Should you be able to copyright a shirt?
On Aug. 5, Sen. Chuck Schumer (D-N.Y.) introduced S.3728: the Innovative Design Protection and Piracy Prevention Act. He’s got 10 co-sponsors — including three Republicans — and a big idea: to extend copyright protections to the fashion industry, where none currently exist. That’s right: none. I — well, not I, but someone who can sew — can copy Vera Wang’s (extremely expensive) dress and sell it to you right now (for much less), and Wang can’t do a thing about it.
We’re used to the logic of copyright. Movies, music and pharmaceuticals all use some form of patent or copyright protection. The idea is simple: If people can’t profit from innovation, they won’t innovate. So to encourage the development of stuff we want, we give the innovators something very valuable — exclusive access to the profit from their innovations. We’ve so bought into the logic that we allow companies to patent human genes.
And companies love copyright. They love it so much they persuaded Congress to pass the Sonny Bono Act, which extended individual copyright protections to the life of the author, plus another 70 years; and corporate copyrights to 120 years from creation, or 95 years from publication, whichever is earlier. That’s an absurdly long time, and it belies the original point of patents: Does anyone seriously believe that a 40-year-old with a money-making idea is going to hold back because someone can mimic it 20 years after he dies?
At a certain point, copyrights stop protecting innovation and begin protecting profits. They scare off future inventors who want to take a 60-year-old idea and use it as the foundation to build something new and interesting. That’s the difficulty of copyrights, patents and other forms of intellectual protection. Too little, and the first innovation won’t happen. Too much, and the second innovation — the one relying on the first — will be stymied.
Which is why we have to be careful when one industry or another demands more copyright protection for itself. “Intellectual property is legalized monopoly,” says James Boyle, a professor at Duke Law School. “And like any monopoly, its tendency is to raise prices and diminish availability. We should have a high burden of proof for whether it’s necessary."
Drug development probably meets the burden of proof. It costs hundreds of millions of dollars to bring a drug to market. If Pfizer could just copy the drugs Novartis develops, Novartis wouldn’t have much reason to develop drugs.
Recipes don’t. You can’t patent dessert. Just ask Jean-Georges Vongerichten. Years ago, he created a chocolate cake with a molten core of liquid chocolate. The recipe became a sensation. Which meant it appeared on menus all across the country, with no credit to JGV. That’s a bummer for its creator, but a boon to all of us who don’t live in New York. We get to eat it anyway. And yet innovation continues apace in the food world. JGV is still a rich man. We can have our cake and eat it, too. (Sorry, sorry.)
So which one is fashion? Well, look around. Sure seems as though there are a lot of clothing options, and at all manner of price points. The big fashion houses are raking in billions of dollars in profits. What’s the problem we’re trying to solve?
(Photo credit: By Mahesh Kumar A./Associated Press
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