Design Piracy Prohibition Act

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The Design Piracy Prohibition Act, S. 1957, is a bill pending in the United States Senate that would amend Title 17 of the United States Code to provide sui generis protection to fashion designs for a period of three years. The bill was introduced March 30, 2006 by Representative Robert W. Goodlatte (R-Va.), with six co-sponsors from both parties, and then referred to the U.S. House Committee on the Judiciary. On Thursday, August 2, 2007, in Washington, D.C. Senators Charles Schumer (D-NY), Kay Bailey Hutchison (R-TX), Dianne Feinstein (D-CA) Orrin Hatch (R-UT), Herb Kohl (D-WI), Lindsey Graham (R-SC), Sheldon Whitehouse (D-RI), Hillary Clinton (D-NY) and Olympia Snowe (R-ME) introduced the Design Piracy Prohibition Act (S1957: The Schumer-Hutchison-Feinstein Bill) in the United States Senate.

The Act would extend protection to "the appearance as a whole of an article of apparel, including its ornamentation," with "apparel" defined to include "men's, women's, or children's clothing, including undergarments, outerwear, gloves, footwear, and headgear;" "handbags, purses, and tote bags;" belts, and eyeglass frames. In order to receive the three-year term of protection, the designer would be required to register with the U.S. Copyright Office within three months of going public with the design.

Currently, fashion may only be protected by copyright to the extent that its shape is non-utilitarian enough to qualify as a creative "sculpture," or to the extent that a design, pattern, or image on the clothing qualifies as "pictorial" or "graphic." While current laws against counterfeit goods do provide some protection for designers, this is so only when the trademark is used and not when merely the design is copied under a different label. In addition, fashion may be protected by design patents if the requirements for patentability are met. To be patentable an ornamental design must be new, original and non-obvious. The United States Patent and Trademark Office website (www.uspto.gov) has a searchable database of patents, and includes patents on apparel in class D2, carrying articles in class D3, and eyeglass frames in class D16. Technological advances to the means of textile and garment production, as well as increases in the number of distribution channels and the availability of cheap labor in emerging economies have enabled those who would copy these designs to do so quickly and inexpensively. Legislation targeting design piracy has already been enacted in Europe, India, and Japan.

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[edit] Subcommittee hearing and debate

The U.S. House Subcomittee on Courts, the Internet, and Intellectual Property held a hearing on the bill on July 27, 2006, at which there was disagreement among legal experts as well as representatives of the fashion industry as to whether there was a need for copyright protection. Proponents of the Act claimed that new technology threatened American designers' ability to compete with the products of lower-cost countries, because the distribution of images of new designs and the automation of copying and manufacturing could occur within hours. They additionally pointed out that the United States was the exception among western nations in failing to protect designs.

Critics claim that, contrary to the bill's claims, the bill will actually harm independent fashion designers. The majority of independent designers do not have the litigation funds to effectively challenge big business should they be accused of copyright infringement. Furthermore, because distributors of accused designs can be penalized as well as the designer, distributors of clothing will become very wary of new designs unless the designer has adequate funds, influence, and power to hire skilled and effective lawyers. Pattern companies frequently utilize prevailing trends; so they too are vulnerable. Because of the legal risks of producing fashion patterns, less people will sew their own clothing, and fabric and sewing stores will suffer losses as well. As evidence of the bill's hypocrisy, critics point to how one of the most vocal supporters of the bill, Diane Von Furstenburg, was recently caught copying and distributing a piece of clothing originally designed by an independent Canadian designer. Critics also argue that the industry is already thriving commercially and encourages innovation. They point attention to the concept that originality in fashion design is too insubstantial for copyright law to distinguish protected elements from non-protected elements, and that extending copyright protection would stifle independent designers while giving powerful, big-business fashion houses a near-monopoly.

[edit] See also

[edit] References

  1. ^ Thomas.loc.gov
  • Witnesses Clash on Need for Granting Copyright Protection to Fashion Designs, Anandashankar Mazumdar. BNA's Patent, Trademark & Copyright Journal, August 4, 2006.

[edit] External links

Retrieved from "http://en.wikipedia.org/wiki/Design_Piracy_Prohibition_Act"