• Monday, June 17, 2024
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Intellectual property theft in Nigerian fashion: A deeper look

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Lagos is fast becoming a force to be reckoned with in the world of fashion, joining the ranks of established hubs like London, Milan, New York, and Paris. Major brands like Heineken, GTBank, and the Bank of Industry are throwing their weight behind the industry, suggesting it’s no longer the “distant cousin” of the creative scene.

However, fashion’s potential goes beyond simply making us look good. It is a powerful driver of economic development. Here is the catch: the industry lacks the same level of intellectual property protection as other creative fields like music and visual arts.

Shocking, right? Unlike those areas, fashion design often goes unprotected by regulations in most jurisdictions. It is time for a change. Fashion deserves the same level of respect and legal safeguards as other creative endeavours.

Nigeria’s Copyright Act (Chapter C28) offers intellectual property protection for various creative fields. Section 1 details eligible works, including literary works, music, art, film, sound recordings, and broadcasts. Section 1(2) clarifies that originality and a fixed form of expression are prerequisites for copyright protection.

Here is where fashion encounters a legal hurdle. While most would agree fashion design requires creativity and qualifies as artistic expression, Section 1(3) throws a wrench in the works. This section denies copyright protection to artistic works “intended by the author to be used as a model or pattern to be multiplied by any industrial process.”

This clause essentially excludes fashion design from copyright protection because clothing designs are intended for mass production. The intended use of a design, in this case, becomes the barrier to legal protection, despite the undeniable creativity involved.

Struck down by the limitations of the Copyright Act, a Nigerian fashion designer seeking intellectual property protection might turn hopefully to the Patents and Designs Act (Chapter 344). Section 12 seems promising, defining an “industrial design” as a combination of lines, colours, or shapes intended for mass production. This could potentially encompass many fashion designs.

However, this initial hope is quickly dashed by Section 13, which outlines the hurdles a design must overcome. The design must be demonstrably new and not violate public order or morality.

While fabric patterns and prints might find shelter under Section 12, Section 13(5) throws another curveball. Here, the Act states that a design isn’t considered “new” simply because it differs slightly from an existing design or targets a different product category. This clause makes it incredibly difficult for many fashion designs to achieve protection under the Patents and Designs Act.

The current legal framework in Nigeria leaves many fashion designers vulnerable to copycats. Their creative works, often the heart and soul of their business, lack proper safeguards.

Copyright law, designed to protect artistic expression, often stumbles when it comes to fashion design. The issue? The inherent utility of clothing. Copyright typically doesn’t cover “useful articles,” no matter the designer’s ingenuity.

A fashion design’s creative essence can’t be easily separated from its functional purpose – to clothe us. The off-the-shoulder dress, the asymmetric skirt, the cowl-neck creation – all serve a basic function: covering the body. While a designer’s sketch might be protected by copyright, the actual garment itself falls into a legal grey area.

This complexity extends beyond national borders. Many copyright laws draw inspiration from the Berne Convention, an international treaty. While some argue fashion design is implicitly included, the Convention itself doesn’t explicitly list it as a “literary or artistic work.”

Furthermore, the World Intellectual Property Organization (WIPO) hasn’t broadened the Berne Convention’s interpretation to encompass fashion design.

The result? A legal labyrinth for fashion designers. Their creative works, the lifeblood of their business, lack robust legal protection. This vulnerability leaves them open to copycats, hindering innovation and growth within the fashion industry.

While the legal landscape for fashion design can be frustrating, there are strategies designers can employ. Trademark protection offers a path forward for distinctive brand elements. Think of the iconic Louis Vuitton monogram, Burberry’s plaid pattern, or Christian Louboutin’s red soles – all protected trademarks seamlessly integrated into their designs.

Even in jurisdictions like Nigeria and the US, where specific fashion design protection laws are absent, savvy designers have found success. Courts have issued rulings against copycats based on a combination of existing legal frameworks. Fashion lawyers have become adept at crafting creative arguments to defend their clients’ work.

This lack of specific protection isn’t unique to Nigeria. However, as the Nigerian fashion industry flourishes in creativity and output, advocating for legal reform becomes crucial. The European Union offers a potential model with its system of registered and unregistered design protection.

Registered designs enjoy extended protection, while unregistered designs have a shorter window. Similarly, the pending Design Piracy Prohibition Bill in the US, despite the delay, provides a framework for potential legislation in Nigeria.

The fight for legal safeguards for fashion design is an ongoing battle. However, with a blend of strategic brand building, innovative legal tactics, and a push for legislative change, Nigerian designers can navigate the legal labyrinth and ensure their creative visions are protected.

The Impact

Discourages Innovation: If designers can’t protect their creations, they’re less likely to invest time and resources in innovation. This stifles the growth of a vibrant and unique Nigerian aesthetic.

Stifles Industry Growth: A lack of IP protection hinders the ability of Nigerian fashion to compete globally and establish a distinct identity. Without proper protection, local designers struggle to gain recognition and secure investment to expand their businesses internationally.

Job Losses: Copied designs often come at lower prices, hurting sales of original creations and potentially leading to job losses in the local design and production sectors. If a small tailoring business can’t compete with the flood of cheap replicas, it might be forced to lay off staff.

Possible Solutions

Education and Awareness Campaigns: Equipping designers with knowledge about IP protection, registration processes, and enforcement mechanisms is crucial. Workshops and seminars can be held throughout Nigeria, focusing on cities with high fashion industry activity like Lagos, Kano, and Port Harcourt.

Collaboration between Fashion Industry and Legal Experts: The Nigerian Bar Association’s Intellectual Property Section could partner with fashion councils and industry organisations to offer pro bono consultations or discounted legal services to designers.

Government Action: Stronger IP laws and enforcement mechanisms are needed to deter copycats and incentivise original design. The Nigerian government can review and update copyright and trademark laws to better address the specific challenges faced by the fashion industry.

Promoting Ethical Sourcing: Consumers can play a role by supporting brands that are transparent about their production processes and committed to respecting IP rights. Look for brands that openly credit their designers and source materials locally whenever possible.