The Relevance of Copyright Protection

in the Textile Industries

presented by: Lien Verbauwhede Koglin, WIPO

___________________________________________________________________WIPO NATIONAL SEMINAR ON INTELLECTUAL PROPERTY FOR Damascus, July 21 and 22, 2010SMALL AND MEDIUM-SIZED ENTREPRISES (SMEs) Larysa KushnerIN THE TEXTILE INDUSTRY

WELCOME TO ...

Sunflowers textilesby Leeré Aldrich

Overview

1. What is Copyright

2. Why Copyright is Relevant in Textile Sector

3. How to Maximize Your Protection

4. Using the Works Owned by Others

1. What is Copyright ?

4

Copyright

Maps, charts, diagrams, technical drawing

Photographic works

Computer programs, original databases

Musical works

Literary works

Dramatic works

Artistic works, architectural works

Motion pictures

Grants authors, artists and other creators legal protection for their creative expressions in literary, scientific and artistic domain (‘works’)

Fabrics

• Artwork applied to clothing or to other useful articles

• Fabric design patterns

• Needlework and craft kits

• Patterns for sewing, knitting, crochet, needlework

• Weaving designs, lace designs, tapestries

• Sketches and patterns Photos: WIPO/S. Castonguay

Appliqués : Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000)

What is Copyright

Textile Machinery:

• Software to operate and/or maintain machinery

• User, repair or maintenance technical manuals for various

types of equipment and machinery

• Sketches, drawings and maps

What is Copyright

Marketing materials:

• Trade and product catalogs

• Artwork and text on product literature, labels and packaging

• Marketing and advertising materials (on paper, billboards, websites, accounting forms)

• Content on websites

• Sales training program captured on videocassette and CDs

• Newsletters

• Copyright protects works that are expressed in print as well as those created or stored in electronic or digital media

What is Copyright

Some things protected by copyright and other areas of laws

• Logos

• Characters in literary and graphic form

– A creative image might be protected by CR

– Might be registable as TM

• Works of applied art

– Varies significantly from country to country

– Might be overlapping with Industrial Design

• Often limited for three-dimensional functional articles

• The pictorial, graphic or sculptural features that can be “identified separately from the utilitarian

aspects” of an article

Scooby Doo Fabric by Cranston Village Licensed by Hanna-Barbera

What is Copyright

• Article 3 of the Copyright Law of Syria No./12/2001 stipulates that

among the protectable works are:

c) Works of plastic and applied arts and photography

• However, if you intend to mass produce or make multiple copies of

items, it is recommended to rely on design law rather than copyright

law

What is Copyright

Registration AU 120955 SApplication 199400092

Criteria of protection:

• Originality of literary and artistic expression

– should originate from the author: product of independent creation

• Fixation in a tangible form generally required

• Quality not relevant

What is Copyright

(Photo: ABC Wax (Cha Group))

Originality:

Banzai, Inc. v. Broder Bros. Co. (E.D. Pa. 2009)

Banzai brought suit against Broder Brothers for copyright infringement of its tye-dye fabric designs “USA Ultra Spiral Design” and “Orange Ultra Spiral Design”.  The Court dismissed the claims on the basis that the designs lacked sufficient originality to merit exclusive rights:

– the tie-dye spiral design is common and not proprietary to Banzai

– its only unique contribution was to select the colors

– Placing basic, predictable color combinations into a pre-existing design does not satisfy the minimum creativity necessary to establish a valid copyright

What is Copyright

Economic Rights (Use) Examples

– Reproduce or make copies– Distribute to “the public”– Communicate to “ the public”

and make available on the Internet

– Display or perform to “the public”

– Adapt and translate– Rent*, lend*

* Generally applies only to certain types of works: Cinematographic works, musical works, or computer programs

- Reproduction of a pattern in various forms, e.g. printed publications (catalogs, t-shirts, posters, etc.)- Sell the products or copies of the products to the public - Online catalogs- Exhibit the works in fairs, craft

exhibitions, museums, etc.- Adaptation of a pattern for different products Assignment or License

Exclusive Rights

http://www.donestore.com.au

• The property rights over a physical object (work) are completely independent from the IP rights of the creator.

• The buyer of a work acquires the physical object, but not the copyright, design rights, etc. over the work

– E.g. painting: only pigments, canvas, frame, stretcher

– E.g. t-shirt: only the cotton cloth

• Copyright in the work remain with the creator unless he expressly assigns it by written agreement to the buyer

What is Copyright

• Buyer cannot reproduce it on fabric (reproduction right)

• Buyer cannot exhibit the painting in art gallery or other public place (exclusive right to show the work in public)

• Buyer cannot alter the painting in a way that is prejudicial to the honor or reputation of the author (moral right to object to derogatory treatment)

Example:

Artist sells his painting...

by Ahmad Azzubaidi

What is Copyright

Moral Rights (Europe, Syria) Examples:

- Right of paternity (authorship):

acknowledgement

- Right of integrity: object against

mutilation and/or distortion that may

discredit the reputation of the author

Waivers?

- 2000 Alberto Korda (Diaz Gutierrez)

sued Smirnoff's advertising agency,

Lowe Lintas, and the picture library,

Rex Features,for use of the picture of

Che for Smirnoff's advertising company

in UK

Can Not be Transferred

Exclusive Rights

• How to Obtain Rights: Copyright exists automatically upon creation

• Remember: To maximize rights, if possible, register copyright claim with the national authority

– Available in Syria

• Advantages of Registration: will be accepted as evidence of copyright ownership in the event that you wish to enforce your copyright against an infringer and greatly reduces the preparation of evidence

What is Copyright

Term of Protection:

• Author’s lifetime plus 50 years

• Article 25 of the Copyright Law of Syria No./12/2001 Copyrights of work shall be fine arts enforceable for ten years starting from the date of producing such work

• Notice Requirements: Optional but strongly recommended

– © or “Copyright” with year of first publication and name of owner

What is Copyright

• Scope: Protects against unauthorized use or copying

• Test for Infringement: Unauthorized use or copying

– access to the copyrighted material

– identity or substantial similarity with the copyrighted material

Independent creation is often used as a defense

• Importance of dated records of the first creation of the work

• Copyright subsists worldwide: Berne Convention (Syria is a member)

• But national law applies

What is Copyright

From the IPEuropAware Guide for the Textile and Clothing Industry

• A European company S that sells advanced knitting machinery to manufacturers in China discovered that a local competitor was selling a competing product not under the company’s European trademark. The competing product copied:

– the dimensions, exterior covering and even the colors of the original product

– brochures and website copied pictures, diagrams and product specifications of the original product, even though the local product did not meet the same performance specifications.

• Misleading of the customers

• The company did not have any patents registered in China

Case Study: Copyright on knitting machinery specifications

• The company could only rely on claims of copyright infringement on their brochure artwork and infringement of the Anti‐Unfair Competition Law in relation to the false claims on the brochure

• To avoid the costs of litigation in the courts, the company engaged a local law firm to send a warning letter to the competitor, followed up with a phone call

• Result: the competitor changed the photographs and some of the contents of the brochure, but there was no legal basis to force them to change the appearance of their product

Case Study: Copyright on knitting machinery specifications

2. Why is Copyright Relevant to Your Business?

1. Control of Commercial Exploitation

Exclusivity over the use of copyright protected works helps business to

gain and maintain competitive edge in the marketplace

2. Generate Income

• Copyright is a tradable asset that may be owned, bought and sold the same as other types of property– sell copies of the work (e.g. t-shirts)

– sell copyright in the work

– permit (license) others to use your copyrighted work

• Can have an important long-term value for your business

Why Copyright is relevant

3. Effective Marketing and Advertising

Enticing marketing or advertising materials requires use of creative text, artwork, logos, etc., which are all protected by copyright.

In the digital environment, companies are turning to the Internet and use copyright protected works on their websites to get noticed, build loyalty and ultimately boost sales - Written text - Images: photos, drawings, charts - Short movies and video clips - Music, radio - Computer programs and interactive games - Directories, databases, lists

• Raise Funds

• Take actions against infringers

Why Copyright is relevant

From the IPEuropAware Guide for the Textile and Clothing Industry

• Small Enterprise X introduced children’s T-shirts decorated with cartoon characters onto the market. The enterprise did not find any trace of the characters in the trademark and design databases and so presumed that they were not protected and that their use was legal

• The cartoon characters were protected under copyright. As copyright is a self-executing right, it was not registered in any database. It was a surprise, therefore, when they received a declaration from Company Z, a cartoon film producer, that stated that X was infringing its copyrights

• Small Enterprise X reached an out-of-court settlement with Company Z

• Enterprise X could continue selling the product after payment of compensation and royalties from further sales. The compensation resulted in the loss of a few years’ profit for small Enterprise X.

Case Study

3. How to Maximize your Copyright Protection

in Your Business’ Creations?

1. Ascertain Ownership

• Consider if it is desirable or not for you to own the copyright :

• Whether or not you might want

– to prevent unauthorized uses

– to license the work to the third parties

– to re-use the commissioned work for the same or different purposes in future

– How much you want to pay

How to maximize your copyright protection

• Commissioned work (to be created by freelancers and other

organizations for you):

• ! Don’t assume you own the copyright just because you paid for it to be

created or you have ownership on a physical copy of a work

• General Rule: The creator (the author) of the work is the first

owner

Till other is not stated in written in the contract the general rule applies

Solution: Written Contracts

How to maximize your copyright protection

• Author ≠ Right holder (ownership)

• Work created by your employee

– Owner = employee

– Owner = employer, automatic transfer

– Owner = employer, assignment needed

– Different rules for computer programs

– Employee or independent contractor ?

– Work created as a part of job?

Solution: Written Contracts

How to maximize your copyright protection

2. Prove Ownership

• Deposit or register your work with copyright office

– Available in Syria

• Deposit copy with bank / lawyer

• Send yourself copy in sealed envelope

• Copyright notice

3. Protect Works in Electronic Form

How to maximize your copyright protection

What to do if you think your copyright has been infringed ?

• Get legal advise

• Decide what you want

– That you gain a new licensee

– That the unauthorsed use stop

– That the illegal or master copies of your work be delivered to you or disposed

– That you are paid damages

• Contact the infringer

– “Cease and desist” letter

• Consider formal legal action

How to maximize your copyright protection

What to do if you think your copyright has been infringed ?

• Bringing legal proceedings against an the one who use your

works without authorization (infringer)

is advisable only if:

1. you can prove that you own the copyright in the work;

2. you can prove violation of your rights;

3. the value of succeeding in the legal action outweighs the costs of

the proceeding

How to maximize your copyright protection

Some of the tactics for the SMEs in textile industry might include:

• Flooding the market with the copyrighted pattern books

• Constantly changing design

• Offering competitive price and quality

• Developing complex designs (difficult to copy)

How to maximize your copyright protection

Informal tactics:

• Dropping designs from the firm’s collection if a copy is found

• Developing complex weavers to make it more difficult to copy

effectively

• Improving co-operation and communication between the firms

• Building good relations with the clients

How to maximize your copyright protection

4. Using Works Owned by Others

May enhance the value or efficiency of your business

Examples:

- Use of design/pattern developed by other

- Use computer software or databases created by other

- Illustrate your website or catalogs with photographs taken by others

Requires, in most cases, prior permission from the copyright owner

Using Works Owned by Others

Possible involvement into the copyright violation

• By selling or otherwise commercially dealing with an item that violates someone’s copyright

• Importing a copyright item for commercial purpose Using just a part

• “Substantial” part/features of the work

• Quality rather than Quantity Assessment

• No violation for use of non-original or stock elements

Alterations or additions do not avoid infringement.One thing might contain several copyrights.

Using Works Owned by Others

• Maximize your copyright protection

• Ascertain copyright ownership

• Avoid infringement

• Get the most out of your copyright

Conclusions

Thank you for your attention!

Any Question?WIPO’s website for SMEs :

www.wipo.int/sme

Contact address: larysa.kushner@ehu.lt