Fashion Design : Economy and Intellectual Property Rights

Fashion Design

  To some extent, the huge economic value plays an important role in the protection of such incorporeal property. Some scholars treat intellectual property rights as “so-called property rights”, which is qualified as a kind of government intervention in the market place. Thus it would be appropriate to treat intellectual property rights as such in ethical and economic valuation. The protection of intellectual property rights cannot be separated from the huge economic value of the creation of human beings. According to this point of view, since fashion design is the center of a billion worthy industry, should it be protected based on the law and economy evaluation?



A. Economic Format of Fashion Design


  The basic goal for intellectual property rights is promoting incentives to creators by granting limited time of monopoly power to the creator on the creation, while protecting the public interests. Based on the traditional argument, without intellectual property protection, creators will lack incentives to create and the creative industries will wither. Under this formula, since fashion design fall into the seams of traditional intellectual property protection, currently fashion design cannot gain intellectual property protection. The fashion designers will lack incentives to create new design and the whole fashion industry will wither. However, the real fact is that although lacking in protection, designers continue to create new fashion design and the fashion industry continues to grow. The fashion industry has existed and mass-produced for hundreds of years since the beginning of 20th century, followed with the rise of new technologies like the sewing machine; and the industry is still running and expanding today. Since the fashion industry continues developing without the intellectual property protection of fashion design for hundreds of years, isn’t it nonsense to protect the fashion design now?

B. Internet Threat and Fashion Design


  Today, the rise of the Internet changed the traditional thinking of intellectual property in several ways. As to fashion design, “through the wonders of digital cameras, the Internet, and mass-production facilities in faraway lands”, the knockoffs come onto the market even before the original. With the internet broadcast of the runway show and transmitted electronically to a low-cost contract manufacturer overseas, the large-scale, low-cost copies are rapidly made. Therefore, thousands of inexpensive copies can be produced in six weeks or even less . Historically designers once accepted the unauthorized copies as a way to show how popularity of their fashion designs. Today, the fast fashion copies are totally another story because of the terrible speed of copies.


  One cannot reap from where another has sown. This is the basic morality of intellectual property. In this case, the infringers not only directly reap from the benefits fashion designers’ work, but also sell products of fashion design before the original. The phenomenon that knock offs pre-empt the market of the originator cannot be tolerated by intellectual property rights. On the contrary, the infringers steal the fashion design and sell exactly the same products, and there are no regulations to protect the fashion designers from the piracy. With the rising of the Internet, today we should think twice whether we need to treat fashion design as a subject matter under intellectual property law.




  Go back to the formula mentioned before,, owners of fashion design should compete with the fast fashion infringer without any intellectual property protection. However, the products of the fast fashion infringers are faster and cheaper than the originator of the fashion design. This is obviously an unfair competition, which is easy to see the result-- the true fashion designers will lose the game while the infringer will benefits from the unfair competition. The fast fashion infringers create nothing but they benefit from the sweat and blood of the original fashion designers. Such conduct is unfair enough that fashion designers will lack incentives to create new fashion design. There is a big possibility that the whole fashion industry will wither because fashion designers and their new design are the center of the fashion industry which can never be lost. Therefore, from the economic aspect of encouraging creativity of fashion designers, we should consider protecting the fashion design under intellectual property rights.


C. Tragedy of Commons and Fashion Design


  The Tragedy of Commons was mentioned by Professor Hardin in 1968. His article mainly talked about a dilemma, in which multiple individuals acting independently and rationally consulting their own self-interest will ultimately deplete a shared limited resource even when it is clear that it is not in anyone’s long-term interest for this to happen. If fashion design cannot be properly protected under IP law, fashion design may fells into the “tragedy of commons” with the real-time information system.


  Before the Internet Threat, fashion designers created new fashion design refer to the elements of original design in the public domain. The designers benefited from their fabulous works through selling the products based on the fashion design. At the meantime, the fashion design directly went into the public domain right after the publication. Then other manufacturers might copy the fashion design in the public domain and benefited from the productions based on the same fashion design after the genuine innovations went onto market. In such circumstance, there was no harm to the original fashion design. Moreover, the public domain was extended by the new fashion design. Fashion designers somehow liked such copying because the copying showed that their fashion design was really popular. It was more like “comedy” of commons instead of tragedy of commons because everyone benefited from the fashion design and no one was infringed or hurt.


  However, it is another story today. In the Digital Age, the broadcast of a fashion show is much easier and faster. The high speed of the diffusion of information is the background of the protection on fashion design today. Fashion designers created new fashion design. Similarly, they borrowed some elements of original fashion design in the public domain. However, the infringers immediately copied and send the fashion design to the manufacturer right after the publication, in few days, few hours or even in few minutes. Therefore, the knock offs based on the fashion design were sold onto the market in few weeks. Such conduct resulted in that infringers benefited from the same fashion design at the same time with, or even before the original innovator. Consequently, consumers might think that the fashion products from the original innovator were out of fashion as they entered the market later than the infringers. In the fashion industry, being second can even be a death blow. Because fashion products were shortlifeproducts, merely one month later could make a huge difference.