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

The fashion industry is affected by an imbalance of power that goes beyond the outsourcing of part of the manufacture to developing countries. Said imbalance characterizes the whole supply chain and hinders freedom of expression, freedom to conduct business and, hence, creativity and innovation. In order to understand fashion, IP lawyers and lawmakers need to take into account that the law is not the main device for regulating the relevant relationships. Indeed, fashion is a closed community, a family where complaining is rather frowned upon and where contracts do not reflect the actual relationships between the parties.

In order to rebalance power, this article explores the possibility of treating good faith and inequality of bargaining power as unifying principles of contract law. However, in light of the evidence collected during a number of in-depth interviews with fashion stakeholders, it seems clear that social norms are the main source of regulation of relationships and, therefore, intervening at the level of the contracts may not be helpful. Competition law, in turn, may be of more help in rebalancing power; however, cases such as Coty v Parfümerie Akzente do not augur well. Moreover, competition law is useful when the relationship is over, but it is in all the stakeholders’ interest to keep the relationship alive while fixing its imbalance. This study confirms recent findings that social norms do not just have a positive impact on fields with low IP-equilibrium and sheds light on the broader consequences of the reliance on social norms and on its relationship to power imbalance.

This work makes a twofold recommendation. First, IP lawyers should engage more with the unfamiliar field of social norms. Second, advocates of a reform of IP aimed at transforming the industry into an IP-intensive one should be mindful that the effort may prove useless, in light of the role of social norms, especially if power is not distributed.

This is the abstract of Guido Noto La Diega, ‘Can the law fix the problems of fashion? An empirical study on social norms and power imbalance in the fashion industry’ (2018) Journal of Intellectual Property Law & Practice, jpy097, https://doi.org/10.1093/jiplp/jpy097

Please find the full text here

Published by guidonld

I am Associate Professor of Intellectual Property Law and Privacy Law at the University of Stirling, Faculty of Arts and Humanities, where I lead the Media Law and Information Technology Law courses. I am an expert in the legal issues of Internet of Things, Artificial Intelligence, cloud computing, robotics, and blockchain. Holder of a PhD (Unipa), a postdoc (QMUL), and an HEA Fellowship, I have a strong publication and bidding record and my works on Intellectual Property, Data Protection, Information Technology Law, Consumer Protection, and Human Rights have been cited by the EU Court of Justice’s Advocate General, the House of Lords, the European Commission, and the Council of Europe. Outside of the University of Stirling, I am Director of ‘Ital-IoT’ Centre of Multidisciplinary Research on the Internet of Things, Visiting Professor at the University of Macerata, Fellow of the Nexa Center for Internet and Society, Fellow of NINSO Northumbria Internet & Society Research Group, and I serve on the Executive Committee of the Society of Legal Scholars, the oldest and largest society of law academics in the UK and the Republic of Ireland. Most of my publications can be downloaded for free on SSRN, ResearchGate, Academia.edu, and LawArXiv.

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