Portal de Periódicos da CAPES

Copy or copyright fashion? Swedish design protection law in historical and comparative perspective

2012; Taylor & Francis; Volume: 54; Issue: 1 Linguagem: Inglês

10.1080/00076791.2011.617211

1743-7938

Marianne Dahlén,

Copyright and Intellectual Property

Abstract While fashion piracy has been practised on an industrial scale for at least a century, the levels of intellectual property protection for fashion design have been low in most nations. This article gives a summary of the context of the lack of design protection for the Swedish textile and fashion industries, broadly defined, in the twentieth century, with comparisons to contemporary debates on fashion and creativity and to the historical French and US context. France, the US and Sweden have followed different paths in their approaches to intellectual property protection for fashion design. A study of the Swedish legislative debates 1916–70 shows that the different legislative approaches are connected to the local contexts of production. It is proposed that one way of understanding the levels of protection for fashion design is in terms of the differences in logic between 'fashion' and 'clothing'. Keywords: fashionintellectual property rightscopyrightdesign protectionalternative intellectual property strategiesSwedish textile and garment sector This article is part of the following collections: Fashion and Luxury Business Acknowledgements Research for this article was undertaken as part of the post-doctoral research project Copies, Competition and the Conditions of Creativity. Law and Fashion in Europe during the Twentieth Century, at the Uppsala Centre for Business History (UCBH), Uppsala University, led by Professor Mats Larsson and funded by Ridderstads Foundation. I am very grateful to Reggie Blaszczyk (Pennsylvania), Carolyn Glynn, Eva Hemmungs Wirtén, Mats Kumlien, Carl Gustaf Spangenberg (all Uppsala), Ekaterina Kalinina (Södertörn), and Ingrid Giertz-Mårtenson (Stockholm), and the colleagues at the UCBH seminar, for comments and suggestions that improved this work. Thanks also to Anders Gidlöf, the Swedish Centre for Business History for kindly providing illustrations. Notes 1. 'Fashion' often refers directly to clothing styles, which also is the focus of this article, but 'fashion' can refer to other areas of intellectual and social life as well. There is no single definition of fashion; it has varied with time and academic perspective (Kawamura, 2005, p. 87). 2. Ray Davies, 'Dedicated follower of fashion' (The Kinks). 3. European Commission (2008), Annex 4. Overview per product sector of countries of origin, p. 24. 4. For the case of Sweden, see Mönsterskyddsutredningen (1965). 5. See below in the section on the Swedish textile and garment sector. 6. William Shakespeare, Much ado about nothing (The Literature Network), Act 3, Scene III. Retrieved March 30, 2011, from http://www.online-literature.com/shakespeare/muchado/9/ 7. Retrieved March 30, 2010, from http://quotationsbook.com/quote/14468/ 8. Foley is better known in her subsequent career as a pali language scholar and translator. 9. The scarf story has also been commented on the fashion blog Sassybella by Helen Lee, 20 February 2008: 'Marc Jacobs takes inspiration from Swedish villagers', retrieved March 30, 2011, from http://www.sassybella.com/2008/02/marc-jacobs-takes-inspiration- from-swedish-villagers/ 10. Section 104 (A), US Copyright Act. 11. Retrieved March 14, 2011, from http://www.wipo.int/treaties/en/Remarks.jsp?cnty_id=1045C 12. Council Regulation (EC) No 6/2002 of 12 December 2001 on Community Designs. 13. '… the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article', § 101 US Copyright Law, Title 17, US Code. 14. See for example the story of the Marc Jacobs' design theft referred to above. 15. Also the European Union is concerned, see Proposal for a European Parliament and Commisssion Directive Amending Directive 2006/116/EC of the European Parliament and of the Council on the Term of Protection of Copyright and Related Rights. 16. Collective creative practices were commonly used before the nineteenth century (see Bengtsson, 2008). 17. Adopted on 20 March 1883 (http://www.wipo.int/export/sites/www/treaties/en/ip/paris/pdf/trtdocs_wo020.pdf). 18. Adopted on 9 September 1886 (http://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_wo001.pdf). 19. On the relevance of trademarks in earlier periods from a business history perspective, see Lopes and Duguid (2010). For a general critique, see Klein (2010 [2009]). 20. Minutes from the Swedish Supreme Court (Högsta domstolens protokoll), October 12, 1881 (cited in Hasselrot, 1932, p. 25). Not only did the justices warn of the alienation of the trade mark from the product, they also warned of misleading consumers. 21. The source of the employment figures I cite from Gråbacke and Jörnmark (2008) is Statistics Sweden (SCB). 22. Interview with Gudrun Sjödén in Dagens Nyheter (Lindholm, 2011). 23. The Industrial Design Law of 1806 (amended in 1909), which had a deposition procedure. France adopted a special law for protection of fashion in 1957, Law No. 52-300 of 1952 against the Unlawful Reproduction of Creations of Seasonal Industries of Dress and Other Articles of Fashion (amended by Law No. 57-296, March 11, 1957). 24. As qualified in the Law on Certain Patterns and Models (lagen (1899:59) om skydd för vissa mönster och modeller). 25. Proposition (Government Bill) No. 2/1926, pp. 29–30. 26. Government Bill, 1960:17, p. 50 (cited in Mönsterskyddsutredningen, 1965, p. 91). 27. Bill No. 351/1954, the First Chamber, Bill No. 461/1954, the Second Chamber (Swedish Parliament).