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The Relevance of Copyright Protection in the Textile Industries presented by: Lien Verbauwhede Koglin, WIPO ___________________________________________________________________.

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Presentation on theme: "The Relevance of Copyright Protection in the Textile Industries presented by: Lien Verbauwhede Koglin, WIPO ___________________________________________________________________."— Presentation transcript:

1 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, 2010 SMALL AND MEDIUM-SIZED ENTREPRISES (SMEs) Larysa Kushner IN THE TEXTILE INDUSTRY WELCOME TO... Sunflowers textiles by Leeré Aldrich

2 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

3 1.What is Copyright ?

4 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)

5 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

6 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

7 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

8 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

9 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 S Application

10 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))

11 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

12 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

13 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

14 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

15 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? 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

16 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

17 Term of Protection: Authors 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

18 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

19 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 companys 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

20 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

21 2. Why is Copyright Relevant to Your Business?

22 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

23 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

24 From the IPEuropAware Guide for the Textile and Clothing Industry Small Enterprise X introduced childrens 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

25 3. How to Maximize your Copyright Protection in Your Business Creations?

26 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

27 Commissioned work (to be created by freelancers and other organizations for you): ! Dont 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

28 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

29 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

30 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

31 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: can prove that you own the copyright in the work; 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

32 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

33 Informal tactics: Dropping designs from the firms 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

34 4. Using Works Owned by Others

35 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

36 Possible involvement into the copyright violation By selling or otherwise commercially dealing with an item that violates someones 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

37 Maximize your copyright protection Ascertain copyright ownership Avoid infringement Get the most out of your copyright Conclusions

38 Thank you for your attention! Any Question? WIPOs website for SMEs : Contact address:

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