Difference Between Copyright and Design in the Fashion Industry – An Overview

In India, the Fashion industry has rapidly grown and has now become the most affected industry when it comes to seeking lawful protection against duplication and illegal use of the products they design. Since there is no authorised body in the fashion industry that regulates or governs this industry, it creates confusion and misunderstanding among the start-ups as to which governing law one should be looking for the registration of their products. Whereas the Copyright Laws safeguard the original literary or artistic work, the Indian Designs Act safeguards the different & original Design related to the looks and designs rather than the functionality. Scroll down to check the difference between Copyright and Design Laws in the fashion industry.

What is the Importance of Copyright and Design Protection in the Fashion Industry?

With the rapid growth of the fashion industry around the world, the new fashion designers or start-ups need to get their innovative, unique, and original works safeguarded under the relevant figure, as it not only protects the creative or innovative elements of the artistic work and/or unique Design but also protects them from the violators with legal remedies. It offers domination on a product for a limited time period and freedom to create more unique and distinctive designs & products.

Difference Between Copyright and Design

Both Copyright and Design Law provides various types of protection. The Copyright Law includes a wide variety of rights and extensive protection to the fashion industry, and the Design Act gives limited protection. You can check the difference between them:

1. Design is a legal right and not an intrinsic right. The Design Act offers protection only after Design Registration. Whereas, Copyright is a law that protects the work from the moment it comes into existence; that’s why it is considered as an intrinsic right.
2. A design loses its uniqueness if it catches the public’s eye without Design Registration, whereas Copyright can be registered even after intimation to the public.
3. It is recommendable to get Copyright Registration; however, it is not compulsory to get such legal protection under the Copyright Act. Whereas, any design which is not registered under the Design Act cannot seek legal protection under Design Act. So it is necessary to get Design Registration to avail any legal protection or exclusive use of a design.
4. The term of Copyright protection is usually for the lifetime of the actual owner, i.e., 60 years. At the same time, the Design protection is valid for 10 years, which can be extended for more than five years.
5. The final products that can be applied to work come under the purview of the Designs Act, whereas, Copyright exists in the individual artistic work even if it has not been applied to an article.
6. An original or novel artistic, dramatic, musical, literary work, sound & visual recording, and cinematograph film are safeguarded under the vision of Copyright Law. In the case of Design, only unique and original Design is safeguarded under the vision of the Designs Act.

Protection under Copyright and Design Law in the Fashion Industry

• Protection under Designs Law: Under the Intellectual Property Law, the appearance of a product comes under the area, and the protection of the Design Law in India, is regulated by the Industrial Design Act, 2000. This Act safeguards the creation of original designs while giving protection against any infringement thereof. The originality lies in the shape & form of the Design, and it can be a unique mixture of patterns & lines or an uncommon combination of colours. Design Protection can be secured in various types of designs, be it for leisure or an industrial item (automobiles, clothing, etc.), as mentioned under Section 2 (d) of the Designs Act. There are some designs that cannot be registered and are specified under Section 4 of the Design Act.

A registered industrial design is valid for only ten years, which can be further renewed for the next five years, beyond which the Design shall lose its exclusiveness and will become part of the public domain. Since it’s a territorial right, it can be protected only in India. But, in case of protection is sought in any other country, a separate application must be prepared as per the procedure and fees of the respective country or boundary.

• Protection under Copyright Law: Copyright safeguards the creative work of artists & designers in the form of artistic works explained under Section 2 (c) of the Copyright Act, 1957^[1] in India. According to the Copyright Law in India, Copyright Registration is not compulsory for an original work; it comes under the vision of Copyright Law the moment a creative work is created and given a physical form. Registration of Copyright doesn’t present any exclusive rights regarding the artistic or creative work; but, the Registration Certificate acts as proof of the uniqueness of work in the court of law.

Copyright and Design – Registration Process

• Copyright: Although it is not compulsory to get Copyright Registration, but it is advisable to get it. During Copyright Registration, an applicant of the owner must file the Form XIV or digitally before the Copyright Registrar, based on the type of Copyright work. In case, the applicant is filling the application by their advocate, a PoA or Power of Attorney along with the form and fee along with the owner of the artistic work’s details.
• Design: To register a design, the applicant must file the application for Design Registration in Form 1 along with the fees. Form 1 shall comprise the creator’s full name, complete postal address, nationality, contact details, email id, article’s details, including its name, category/class number as recognised under the Locarno Classification. The candidate or their representative has to send the physical copy of Form 1 if they have applied earlier online.

Conclusion

After discussing the difference between Copyright and Design, it is concluded that the protection granted by the Design act is not Copyright Protection but a true monopoly based on the statute. Although there might be an overlap between the Copyright Act and Design Act concerning Design, these two statutes don’t provide the same protection. Where the Copyright is voluntary, the Designs Act mandates registration for statutory protection.

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