Fashion piracy and artificial intelligence—does the new creative environment come with new copyright issues?

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1. Introduction Artificial intelligence (AI) is slowly changing the world of creativity. Nowadays algorithms are capable of creating works that previously were created solely by human authors. For instance, creative outputs by writers, journalists, musicians, artists and designers are being challenged by AI-generated works.¹ The development of AI not only changes the world of design process but also creates new difficulties for the copyright system, which is primarily created to protect the creative endeavours of human creators.² Thus, the changes caused by AI to the professional environment in creative industries raise questions regarding copyright law as well. The fashion industry provides a particularly fascinating research context for contemplating the copyright issues related to the use of AI. AI has made its way into almost every segment of the fashion value chain, from product discovery to robotic manufacturing.³ Fashion, on the other hand, is an extremely IP-intensive industry, which is known for its complex copyright environment.⁴ The increasing use of AI in the industry is likely to stir the pot even more, and perhaps even increase fashion copying. This creates a need to take a further look at the copyright issues that may arise, and how do these issues affect the industry on a larger scale.

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... 394 Raustiala & Sprigman 2006, p. 1722, 1733, Raustiala & Sprigman 2009, p. 1203-1205, 1225, Raustiala & Sprigman 2012, p. 34 and Sprigman 2017. See also Härkönen 2020b, p. 171, Beebe 2017, p. 574, Sapir 2020, p. 63, Kaiser 2012, p. 50 and Cline 2013, p. 109-115. 395 Raustiala & Sprigman 2012. ...
... Article III: Härkönen, Heidi: Fashion piracy and arti cial intelligence-does the new creative environment come with new copyright issues? Journal of Intellectual Property Law & Practice, 2020, Volume 15, Issue 3, p. 163-172, by permission of Oxford University Press (Härkönen 2020b). ...
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This doctoral dissertation investigates the applicability of the copyright framework to fashion designs from the perspective of sustainable development. The dissertation is based on five (5) peer-reviewed articles and an integrative chapter. In addition to legal research methods, this multidisciplinary thesis utilizes fashion research. The research systematises the European Union copyright framework and analyses its relationship to fashion. It has a special focus on the distinction between ‘applied art’ and ‘pure art’. The effects of this distinction on fashion are being investigated. The research analyses how the copyright framework of fashion relates to sustainable development of the fashion industry and the sustainability-related challenges that the industry is struggling with. Sustainable development is viewed from the perspectives of environmental, social and cultural sustainability. The research notes that the European copyright equilibrium has included various structures that have discriminated against works of applied art, which has had direct effects on the level of protection of fashion designs. The discriminating structures, however, are now vanishing due to recent judgements from the Court of Justice the European Union. The research argues that this copyright law development fosters sustainable development in fashion. A copyright framework where fashion designs face extra challenges compared to works of pure art when reaching for protection is facilitating the so-called ‘fast fashion’ phenomenon and -business. Fast fashion in general has negative effects on sustainable development. Moreover, the copyright system includes ‘blind spots’ that allow activities that are counterproductive to cultural sustainability, such as cultural appropriation copying. However, not all fashion copying has negative effects on sustainable development. The research also points out that some copyright law exceptions, such as those permitting private copying, might even be desirable from the perspective of sustainable development. The research furthermore evaluates what kind of sustainability-related copyright challenges the fashion industry might face in the future due to the development of AI designers. Finally, the research presents how copyright law should tackle the aforementioned challenges, and what kind of values and arguments should be considered. The research concludes that copyright can be one of the many legal instruments that can promote sustainable development in fashion.
... According to Heidi Härkönen (2021), the copying culture of fast fashion, enabled by the inability of IP law to protect fashion design works, is intrinsically linked to the environmental, social and cultural unsustainability of the fashion industry. This problem worsens if artificial intelligence starts designing: the non-human designer falls into the public domain that cannot be protected, while potentially being extremely fast and excessively productive (Härkönen 2020). Furthermore, von Busch (2016; himself suspected that open design might amplify a neoliberal attitude, inequality and hierarchies instead of flattening them, giving power to those who already have it: "The very narrative of the maker-community has a tendency to see the individual as an entrepreneur or self-employed factory-worker, where every participant is an 'army of one,' their own soldier of fortune" (von Busch 2016, 138, English translation by von Busch). ...
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This doctoral thesis investigates how the field of fashion design is affected by the current transformations in technological environments of “fashion 4.0”. Contributing to fashion studies and design research, the theoretical framework of this qualitative research draws from authorship theorisation, sociology of professions and posthumanism. The empirical multiple-case study research focuses on four pioneering, technologically advanced “fashion 4.0” fashion design practices, where the creation happens in virtual spaces and is shared with non-professionals, networks or machines. The case studies are The Fabricant, Atacac, Self-Assembly and Minuju. The primary data were collected ethnographically through semi-structured interviews and field observation and complemented by written or spoken material generated by the cases. The secondary data consisted of media publications on the cases. Research material is analysed using the reflexive thematic analysis method. The article-based thesis consists of four publications and an introduction. Publication I, “From Worth to Algorithms: The Role and Dimensions of Authorship in the Field(s) of Fashion Design”, is a conceptual investigation of fashion designers’ authorship in relation to their profession and contemporary digital practices. Publication II, “Open-Source Philosophy in Fashion Design: Contesting Authorship Conventions and Professionalism”, delves into open-source philosophy as a design approach that contests conventional fashion designership, analysing the phenomenon through three empirical case studies. Publication III, “Digital 3D Fashion Designers: Cases of Atacac and The Fabricant”, looks closely at two case studies that represent the rise of digital(-only) fashion and liquify the boundaries of fashion designership. Publication IV “Just Hit a Button!’ – Fashion 4.0 Designers as Cyborgs, Experimenting and Designing with Generative Algorithms” explores algorithmic fashion design as a posthuman dimension of designership and proposes the concept of a cyborg designer. The thesis provides new knowledge on the authorship and professionalism of “fashion 4.0 designers” operating in the digitalised society. It is argued that the new (sub)field of digital fashion contributes to the re-professionalisation of fashion design through open-source philosophy, posthuman discourse, intellectualisation of fashion practice, novel employment possibilities and entry to the gaming and technology fields. Fashion 4.0 practices are changing the ideals of fashion design from the autonomous designer to a community player and metathinker who adjusts their skills according to projects, collaborators and co-creators. The fleshiness of fashion design transpires in digital fashion practices in which designers use digital technologies as design companions, ledgers of their tacit knowledge, sites and materials of creation. Fashion 4.0 designers are characterised by fluidity between digital technologies, human networks and physical realities.
This title focuses specifically on the role, action, and legacy of the Court of Justice of the European Union (CJEU) in the field of copyright, providing an exclusive survey that covers two decades (1998–2018) of decisions in this area. The main objective is to give a sense of the direction of EU copyright, by attempting to ‘tidy up’ and rationalize existing rulings. The book consists of three parts. The first part explores the role of the CJEU in copyright cases. Besides outlining the history of EU harmonization and providing data concerning the Court’s activity, it extracts the key standards employed in copyright case law, explains their meaning and significance, and undertakes a novel statistical analysis aimed at mapping relations between said standards. Following a discussion of the impact of CJEU interpretation of certain provisions (notably their preemptive force on Member States’ freedom), the second part concerns CJEU action (and vision) in respect of three key areas: economic rights, exceptions and limitations, and enforcement. The final part focuses on CJEU legacy broadly intended. It tackles the effect on national copyright laws and the current policy discourse around EU copyright reform. As regards the former, the book discusses the default consequences of the departure of a Member State from the EU, with a special focus on Brexit. In relation to the latter, attention turns to a number of areas which need to be considered in light, not just of existing legislation, but also—and perhaps most importantly—existing case law.
From the shopping mall to the corner bistro, knockoffs are everywhere in today's marketplace. Conventional wisdom holds that copying kills creativity, and that laws that protect against copies are essential to innovation -- and economic success. But are copyrights and patents always necessary? In The Knockoff Economy, we argue that creativity can not only survive in the face of copying, but can thrive. The Knockoff Economy approaches the question of incentives and innovation in a new way -- by exploring creative fields where copying is generally legal, such as fashion, food, and even professional football. These important but rarely studied industries reveal a nuanced and fascinating relationship between imitation and innovation. In some creative fields, copying is kept in check through informal industry norms enforced by private sanctions. In others, the freedom to copy actually promotes creativity. High fashion gave rise to the very term "knockoff," yet the freedom to imitate great designs only makes the fashion cycle run faster -- and forces the fashion industry to be even more creative. The Knockoff Economy ranges from food to font design to football plays to finance, examining how and why each of these vibrant industries remains innovative even when imitation is common. There is an important thread that ties all these instances together -- successful creative industries can evolve to the point where they become inoculated against -- and even profit from -- a world of free and easy copying. And there are important lessons here for copyright-focused industries, like music and film, that have struggled as digital technologies have made copying increasingly widespread and difficult to stop. By looking at markets that fall outside normal IP law, The Knockoff Economy demonstrates that not only is a great deal of innovation possible without intellectual property, but that intellectual property's absence is sometimes better for innovation.
The Cofemel Decision Well Beyond the "Simple" Issue of Designs and Copyright
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Cofemel (n 44) para 29-35. See also E Rosati, 'The Cofemel Decision Well Beyond the "Simple" Issue of Designs and Copyright" (IPKat, 17
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Sprigman (n 6) 256; Raustiala and Sprigman (n 4) 1705-17.
AIDA: Annali italiani del diritto d'autore, della cultura e dello spettacolo XXVII 2018 (Giuffrè Francis Lefebvre Milan 2018) 243. On authorship see, eg A Bridy
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See also: D Jongsma, Creating EU Copyright Law: Striking a Fair Balance (Hanken School of Economics 2019) 25, 33; E Rosati
Infopaq International A/S (n 45) para 33-37. See also: D Jongsma, Creating EU Copyright Law: Striking a Fair Balance (Hanken School of Economics 2019) 25, 33; E Rosati, Originality in EU Copyright (EE Cheltenham 2013) 3, 107-09;
A Tale of Two Copyrights: Literary Property in Revolutionary France and America' (1990) 64(5) Tulane Law Review 991
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Bridy (n 50) 401. See also J Ginsburg, 'A Tale of Two Copyrights: Literary Property in Revolutionary France and America' (1990) 64(5) Tulane Law Review 991.
The New Copyright Directive: Text and Data Mining (Articles 3 and 4)' (Kluwer Copyright Blog
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Directive (EU) 2019/790 (n 14) art 4. See also B Hugenholtz, 'The New Copyright Directive: Text and Data Mining (Articles 3 and 4)' (Kluwer Copyright Blog, 24 July 2019) < 2019/07/24/the-new-copyright-directive-text-and-data-mining-articles-3-and-4/> last accessed 16 January 2020.