Lagos, like London, Milan, New York and Paris, is a fashion hub. With brands like Heineken and GTBank, and the Bank of Industry putting their weight behind the fashion industry, it is safe to assume that the distant cousin (fashion) in the creative industry just got an invite to the family party. There is no doubt that beyond making us a fashionable people, the fashion industry cannot be ignored as a vehicle for driving economic development.
There is a reason why I have referred to the fashion industry as the distant cousin. Whereas other disciplines like music and visual arts have clear intellectual property protection through regulation in most jurisdictions, fashion does not enjoy the same level of protection. The intuitive position is that fashion design
should be protected just like any other creative area, but it is not! Let me give you a minute to sit down and absorb this information if it is news to you.
The Nigerian Copyright Act (Chapter C28, Laws of the Federation of Nigeria) is the regulation under which most disciplines in the creative industry derive their intellectual property protection. Section 1 of the Act details the types of works that are eligible for copyright and these are: literary works, musical works, artistic works, cinematographic works, sound recording and broadcasts. Section 1(2) goes further to say that a literary, musical, or artistic work shall not be eligible for copyright unless the work is original and has been put into a fixed medium of expression. So far, so good, you may think. When we think of fashion design these days, you would be hard pressed to find someone who does not think that it requires some creativity and qualifies as an artistic expression of the creator/designer. But section 1(3) comes in with a hammer to strike down the intuitive position. That section provides that, “[a]n artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.”
Finding no joy with the Copyright Act, the next place a creative person might look to for IP protection would be the Patents and Designs Act (Chapter 344, Laws of the Federation of Nigeria 1990). Section 12 of the Patents and Design Act provides that, “Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result.” Once the design scales the definition hurdle in Section 12, it will then have to scale the Section 13 hurdle two of which require that the design be new and not contrary to public order or morality. Fabric designs and patterns could easily fall under Section 12 protection. But section 13(5) provides that, “[a]n industrial design is not new merely because it differs in minor or inessential ways from an earlier design or concerns a type of product other than the type with which an earlier design is concerned.”
Copyright law generally excludes artistic expression of things that fall under the class of ‘useful articles.” Functional materials do not enjoy the same protection no matter how creative their authors have been. The expression of creativity in fashion design is not separable from the useful function of clothes. At the end of the day, the off-shoulder dress, asymmetric-cut skirt, cowl-neck dress, all serve one purpose, to cover our nakedness. While the designer’s sketch for the garment may be protected by copyright law, the actual garment does not enjoy the same protection. Many national copyright laws are influenced by the provisions of the Berne Convention. Although some people suggest that fashion design is implied in the Convention, it does not include fashion design in the list of what is considered “literary or artistic works”. The World Intellectual Property Organisation (WIPO) has not expanded the interpretation of the Berne Convention to include fashion design.
Apart from the definition hurdle, seeking protection under the Patents and Design Act is not the most practical option. Anyone who has tried to get a patent can attest that the process can be lengthy and expensive. Digital technology has made it possible for knock-offs to reach the market much faster than the original so that while original creators are battling for protection under the Patents and Design Act, the copycats would have flooded the market with their copies and reaped the benefits of the design. Fashion is too fast-paced for protection under that regime. The fashion industry needs its own regime and some jurisdictions recognise that and have taken necessary action.
But all is not lost for the fashion designer. Some areas rend themselves more easily to protection than others. For instance, under trademark protection, brands like Louis Vuitton, Burberry and Christian Louboutin have their distinguishing marks (logo, plaid design, red bottom sole, respectively) incorporated into their designs. Despite these limitations top designers have been able to secure court rulings against copycats even in the United States where, like Nigeria, there are no specific laws protecting fashion. In the jurisdictions where the laws are lagging behind, lawyers for design owners have to be inventive in seeking remedies for clients whose designs have been stolen by copycats.
This is not a problem peculiar to Nigeria, although as the fashion industry in Nigeria raises its game in terms of creativity and output, it is a problem that players in the industry will have to pay attention to and push for action so that regulations catch up with the needs of the industry. There is guidance from the European Union which has protection for fashion design under a regime that provides for registered and unregistered protection. Registered designs enjoy a protection of five years (renewable for four additional five-year renewable terms) while unregistered designs are protected for three years. In the US, there is the Design Piracy Prohibition Bill, which proposes protection for three years. While the Bill has been pending for some time now, it could still give some direction for how we choose to proceed in Nigeria.
Punch
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