Fashion: An Exception to Protection?

Where does the fashion industry stand in intellectual property law in Canada?  Quite frankly, it doesn’t.  The fashion industry in Canada is an exception to the “protection rule”.  It is a creative industry, arguably as creative as music, movies and novels, yet it has not established the protection of these other industries.  The question therefore remains, should fashion design become one of these creative categories which is worthy of protection?

The answer? No.

Take a look at the legislation governing copyright.  Section 3 of the Copyright Act only refers to musical, dramatic, artistic or literary works.[1]  There is no mention of design or fashion at all.  The crafters of the legislation must have taken into account the larger issues of clothing design – the fashion industry inspires creativity.  When a new design or product comes into the market, it is copied for the benefit of all.  Clothing designers pay homage to their fellow creators by using their designs and making them available to those who can not afford runway fashions.[2]

Think about what would happen if fashion creators could not seek inspiration from fellow designers (keep in mind that you can not copyright an idea, just the expression of the idea).  So, if a designer came out with a black, knee length, short sleeve dress, the result would, essentially, restrict designers from creating a similar item – crushing their creativity in fear of being penalized as a “copier”. The fashion industry would suffer, and consequently, so would all of Canadians who would not have the wide selection of fashion items that we currently do.

The fashion industry operates in a way so that designers can see the high priced fashionable items and replicate them for the discount clothing stores.  These items are then sold at a fraction of the price to those that want the runway look at reasonable prices.  To remove this laissez-faire market functionality would prejudice many Canadians for the benefit of a few designers.  This is not to say that designers do not deserve ANY protection, as to do so would likely reduce incentives to make any clothing at all.  What many high fashion designers rely on to make money and what encourages people to buy the higher priced clothing items instead of the exact item at a discount store, is the brand attached to the item – the logo.[3]

Designers can still protect themselves and their brand by registering their logo under the Trademarks Act.[4]  This distinguishing feature of the clothing item can be protected and if infringed, the perpetrator can be liable.  This, at the very least, ensures that designers are not left to the wayside with no legal remedy for those that copy their illustrious logo.  This protection does not stifle the inspiration and creativity that the fashion industry relies on.  Although there are limited protections for those that inspire the fashion industry, this is one area where the expanding arms of intellectual property protection should not extend.