barring a few non-traditional IPRs), for the purpose of protection, copyright is a worldwide right and enforceable in most of the countries without a requirement of actually having registration or use in the particular country where the rights are being enforced. This is because most of the countries of the world are members of the Berne Convention which provides the same right to member states in their respective countries as to a national of the country. To take an example, drawings to make a dress would amount to an artistic work capable of being protected under copyright laws. Similarly, three dimensional products made from two dimensional drawing are protectable as copyrights. Designers such as Ritu Kumar, J.J. Valaya and Tarun Tehlani have realised the significance of copyright and have been using their rights to take action against infringers as well as to create exclusivity around their designs. Ms Sharmila Roychowdhury |
| APPAREL EXPORT PROMOTION COUNCIL - | www.aepcindia.com | With contribution from |  |