“Fabric is the most extraordinary thing; it has life. You must respect the fabric”- Hubert de Givenchy
It is no doubt that fabric is the heart and soul of the textile and fashion industry. Fabric speaks at every social, formal event. From the traditional Nigerian wedding ceremonies to even formal events. The popularised “aso-ebi” – (uniform clothing) is a tip of the iceberg on how fabric is used in Nigeria. Fabric is the heart and soul of the textile and fashion industry. The fabric industry in Nigeria is a budding one with prospect for developing the Nigerian economy. In a report by Proshare Intelligent Investing, textile, apparel and footwear sub-sector remains the 2nd largest contributor to Nigeria’s manufacturing Industry with an output of about 383 billion Naira as of the year 2017. Collins English Dictionary defines fabric as “cloth or other material produced by weaving together cotton, nylon, wool, silk, or other threads”.
The World Intellectual Property Organisation defines Intellectual property as the creation of the mind such as inventions, literary and artistic works, designs and symbols, names and images used in commerce. The derivative of this is that Intellectual Property Law is the law that protects the creation of the mind. The rationale for the protection of the creation of the mind can be explained in only 9 words, “it is hard to create but easy to copy”. The trite question to be answered is: how are fabric creation and designs protected under the Nigerian Intellectual Property Laws?
In Nigeria, there are 4 major means of protecting intellectual property: namely: copyrights, trademarks, patents, and industrial designs. Under the Nigerian Copyrights Act 1988, the following works are eligible for protection namely: literary, musical works, artistic works, cinematograph films, sound recordings, and broadcast. Fabrics are not literary, musical, cinematograph films, sounds recordings and broadcasts. So at best they can be classified as artistic works. However, the Copyright has placed a restriction on artistic works in the following words: “an artistic work shall not be eligible for copyright if, at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by an industrial process”.
To this end, if the designer of the fabric intends that the created fabric is to be used for mass production, Copyright protection cannot avail such designer. Under the Patents and Designs Act 1971 patentable inventions are defined as new inventions that result from an inventive activity and are capable of industrial application; or if it constitutes an improvement upon a patented invention and also is new, results from inventive activity and is capable of industrial application. To this extent Patents solves the problem of mass production. Let’s remember that under copyright, one cannot obtain protection for an artistic work intended for mass production.
However, the problem with patent are: first, patents only protect the invention and not necessarily the design/aesthetic beauty. Secondly, the cost of registration which is estimated at $1235 as well as the cost of protection and the cumbersome process of protection are a great obstacle to budding designers.
Design under the Patent and Designs Act are only protectable to the extent that they are: “any combination of lines or colours or both, and any three dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial processes and is not intended solely to obtain a technical result”. These designs are protectable only if the designs are new and they are not contrary to public order or morality.
These designs are only registerable if they are new and are not contrary to public order and morality. The term “new” presupposes novelty, either as to pattern, shape or in the way in which the pattern, shape or ornament is to be applied to some special subject matter. This protection under Designs is quite an improvement from the protection obtainable under copyright to the extent that, the designs can be protected for mass production. Protection under designs is more wholesome than that obtainable under copyright to the extent that designs can be protected even when they are intended for mass production. The duration for the protection of designs under the Patent and Designs Act is 5 years renewable for two further consecutive periods of 5 years. It is opined that the duration is too short owing to the need to encourage innovation irrespective of the attempt to dissuade a monopoly of designs as envisaged by the Act.
Although, currently, the existing Legislative framework goes a long way, it is oftentimes not the most practicable means of production. Thus oftentimes, the alternatives to Intellectual Property such as doing nothing and trusting the brand identity and customer loyalty to protect one’s economic interests are sometimes advisable, especially for budding brands. This also works because the fast pace of the industry oftentimes means trends may come and go out of season while the legal protection process is ongoing. However, doing nothing is not generally advisable. While it may be cheaper to do nothing and trust in the innovation to sell itself, there is also a greater likelihood of IP infringement if one does nothing. Another alternate means of protection is the use of trade secrets. This can work for the creation of those patterns that are so unique that they cannot be replicated without knowledge of the particular arrangement of the fabric
In conclusion, the mechanisms for the protection of fabric in Nigeria vary. Although there is a lot of work to be done in the protection of fabrics, we submit that the Nigerian fabric Industry possesses enough potential that can be exploited for the benefit of all stakeholders.