Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry

Abstract

... It does not seem controversial that intellectual property law is not fit for the fashion industry.1 From this consideration, the call on lawmakers to amend existing laws2 or current jurisprudential approaches3 usually follows in order to ensure creativity be rewarded. Conversely, some argue that there is no need for reforms, because fashion is regulated by social norms,4 and the industry ‘benefits from widespread copying’.5 There is a resurgence of studies showing how innovation thrives without the need for legal monopolies.6 Researchers,7 however, recently have shown how the regulation of creativity by social norms is not necessarily only a positive fact. In the same vein, this author has been carrying out empirical qualitative research to map social norms and how these are interwoven with power imbalance throughout the fashion’s supply chain. If the law, including intellectual property law, is not a primary concern for industry players, potential reforms risk being useless, if not accompanied by broader interventions that address said imbalance. Fashion is a reminder that economic rewards are not the only incentive to creativity. However, one should not take for granted that alternative incentives be better than IP rights. A low-IP equilibrium can be negative if some stakeholders can leverage their power to get away with unfair practices, like certain big brands’ tendency to copy clothing designs from young designers and small apparel companies.8 Power imbalance reduces freedom of expression, thus hindering creativity. Rebalancing the fashion supply chain could, therefore, ensure fairer relationships, as well as more diverse and creative expressions.