The Use of Intellectual Property Laws and Social Norms by Independent Fashion Designers in Montreal and Toronto: An Empirical Study

Abstract

Intellectual property law theory is premised on a utilitarian justification granting limited time monopolies for encouraging creation, innovation and its dissemination to society. However, in the last several decades, scholars have been mounting empirical evidence to show that in some industries, creativity and innovation exist outside the contours of intellectual property law and thrive despite their lack of reliance on the laws. Instead, what they uncovered is that creators in these industries follow norms that mitigate issues surrounding some kinds of copying.

Intellectual property protection for fashion design in Canada is fragmented across a complex legal landscape that entails several different laws, unique in scope, eligibility requirements and rights. This complex framework is not unique to the fashion design industry but is similar for design industries generally. Navigating through these laws can be daunting and thus inaccessible for the some segments of the design industry that are small to medium sized enterprises (SMEs) that have limited resources to expend on legal advice and registration.

Using grounded theory methodology and qualitative and quantitative methods, this research explored the use of intellectual property law and social norms by the independent fashion design segment in Montreal and in Toronto and the contours of copying and the public domain.

What the empirical research reveals is that independent fashion designers do not use the law to protect their designs and instead, use mechanisms that centre on the negative copying norm. Negative copying is copying that is negatively perceived. It is not necessarily legally infringing or economically harmful, although it can be both. Further, it can apply to subject matter that is not the subject matter of intellectual property law. This norm against negative copying is supported by extra-legal prevention and enforcement mechanisms that have been developed by individuals within the segment in order to mitigate the issue of copying.

The empirical research also reveals that in addition to the economic incentives to create, there are also a number of non-economic incentives such as identity and reputational interests that drive creativity and help reinforce the norm against negative copying.

Using grounded theory enabled me to draw on literature from a number of disciplines in order to help contextualize these findings and approach the analysis from the perspective of intellectual property theory, policy and law, social norms (sociology and psychology) as well as economic geography, and design.