A funny thing happens as a Congressional session comes to a close. Priorities, whether political or policy, rocket to the surface. It becomes a war of attrition, of who can keep things 'out of sight, out of mind' before people get tired and want to go home.
But, there are always numerous pieces of legislation that don’t get much love either way. The problem is, although they technically “go away” for now, the ideas behind them aren’t dead.
One we could easily miss is this year’s “Innovative Design Protection and Piracy Act.” Its focus? Bringing copyrights to fashion design. This legislation (S.3728) has been around in some form or another since 2006.
Now, I never thought I would be writing about fashion and government on opensource.com, or anywhere else, but here we are. Planet Money brought this whole issue to my attention in a short, but worthwhile piece.
Clearly, clothing and accessories, however utilitarian or avant garde, aren’t software. But, their design is still a creative endeavor, and likewise one that borrows heavily from previous works.
One of the biggest issues with the whole United States IP regime is the sameness of treatment each industry receives. The goal of IP is (should be) to balance consumer and creator welfare, hopefully allowing for the most innovation possible. But how that all actually turns out is dependent on the dynamics of those industries.
The fashion industry has largely been ignored when it comes to forms of copyright and patents (forgetting trademarks for the moment). This bill places 3-year copyright protection on apparel itself.
Offering protection to creators initially sounds good, but we know from other industries it doesn't matter how well intentioned, things can be steered too far in one direction or the other. There’s an informative chance here to design a specific IP regime for this one industry, and at the same time, ask the more important question of why even change things to begin with?
The Council of Fashion Designers of America loves this bill. They write “America is the world fashion leader, and yet it is basically the only industrialized country that does not provide protection for fashion design.”
So...we’re number one. Let’s jeopardize it.
A paper in the Virginia Law Review by Kal Raustiala and Christopher Jon Sprigman makes for an interesting read. They talk about this “Piracy Paradox” of how, if things are so bad, why are there so many options for the consumers and a seemingly endless array of successful fashion houses, retailers, and even independent designers?
“We will argue that copying fails to deter innovation in the fashion industry because, counter-intuitively, copying is not very harmful to originators. Indeed, copying may actually promote innovation and benefit originators. We call this the “piracy paradox.””
In fashion design, there’s a lot of “accepted” copying. Everyone does it and takes inspiration from others. Raustiala and Sprigman write “Design copying is occasionally complained about, but it is as often celebrated as ‘homage’ as it is attacked as ‘piracy.’” Anyone tried using the homage defense with Microsoft?
Now we get into the issue of what constitutes “new” and likewise, what constitutes infringing. The legislation says the apparel can’t be “substantially identical.”
But wait, we do get some clarification: “ ‘substantially identical’ means an article of apparel which is so similar in appearance as to be likely to be mistaken for the protected design, and contains only those differences in construction or design which are merely trivial.”
Can you imagine a judge trying to use this criteria to decide which form of aviator sunglasses is infringing, or which fur-lined boot should pay royalties to UGG?
An item is non-infringing, though, if it’s “...the result of independent creation.” In other words, although a major form of learning is being inherently connected in the fashion community, you now have a major incentive to be completely closed off.
It’s fascinating to think about how things might change, for better or worse (and I’ll admit perhaps there are some improvements that could be made), if this were to become law.
And, no matter what happens, trying to gauge the impact on consumer and creator welfare could offer a good smattering of evidence for other industries trying to change the rules they play by.
Here are six predictions for what would happen if this legislation were to become law:
1) Designers spend more time and resources on defense than design
In an effort to build off copyright provisions, designers will seek to expand their sphere of influence around a single, valuable design. They will invest countless iterations of minor tweaks to fend off anyone from encroaching on anything resembling what they initially created. They won’t use or allow the licensing of these designs, however, creating whole black holes of fashion we won’t see for three years at a time until their protection expires.
2) Rise of the fashion trolls
Whole enterprises will be formed off relentlessly pumping out and making public as many designs as they can, to maintain an offensive portfolio. Give it just a few months after this becomes law and no one, especially independent designers, may be able to design anything without running into one of these shop's landscape.
3) Big houses, who have money to shake down the “independent” designers, win
Consolidation occurs. Only a few big houses will survive. Those who have deep enough pockets to defend their designs, whether created first or not, in court will win.
Vertically, it is no longer just Donna Karen, DKNY, and DKNY jeans. But, whole conglomerates of fashion delivery enterprises will arise with ever more complicated lines for price discrimination so designs stay under the same umbrella of ownership and as much value as possible is extracted.
4) Your clothes will always be in fashion
Given the lifetime of three years protection proscribed in the legislation, the whole idea of “fashion” changes and could eventually become extinct. No longer will there be the new “it” designs as soon as we pick out what we thought was cool off the rack. The whole pace of new designs percolating through the industry will slow. We’ll never be able to play the “real or knockoff” game again, which in turn will devalue the idea of owning brand labels all together.
5) “Open fashion” movement begins
Open fashion becomes a widespread movement. Creative Commons becomes vital for designers to develop a (hopeful) counterweight to the fashion trolls. There’s a consumer backlash to purchase only “open fashion” labels and people literally wear their allegiances on their shoulder as two distinct lineages of design diverge.
6) Project Runway and related shows go off the air
Lastly, this means the end of Project Runway and all those reality shows as we know it. Could you imagine what the studio would look like if the designers had to make sure all their creations were independent acts? It would be a nightmare for producers to clear designs before each show to make sure the work was non-infringing.
Although Congress is heading home, there’s still the opportunity here to learn from both the mistakes of the software industry and the successes of the open source software movement. And, in turn, learn more about ourselves through the eyes of another creative industry. If this legislation actually ends up becoming law, the fashion police may be coming to the hackers for advice.
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