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Could food be protected by copyright?

21. November 2018

By Maria Sol Porro

Since any student begins to study the law of Copyright in Argentina, we learn that this right protects the expression by a human being of ideas, procedures, methods of operation and mathematical concepts but not those ideas, procedures, methods and concepts in themselves. Typical examples of this exclusion were always weight loss methods, scientific theories and “culinary recipes”.

However, since a few years ago many chefs began to demand some recognition for the recipes and dishes created, according to the first ones, opening the subject to the following debate: does gourmet creation deserve to be protected by copyright? The answer to this basic question will determine if someone who plays the same dish as a chef must pay the author a certain right of remuneration or royalty.

As in any debate, we will always find the two positions: those in favor of recognizing the author’s copyright, basing their thinking on the need to protect the culinary creative act, comparing it with other artistic creations (musical, literary) that do they find protected. While on the other hand, we find the position contaria who argue that only can be considered “author’s dish” to that cooked by its author, and that any reallocation of this dish is by definition different from the first and, therefore, could not be protected.

However, despite the fact that the debate remains in force, a judicial or legislative solution has not yet been found in our country and, if there is a coincidence between both sides, it is difficult to find any of these areas. If we look beyond the borders, we will find that the issue also causes conflict in other countries. For example, in Spain the subject was discussed in the Cultural Federation of Associations of Spanish Cooks and Resposters, where the recognition of the gastronomic work is demanded in order to combat plagiarism among colleagues.

On the other hand, in the Netherlands, we find that the Court settled case law in a case of plagiarism of a box of chocolates (not only had the original recipe been copied, but also the shape and decoration of these) by declaring that the right Author can cover not only the aspect of the recipe (when a recipe is published in a book), but also its content and the successive executions that are made based on it. Finally, it is worth mentioning the denounce of an Australian chef against a Spanish chef, both with three stars Michelin, where the first accused the plagiarist, to which the Spanish chef defended himself referring to a “simple inspiration”.

Returning to Argentina, as mentioned before, our Copyright Law does not protect the recipes themselves, but rather how they are expressed, for example in a book. Thus, the recipe book of Doña Petrona or Narda Lepes (Argentinian chef) are protected as literary works, being forbidden the use by a third party of these works without their consent. However, it should be noted that the recipe itself is not protected. And therefore, anybody could reproduce it, in other words, in another book.

In this way, the debate is ongoing and the line of plagiarism and simple inspiration is very thin and very easy to cross while there is no clear regulation on this subject. Perhaps, with time, we will find ourselves in a future with a new protected work, since as we also learn from the beginning the art. 1 of the Copyright Law is not closed, if not merely exemplary, allowing the incorporation of new works.

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