AI and fashion: Fashion Law London
Artificial intelligence (AI), and how the fashion industry can follow Alibaba’s lead in tackling counterfeits were among the topics discussed at Fashion Law London last Friday, February 28.
The conference, organised jointly by Rosie Burbidge (partner at Gunnercooke), Eleonora Rosati (of counsel at Bird & Bird), and Giulia Gasparin (senior legal counsel at River Island), touched on several areas of law especially pertinent to the fashion industry, including IP.
Like many other industries, fashion is grappling with the potentially transformative impact of emerging technologies such as AI.
Ijaz Akram, CEO and founder of Mindmix, argued that China in particular had reaped the benefits of investment and a willingness to invest in new tech. “It’s not about the number of nuclear missiles you have, it’s about the number of computer scientists you have,” Akram said.
China’s deep well of highly-trained computer scientists, as well as a political and regulatory framework amenable to the gathering of huge amounts of data, had given it an edge over competitors, he argued.
His argument seems to stand up looking at the example of Alibaba, which has used algorithms and automation to great effect in tackling the spread of counterfeits on its platform.
According to the company’s figures, Alibaba processed 96% of all takedown requests during business days within 24 hours in 2018.
Graham Clemence, Alibaba’s senior director of global IP enforcement and security, attributed the company’s growing efficiency in processing notice and takedown requests to a combination of automation and big data.
“The more information you give us, the more automated it becomes...the more info you put in, the more it helps the machine learn,” Clemence said.
The role of AI in fashion is not limited solely to enforcement, even though this is particularly crucial for an industry constantly at war with counterfeits.
As both Akram and Rosati noted, we have already seen the automation of fashion design itself to different extents, citing examples like personal styling service Stitch Fix, and Glitch, which calls itself the “world’s first AI-designed fashion brand”.
For AI to be at its most effective in predicting trends and consumers’ potential purchasing decisions, it needs the input of vast amounts of data. As Gasparin noted, fashion brands looking to make use of this data must make sure that they are compliant with the stringent data protection rules and regulations (namely the General Data Protection Regulation in the EU), and keep abreast of forthcoming changes to the regulatory framework anticipated by the European Commission's latest white paper on AI.
Rosati also pointed out that databases themselves can be protected by copyright or a sui generis database right, presenting potential licensing issues.
Case law update
Meanwhile, the past year has produced several high-profile trademark and copyright decisions for fashion brands to digest. Arguably the most significant was the Court of Justice of the European Union’s (CJEU) ruling in Cofemel v G-Star Raw, issued last September.
In that decision, the CJEU clarified that originality is the only criterion required for a design to be protectable by copyright. Any laws in individual EU member states that require an “aesthetic effect” for copyright protection, or confer it solely on that basis, would be incompatible with the EU’s InfoSoc directive, the court ruled.
As Rosati said, the decision reiterates the importance of originality above all else when it comes to copyright in the EU. “It should not be the case that copyright is ‘easier to get’ as a result of this decision,” she said, “as long as you engage seriously with the originality requirement”.
She noted that the threshold for originality was “low, but not non-existent”, citing several decisions, also from other jurisdictions, including the UEFA Champions League trophy, which had fallen short of meeting this requirement before the US Copyright Office.
Elsewhere, many had expected the court’s ruling in Sky v SkyKick to be the biggest trademark decision in recent memory. But, as it happened, the SkyKick ruling ended up being somewhat pedestrian compared to the wide-ranging implications of last year’s advocate general (AG) opinion.
As a result, Burbidge said, other CJEU decisions such as Koton v EUIPO were now “getting a lot more attention and their importance has been elevated because of how SkyKick turned out”.
If followed, the AG’s SkyKick opinion could have marked the end of broad registrations for arguably vague specifications such as ‘ computer software’. Specific to fashion, one lawyer suggested to WIPR following the opinion that similarly broad registrations for ‘clothing’ could also be in danger.
According to SkyKick, companies like Sky should have to specify much more precisely what kind of computer software they use the mark for.
“You don’t necessarily want to pigeonhole what your software will be at too early a stage, so the SkyKick decision is beneficial for some brands,” Burbidge said.
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