I’ve enjoyed the TedTalk we watched in class where Johanna Blakley discussed how the lack of copyright has allowed innovation and the establishments of trends in the fashion industry. Please see my final paper attached below where I discuss the topic further.
The lack of copyright has fueled huge economic gains in the fashion industry. But at what cost?
In both Canada and the US, copyright protects original, creative works and expressions, but they do not protect articles that have intrinsic utilitarian functions. Since apparel is functional and utilitarian, copyright protection cannot be obtained[1].
The purpose of copyright protection
In Canada, the purpose of copyright protection is to balance promoting public interest through the encouragement and dissemination of works of art, and to provide a just reward for the creator (Theberge). In Cinar, this purpose was refined; the purpose of the Copyright Act “seeks to ensure that an author will reap the benefits of his efforts, in order to incentivize the creation of new works. Similarly, in the US, the goal of copyright law is “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective Writings and Discoveries” (US Constitution).
Lack of copyright protection has increased innovation in the fashion industry
In Johannah Blakley’s 2010 article, The Costs of Ownership, she explained that the lack of copyright protection in the fashion industry has actually increased innovation by allowing a designer to freely sample from others[2]. The lack of copyright protection has allowed fashion designers to be as creative as possible. Any designer can take ideas from others and incorporate various combinations into their own designs. This has allowed trends to establish, forcing designers to innovate speedily and in creative ways so that their designs become more difficult to be copied[3]. For example, in 2008, luxury shoe designer, Weitzman, created the Bowden-Wedge shoe, made of titanium, designed such that it would be difficult for others to copy[4]. It is this establishment of trends, fueled by the lack of copyright, that has allowed increased economic success in the fashion industry. Today, in the US, the fashion industry is valued at approximately $369.39 billion[5]. Large fast-fashion brands such as Zara and H&M play a significant role in the fashion industry and they are given competitive advantages as a result of the lack of copyright protection. Since these fast-fashion brands can copy to quickly adapt to current trends, they can succeed with relatively low research and development costs per clothing item. In combination with economies of scale, they can sell their products at low prices, allowing a broader range of the consumers to participate in trends. All of these factors have led to the economic size of today’s fashion industry.
The costs of these huge economic gains
There are also large costs to the economic gains in the fashion industry. Although the costs I discuss below are indirectly fuelled by the lack of copyright and may have manifested as a result of a combination of external factors, it is still important to acknowledge the unintended consequences that arise in connection with lack of copyright.
i. Smaller designers are having a harder time staying in the market
There has been immense pressure on fashion designers to stay ahead of the fast-fashion companies and copycats. This pressure is even greater for smaller and up-and-coming designers who do not have an established brand. While the success of fast fashion has helped grow the global fashion industry exponentially, smaller designers are increasingly priced out of the market[6]. They cannot compete with the fast and cheap fast fashion companies. The craft of garment-making takes a lot of skill and time for designers[7]. Meanwhile, due to the lack of copyright, fast-fashion companies can cut down on design costs by taking ideas from others. For example, in a July 2021, the designer behind a Black-owned fashion brand called Elexiay had tweeted that the fast-fashion brand Shein had taken their crochet sweater design[8]. Elexiay hand-makes their sweaters in Nigeria and sells them for $330. Shein sold an identical sweater for $17 (see screenshot of tweet). The lack of copyright may have increased innovation, but the profits from this are disproportionally reaped by the large companies who have economies of scale and can sell their goods at a low price. Ironically, while the lack of copyright has made it easier for designers in the sense that they do not need to worry about securing licenses or being sued for using another’s designs, more and more small designers are being priced out of the market altogether.
ii. Environmental waste and labour violations
The establishment of trends has also trained today’s average consumer to search for low prices rather than quality, long-term clothing, resulting in an excess consumption of clothing. First, this generates large volumes of environmental waste. The fashion industry produces 92 million tons of textile waste per year, and 85% of all textiles end up in landfills each year[9]. Second, corporations are pressured to move at lightning speed to manufacture the clothing. Each piece of clothing requires manual labour, majority of which comes from low-skilled workers, including children. The race to make trendy pieces encourages corporations to churn out large volumes of clothing, requiring workers to work long hours under harsh conditions and low wages. Labour violations, especially of workers in developing-countries that eventually supply garments to the fast-fashion companies, are not uncommon[10].
It is not the role of copyright to be a regulator for these unintended consequences
These are a few of the unintended and indirect consequences of the lack of copyright in the fashion industry. But is it copyright’s role to step in? Isn’t it the fault of the other systems in place, such as employment law and environmental law, that are supposed to serve as checks-and-balances? The purpose of copyright is to incentivize creators to create works that the public can eventually benefit from. Based on how innovative designers have become and how quickly trends are able to come and go, adding copyright protection will not serve this purpose so it doesn’t make sense to add copyright protection in the fashion industry. Also, it is not the role of copyright law, nor should it be, to step in as a regulator to bring about long-term changes in other areas of law. If the objectives of copyright law are widened to take into account too many considerations, then the objectives will become too broad and ambiguous, and it will be difficult to prioritize. Thus, it is the responsibility of the other areas of law to find ways to mitigate the consequences that might arise. However, I do believe that it is important to acknowledge how the unintended consequences of the lack of copyright can affect many other aspects of the law so we can have a fuller understanding of the bigger picture and how the different areas of law are interconnected.
[1] How the Lack of Copyright Protections for Fashion Designs Affects Innovation in the Fashion Industry (essay – Trinity College) https://digitalrepository.trincoll.edu/cgi/viewcontent.cgi?article=1370&context=theses
[2] The Costs of Ownership: Why Copyright Protection Will Hurt the Fashion Industry https://designobserver.com/feature/the-costs-of-ownership-why-copyright-protection-will-hurt-the-fashion-industry/15078
[3] Ibid
[4] Should Clothing Be Copyrighted? https://medium.com/@deryaturan/should-clothing-be-copyrighted-73574c7f4fce
[5] 28 Dazzling Fashion Industry Statistics [2022] https://www.zippia.com/advice/fashion-industry-statistics/
[6] The Impact of Fast Fashion https://outandaboutnow.com/the-impact-of-fast-fashion/
[7] ibid
[8] Why Indie Brands Are At War With Shein and Other Fast-Fashion Companies https://www.npr.org/2021/07/20/1018381462/why-indie-brands-are-at-war-with-shein-and-other-fast-fashion-companies
[9] What Is Toxic Fast Fashion and How Does It Impact the Environment? https://greenbusinessbureau.com/industries/fashion/what-is-toxic-fast-fashion-and-how-does-it-impact-the-environment/#:~:text=Even%20greater%2C%20the%20fashion%20industry,%24400%20billion%20wasted%20per%20year
[10] Human Rights Violations Are Increasing in Fashion’s Manufacturing Hubs https://www.businessoffashion.com/news/sustainability/human-rights-violations-are-increasing-in-fashions-manufacturing-hubs/
Communications Law