The time is ripe for change

Speak to members of the fashion industry - whether they are designers, retailers, wholesalers or manufacturers - and a few things become immediately apparent: they are passionate about design and product integrity and frustrated at their perceived inability to protect their creative endeavour from copyists.

And despite many wanting to retain a local manufacturing base, feel they can no longer do this if they want to remain competitive on price and avoid being a target of the Fairwear campaign.

In relation to protection against copyists, designers are able to register their designs with IP Australia to give them a monopoly in any design which is "new and distinctive".  However this is often seen as too high an administrative and cost burden, particularly for new and upcoming designers who are often the group most at risk.

In the European Union designers have greater protection in their designs as "unregistered design rights" subsist in EU countries, meaning designers do not have to go to the effort of registering their designs with a governing body to ensure protection. This makes the design protection more akin to copyright protection, which Australian designers were able to rely on until mid 2004 when the law changed.

Copyright is an unregistered right against being copied, and enabled designers to get on with the job of designing, knowing that if they were copied, they could pursue the copyists by proving their authorship of the design in question.  That is no longer the case as, without a registered design (except in very limited cases), the designer will have no recourse.

Further, the EU has a six-month grace period during which designers can choose to register their designs, giving them a significant advantage to be able to test their design in the marketplace before deciding whether to pursue registration.  In contrast, in Australia any public disclosure of the design before the design application is filed will be fatal to registration being granted.

The time is ripe for change in the protection of Australian fashion design to ensure that our designers are not at a disadvantage both when compared to the international position, and compared to the protection they previously had under copyright.

In relation to local manufacturing, there is still strong support for the local manufacturing base. However, many designers are frustrated that, while the "Fairwear" campaign of the TCFUA has merit in its aim (being to protect outworkers), its implementation has left many designers and manufacturers feeling they were being asked to do too much by guaranteeing the compliance of all in their supply chain with the outworker protection laws.

When coupled with a TCFUA campaign that appeared aimed to "name and shame" any designers who used non-complying third parties (often unknowingly), the attractiveness of offshore manufacturing has become too great for many to resist.

We now have a new government and a new opportunity to reconsider these issues and how to best protect this vibrant and vital industry.  The Rudd Government has expressly stated its support for the design industry, and in January this year the Minister for Innovation, Industry, Science and Research, Senator Kim Carr, announced a wide ranging review of Australia's national innovation system to be conducted by an expert panel.

The review recognises the importance of innovation as a driver of productivity and confirms the Rudd Government's commitment to the encouragement of innovation. The fashion industry should embrace this opportunity to put forward its views and encourage debate on the issues which are vital to its continued strength in the Australian economy.

For more information on the government review of the TCF industry and for your chance to make submissions, visit innovation.org.au.