Counterfeit: adj. “made in imitation so as to be passed off fraudulently or deceptively as genuine; not genuine; forged.”
It isn’t always possible to own the latest trends. Even for people living upper class lives, economic depression, government tax and simply MRPs are enough to make one want to close their wallet against the exorbitant price of designer clothing and accessories.
Thus, there is a gap between consumer wants and supply. The business people who have managed to bridge this are those working in the alleys of Hong Kong; the lanes of Bombay’s Heera Panna; and Bangkok’s Chatuchak market. With a hidden stock of counterfeit, aka “knock off” designer goodies, they’ve managed to create a grey market which people all around the world are flocking to so that they may have the fancy item they want, but at a price they want too.
Be it Michael Kors bags, the rounded Versace medusa on t-shirts, or Louis Vuitton prints on almost anything, Asian streets have become a jungle for counterfeit items with almost little to no repercussions. In this essay, I explore the legal as well as intellectual implications of counterfeits of Asia.
Beginning with a basic idea of how an item is protected, we can see how the legal framework provides for loopholes for counterfeiting. Designers usually use a combination of copyright and trademarks to protect their work. In product design, trademarks help in the packaging of the product so that they remain recognizable to consumers thus lowering “search cost”. However, there is often a fine line between functionality and design, which becomes a grey area during infringement cases.
For example, a full sleeve shirt is a common style of clothing. However, it’s functionality is “covering an arm”. So when Burberry or any other designer make a blue full sleeve shirt of their own design, technically it is not an “original” idea and the shirt’s functionality has not changed. Thus, there is an ongoing debate on what remains original design and where the line can be drawn for infringement. However, in the U.S, legislation is being considered to extend definitions of copyright to include ornamentation.
Thus, “To qualify as a fashion design, an article must be unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles. Once a plaintiff can show the article is unique, distinguishable, non-trivial and non-utilitarian variation over prior designs for similar types of articles, they must then show that the articles are so similar in appearance as to be likely mistaken for the protected design, and contains only those differences…which are merely trivial.“2
Common sights in Asian counterfeit markets are slightly modified designs. That is, a popular fashion trends are changed ever so slightly so as to still look like the original design, but are different enough to avoid immediate legal actions. For example, an Esprit bag pack in Bangkok’s MBK Mall looks and feels very much like an original but on closer inspection, one can see the spelling of Esprit has been changed to “Espit” although the typeface used is still almost identical to the original. Even with the use of copyright laws, there are still many areas which can allow for counterfeit goods to be made without technically being illegal, but pose moral rights issues for the designer of the goods.
CHAPTER 1: Understanding International Law
The Berne Convention for the Protection of Literary and Artistic Works was an international convention of countries to accept certain copyright laws in order to protect authors of works from the signatory countries. The meeting of 164 representatives of countries occurred in Berne, Switzerland in 1886. It was organized by the World Intellectual Property Organization (WIPO). In a nutshell, the Union of countries came to certain agreements with regard to copyright, creating a system of equal treatment across countries, and also setting an international standard for copyright law for signatory countries.
WIPO has thus created a generally accepted basis for copyright law which explains that expressions of ideas (literary, artistic, music work, etc) are automatically protected by copyright from the moment they are “fixed” or created in some physical form. The subsequent articles of the Berne convention describe how countries belonging to the Berne Union should treat copyright for both foreign and domestic works. It outlines the rules along which Union countries should work with regard to adaptation of works, communication of work, infringement, control of circulation and even the moral rights of the author.
Many Asian countries became a part of the Berne Union including Malaysia, Singapore and India. However, since the countries of the Berne Union are allowed certain flexibilities with regard to the Act, each country’s copyright law does vary. Malaysia puts more emphasis on the economic rights of the author rather than moral rights. This extends only to respecting the author’s work on the basis that the work is seen as an extension of the author’s personhood. This means that the author of a work is allowed to object in a case of mutilation, distortion or significant modification of their work which adversely affects the author’s honor or reputation4.
The problem in Singapore is that there is no real definition for “art” and there are only 4 provisions for the protection of an author’s moral rights. The first talks mostly about musical works while the other three specify the duty of a person not to falsely attribute works of an author. They do not really give the author the positive right to claim ownership4.
India, being a member of the Berne convention, follows the basic principle that copyright is an innate right of any creative work at the time that it is created. Thus, no additional record is needed for one to exercise copyright law. However registering the date and name of the work in the Registrar of Copyrights is useful in the case of infringement or future legal dispute. Unfortunately, the current policies regarding copywriting and infringement law were written in 1957 under the Copyright Act which barely sees any persons suffering its consequences today.
There also remains the problem of lines blurring between copyrighting an idea versus the actual piece of work. The scope of the Copyright Act extends to “original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.” Again we see a grey area (as with the blue sleeve shirt example) where the line between original idea and expression of the idea might overlap, thus leaving gaps for counterfeiting.
The Department of Secondary and Higher Education have also explained copyright in terms of authorship. That is, the creators of such artistic works and with whom other rights and licenses are shared. In this aspect, it is said that the reproduction, distribution, translation, propagation to the public or adaptation of intellectual property belongs to the author (or owner) of the work. However, it is possible for these copyrights to be transferred from one person to another, preferably done so in writing.
This gives the author of a work a tighter control over who may be using their work thus helping prevent incorrect mutilation or distortion of their work and also gives them a positive platform to raise objections when it does occur.
However, there is also a debate about how far strict copyright enforcement can hinder cultural sharing. The same Copyright Act which protects artists also mentions that there are exceptions to the enforcement of the law in order to prevent unnecessary rigidity onto society. Some of these exemptions include: Research or private study, criticism or review, reporting for current events, connection with judicial proceedings, performances by amateur clubs (under certain restrictions), etc.
CHAPTER 2: Law vs Culture
Larry Lessig, professor at Harvard Law School and a political activist, explains how laws can affect cultural sharing in a TED Talk he gave in 2007. Explaining an argument given by John Philip Sousa, Lessig explains the concept of a “read-only” culture versus a “read-write culture”. He narrates the story of Sousa’s argument against “talking machines” in which Sousa claimed “we will not have a vocal chord left”, that humans, through extended use of these “infernal machines” will lose the use of their vocal chords much like evolution removed tails of humans evolving from apes. The reasoning for this dramatic claim was that music and song is an activity which allows culture to grow through oral propagation.
Lessig continues his discussion an explains that this culture works in a “read- write” system where people participate in the formation of culture and cultural content by learning and then re-creating or re-iterating existing ideas. This is what Sousa so passionately fought for. The “read-only” culture is the concept that the people who “create” are given powers which prevent other people from re-iterating. Lessing explains it as:
“A culture where creativity was consumed but the consumer is not a creator”
He continues explaining various other scenarios where law making clashes with common sense when it comes to creativity, distribution of ideas/content, and technology. What his talk boils down to is that sometimes laws, though aimed at helping creators of works also run a very high risk of losing cultural growth. Lessig (although arguing for digital culture and technology) says that expression and reiteration, in the form of user-generated content, is a revival of the “vocal chords” that Sousa spoke about. To summarize, looser laws allowed people to recreate and nurture culture “for the love, not for the money.”1
Though in today’s world, it is debatable as to whether the sellers of counterfeit designer bags and clothes are really in the business for love and not for money, one cannot deny that despite the illegality of the act, cultural sharing has already taken place. The man selling you a fake Louis Vuitton bag from the lanes of Mumbai’s Heera Panna shopping center probably has little to no exposure about world wide fashion trends had it not been for his job. To rope in both tourists and locals into his tiny shop (from a sea of over a hundred such stores), this man would have to be the perfect salesman. Meaning, he needs to know enough about his product to sell it.
Here the cultural sharing occurs. He will memorize the names of designers, styles of bags, colour combinations, and other details. He observes what bags other people are carrying, note which ones his customers ask for, and care for the pieces he stocks as if they really were designer made. He has educated himself and will possibly pass on this information to his co-workers or employees. Soon, the name Louis Vuitton will trickle through his family and further to a network of people. In all of this, Louis Vuitton has spent not a single penny on the creation of a bag nor on its advertising. Yet the name has become better known and the emotional want for the bags has increased by a significant number of people. It is understandable that designers may not be looking for publicity in this manner. Their target audience has already been reached on an exclusive level, and that they are making their earnings through the wallets of a certain class of people. But the knowledge and want of these international styles acts as an educational tool for those who wouldn’t have been a part of the LV market anyway.
For a country like India, there is a large gap between those who can afford genuine good and those who cannot. Often, the latter party is also left unaware of what they might be missing out on. Unfortunately, most of India’s population form the Have Not’s and where schools cannot educate about brands and trends, market places can. Of course, like fashion trends, the trickling down of these takes plenty of time from runways to the mass department stores. But it is still important that these processes happen so that the public IQ in terms of aesthetics and keeping in tune with global movements, is raised.
This cycle of observation and imitation contributes to Lessig’s “read-write” culture. Producers of imitations have also known to branch out and slap logos of designers onto scarves, t-shirts, shoes and cell phone cases. The design itself may or may not be aesthetically pleasing but it allows for re-iteration of an existing design and thus the birth of a new one. Thus there has been a certain amount of growth, even if it is in a small quantity.
This cyclical movement of creation and recreation of works echoes Christopher Booker’s writing in The Seven Basic Plots: Why We Tell Stories. Most stories, both classical and modern seem to be derived from seven basic plots that Booker has laboriously described in his book. All of human history has witnessed re-imaginations of these plots in various ways to give readers a taste of something new. Isn’t the re-imagination of goods then not the same concept? Despite imitations being legally wrong, one cannot deny that the companies making the goods (though despite losing millions of dollars per year) are still better geared to dealing with a little lost business as compared to the Heera Panna salesman who might be losing his dinner every time a bag stays on its shelf.
It is impossible to completely protect creators’ works especially in a digitally run age where sharing occurs in milliseconds. With a huge amount of global population having access to some sort of smart phone or internet connection, there can little control over what content is accessed and used online, and even less control of copyright laws applying to the average user created content.
YouTube has taken certain steps to control the unauthorized redistribution of songs via record companies having official accounts from which they may upload music videos, interviews, etc. The site also does allow for users to discriminate between sharing videos under “Fair Use” and “Public Domain” versus “Copyright” or “Creative Commons”. The biggest differentiator between these is that Standard YouTube licensing allows for copyrighted material to be used for educational, research, teaching and some other general purposes—meaning that these are loose rules. The Creative Commons and Copyright Laws are much tighter with the owners of videos/music either giving certain permissions to select people for usage or completely copyright-protected works to be unavailable for re-use. Although the site does regularly crack down on people who violate these rules, it is impossible for it (which has millions of users, both registered and unregistered) to be completely clean of copyright infringement issues.
While YouTube makes much more media available online, the micro-blogging site, Twitter does not have any restrictions about the copying of tweets. In fact, it is common knowledge (and also a common joke) on Twitter that “popular accounts” repeatedly tweet the same content over and over again in order to gain followers and raise their number of retweets. In such cases, even professional comedians’ material are stolen and circulated. Here, with the entanglement of a person’s career and therefore income, wouldn’t it be fair for these creators to ask for protection of their tweets?
Tumblr too faces these issues. As a site that sees the creation of Memes (ie, popular content that becomes viral online), a lot of accounts are considered “popular” even though they might not really be the creators behind these works. On Tumblr however, there is a dependence on the Community to be responsible with content. As a lot of artists and designers use the site for their blogs, their artwork is often seen and appreciated by others by reblogging. However, the average used may save and re-upload the art (with good intentions) but in doing so, they’ve removed the artist completely. In such cases, Tumblr has provided for and Image-Source area where users can link images from their original site. Even when this fails, the Tumblr Community often leaves captions below images and artwork asking people to not delete or change the name of the artist while reblogging. It becomes a social responsibility of users then to give credit where it is due. However, this doesn’t completely solve the problem of recreating or editing original artworks.
What online copyright then boils down to is social duty. While YouTube rightly enforces some copyright rules, it is impossible for the average online contributor to ask for protection of their work despite the fact that the definition of copyright should technically protect this too. Torrents, downloads, online streaming, and a myriad of other sites which are regularly accessed do manage to fall into the grey areas of copyright protection. The general uproar against the shutting down of PirateBay is an obvious example that although people know downloading online is illegal, it is a luxury no one wants to live without. This then becomes another instance of cultural sharing, where despite the illegality, society as a whole has demanded for content.
It can be summed up that copyright laws are a grey area but in general should protect creators against some outright violations that might harm the integrity of their work and prevent unfair recreation and counterfeit. It then becomes the duty of lawmakers and enforcers to be constantly moderating infringement issues, especially those not online, as every hue and cry for infringement may be a circumstantial case. However, the impact of cultural sharing in such lawmaking should not be ignored. Most countries account for educational, research and other such guidelines which allow for sharing within their framework but these are often misused as the loopholes through which people wrongly distribute content. It is important for societies to understand the losses incurred in illegal counterfeit but also for governments’ to respect people’s demand for accessible content without barriers, especially price.
There is no real solution for the Copyright debate except for it people to be socially aware and respect the work of creators. Often, even this get entangled with the Inspiration vs Plagiarism argument when works are recreated and redistributed. It might be a utopian ideal for people to give rightful credits when it is required, and also for them to be completely honest when purchasing goods but this also depends on producers providing their goods at fair prices so as to discourage the need to counterfeit items. Although the entire idea of exclusivity of designer goods does come in to question, it might seem like a good point for creators to chew upon when making their designs available in the market.
The online world is a completely different argument which cannot be subject to the laws that physical goods may have. Copyright laws would then be stepping on the toes of freedom of expression and even censorship if people are not allowed to engage with content because of the creators’ fear of it being stolen. Neither is it possible to apply business rules and have a standard, maybe lower, quality of online content which equates to “fair price”. In fact, many sites (especially those providing online resources, like stock photos) are promoting better Internet culture by providing high quality content but urging users to either give back or credit the creator.
All works by nature involve a human touch and will always face some sort of sharing, either organically or digitally. What is the most important is that the work itself is not subject to the fighting that the creators may be raging with copyright laws. It seems that copyright should become less of an economic issue but a philosophical one. Esthery Dyson aptly summarizes the situation:
“I think copyright is moral, proper. I think a creator has the right to control the disposition of his or her works – I actually believe that the financial issue is less important than the integrity of the work, the attribution, that kind of stuff.”
Knock off the Knock offs by Meghan Collins http://www.law.illinois.edu/bljournal/post/2009/09/21/Knock-off-the-Knockoffs-The-Fight-Against- Trademark-and-Copyright-Infringement
Don’t Copy My Blue Suede Shoes by Beth Hutchens http://www.ipwatchdog.com/2010/09/23/copyright-protection-for-fashion/id=12602/
Berne Convention for the Protection of Literary and Artistic Works http://www.wipo.int/treaties/en/text.jsp?file_id=283698
Protecting reputation: Malaysia and Singapore,
The Law of Reputation and Brands in the Asia Pacific
Handbook of Copyright Law
Larry Lessig: Laws That Choke Creativity, TED Talks.
YouTube Help, Copyright and Rights Management.
You’ve Got To Be Kidding!: How To Keep Your Job Without Losing Your Integrity, Nan Demars.
 Knock off the Knock offs by Meghan Collins http://www.law.illinois.edu/bljournal/post/2009/09/21/Knock-off-the-Knockoffs-The-Fight-Against- Trademark-and-Copyright-Infringement
 Don’t Copy My Blue Suede Shoes by Beth Hutchens http://www.ipwatchdog.com/2010/09/23/copyright-protection-for-fashion/id=12602/
 Berne Convention for the Protection of Literary and Artistic Works http://www.wipo.int/treaties/en/text.jsp?file_id=283698
 Protecting reputation: Malaysia and Singapore
The Law of Reputation and Brands in the Asia Pacific
 Larry Lessig: Laws That Choke Creativity, TED Talks.
 YouTube Help, Copyright and Rights Management.
 You’ve Got To Be Kidding!: How To Keep Your Job Without Losing Your Integrity, Nan Demars.