What does copyright taste like: recipes and their copyright protection

– What will you order, dear?

– Thank you for the menu! Can you tell me something?

Of course! Please, this is a very tasty dish, and even the recipe of the cook is protected by copyright!

“OH! How interesting! All right, I’m ordering!

Can you imagine such a dialogue in one of the Ukrainian restaurants? Is this a dream for the field of intellectual property! Personally, I believe in the heyday of copyright in Ukraine so much that such dialogues in the near future will become an everyday situation. Conversely, the lack of a registered prescription under current copyright law would be complete chutzpah and illiteracy for branded restaurants. Therefore, let’s taste copyright and reveal a recipe for its protection.

The most exciting issue remains the legal nature of culinary recipes. The UNESCO Department, preparing an answer on the status of such an object, proceeds from the fact that that the issues of intellectual property law are fully related to the scientific activity of the UNESCO Chair, the competence of which is determined by the Agreement on the Foundation of the UNESCO Chair on Copyright and Other Intellectual Property Rights, signed in Paris by the UN Director-General for Education, Science and Culture (UNESCO) of June 12, 1998.

Based on doctrinal interpretation and law enforcement practice, as well as taking into account the peculiarities of national legislation, the UNESCO Department gave the following legal conclusion:

  1. To correctly characterize the legal nature of culinary recipes, it is necessary, first of all, to determine the range of regulatory legal acts that should be applied.
  2. In accordance with the law, copyright applies to literary, scientific works, works of art that are the result of creative activity, regardless of the application of the work, as well as the method of its expression. Moreover, copyright applies both to published works and to undocumented, but existing in some objective form. The legislator lists the types of copyright objects, indicating, in particular, literary works, dramatic and musical-dramatic works, scripts, choreographic productions, musical works with or without text, audiovisual works, works of fine art, etc. At the same time, copyright does not apply to ideas, methods, processes, systems, methods, concepts, principles, discoveries, facts. These norms are fully consistent with the international legal framework for the regulation of relations in the field of copyright, as defined in the Berne and World Conventions.

If we talk about determining the nature of culinary recipes, guided by the above rules, then, at first glance, it seems obvious that they should be characterized exclusively as some ways of preparing dishes, and, therefore, as objects of civil law that are not objects of copyright. Such recipes can, for example, be objects of legal relations regulated by the norms (“Right to the secret of production (know-how)”). We emphasize that the exclusive right to the secret of production is valid only as long as the confidentiality of the information constituting its content is maintained. From the moment of loss of confidentiality of the relevant information, the exclusive right to the secret of production ends with all copyright holders. So, the publication of a culinary recipe means the automatic termination of the trade secret regime, if such was established by the copyright holder in relation to such a recipe.

Article 505 of the Civil Code of Ukraine Chapter 46 of the Civil Code of Ukraine (hereinafter referred to as the Civil Code of Ukraine), which is called the “Intellectual Property Right to Trade Secret,” provides that a trade secret is information that is classified in that sense, that it is generally or in a certain form and totality of its constituents unknown and not readily accessible to persons, which usually deal with the type of information to which it belongs, therefore has commercial value and has been the subject of adequate secrecy measures taken by the person lawfully controlling this information. Trade secrets can be technical, organizational, commercial, production and other information, except for those that, according to the law, cannot be classified as trade secrets.

Property rights of intellectual property to trade secrets are defined in article 506 of the Civil Code of Ukraine: the right to use trade secrets; exclusive right to permit the use of trade secrets; exclusive right to prevent the unlawful disclosure, collection or use of trade secrets; other property rights of intellectual property established by law.

The property rights of intellectual property to trade secrets belong to the person who legitimately determined the information with trade secrets, unless otherwise established by the contract.

Public authorities are obliged to protect from unfair commercial use information, which is a commercial secret and the creation of which requires significant efforts, and which is provided to the ​​im for the purpose of obtaining, established by law, permission for activities related to pharmaceutical, agricultural, chemical products containing new chemical compounds. This information is also protected by state authorities from disclosure, except when disclosure is necessary to ensure the protection of the population or measures are not taken to protect it from unfair commercial use (Article 507 of the Civil Code of Ukraine).

  1. The above characteristic correctly reflects the legal nature of only the recipe itself, as a way of preparing dishes. She does not take into account that the presentation of the recipe can be the result of independent creative activity. Elements of creativity may appear, in particular, in the name of the dish, in the description of the process of its preparation, etc. The most illustrative example is the presentation of a culinary recipe in poetic form. Obviously, in this case we are dealing with two objects of civil rights: in fact, a culinary recipe that is not protected by copyright, and a literary work in which this recipe is set forth and which is a full-fledged object of copyright. So, cooking recipes themselves are not objects of copyright and can be freely used by any person, for example, to prepare dishes. At the same time, the author’s texts containing a statement of these recipes, and are the result of the creative activity of the author, should be considered as literary works, full-fledged objects of copyright.
  2. Particular attention should be paid to cases when the culinary recipes themselves are the result of creative activity, that is, the composition, ingredients and/or methods of their use are new. Although in such cases the culinary recipe still does not acquire the status of a copyright object, the copyright character of the literary work in which such a recipe is set forth becomes even more obvious.
  3. Attention should be paid to the authorship of works that outline culinary recipes. In the absence of evidence of the opposite, the author of the work is the person indicated as the author on the original or copy of the work. This conclusion follows from the principle of presumption of authorship, which is recognized by international conventions and Ukrainian law.

Copyright protects only a work form, but not his contents therefore the recipe falls under protection only as the literary work. For example, if it is published in the recipe-book or his any other material fixing, like record on paper or on a videotape (with comments (orally in preparation time; in credits; synchronously on the screen) or without them). To provide right for contents of the recipe there are several ways: to take out on him the patent (protection thanks to the right of industrial property and to paint there technology of preparation, a way, etc.) or to turn the recipe into a so-called know-how (secret production with a specific combination of technologies), that is to store his contents unknown to the third parties. For example, as know-how are protected recipes of many liqueurs, drinks of Coca-cola holding, the known Vienna Zakher cake and others.

If to speak about the key moments of protection by copyright of recipes, then surely it should be noted that copyright doesn’t protect information on ingredients and ​​ methods of cooking and/or drinks. Therefore it won’t be necessary to get permission to following (observance of rules) of the recipe in preparation time of dishes. If to look how it is cooked defined a dish, then to write down the list of ingredients and a method of preparation by the own words, then such works won’t be considered as copyright infringement of the author of the original recipe. It is a bright illustration of the fact that creativity can’t be tied only to one expression and here the embodiment of the idea, her form, accompanying elements and creative approach takes place.

But how nevertheless copyright influences protection and protection of the rights for recipes? It is possible to claim safely that copyright is protected by a wide range of materials, in that even names as a part of certain works, such as written indication of recipes where the description of type and amount of ingredients, a way of preparation of a dish of this type or drink are specified. If the embodiment of recipes is about written, then it is necessary to distinguish also separate subjects of copyright which entered as components during creation of the literary and art work — the recipe. Support of recipes is about art: drawings, photos, collages, pieces of music, audiovisual works, videograms, logos and so forth.

Exclusive property copyright of the owner (author) of recipes is a little limited. It is dictated by the fact that the owner of exclusive property copyright of the recipe can’t prevent the third parties to create independently a dish, cocktail, etc., or to forbid to write the own description (oral or written), creation of any given culinary masterpiece. However, the author or the owner have the right to exercise control of observance of a compounding and implementation of the instructions specified in the written recipe which includes the following: 1) reproduction of a subject of copyright (for example, by copying, copying manually, scannings, copyings of the digital file or printing of the digital file, видеокопиювання, etc.); 2) transfer, placement, the public message of a subject of copyright (thanks to Skype communication, the Internet, fax, in the telephone mode, transfer by e-mail or TV, ridio-, Internet broadcasting, placement on Internet pages); 3) transfer of a subject of copyright (the close or literary translation taking into account specifics of origin of the recipe and category of persons for perception). And, other rights and ways of control of observance of exclusive property copyright of the recipe, are formed and reflected in the subject of contracts or license agreements, depending on the nature of further use of the work, and reflect their purpose.

Copyright, by the general rule, as well as concerning other objects, and on recipes, doesn’t protect: the ideas (for example, the idea to use blue cheese for ice cream, olives for decoration of salads; farshirovka of pepper, tomatoes, eggplants) the general accompanying information (for example, it concerns the list of ingredients for the concrete recipe taking into account caloric content, quality of products, the producer, the system of dispensing and weight) style, methods and technologies of preparation (under a condition if for a way the patent which falls under protection by the right of industrial property isn’t taken out) dishes of a various type — roasting of vegetables, smoking of meat or cleaned fishes. That is, we can draw a conclusion: if own description of how to make a culinary dish — souffle or cake is written, then it will be perceived as the literary work and to be protected in the general order defined in the legislation concerning such subject of copyright. And here new combinations, combinations or a ratio of ingredients, or a certain unique way of preparation aren’t important invented or methods, already known in the culinary world, are simply used.

If there is a desire to prepare dishes exclusively from a certain way of combined ingredients and/or thanks to the developed methods, then such a ​​informatsiyu can be kept secret. Since this was done by the well-known manufacturers of non-alcoholic drinks “Coke,” which keep the recipe secret from the competitors around them. To do this, they did not classify the entire recipe, but exclusively some of its ingredients, without adding which (so-called key components) drink will not have that original type, taste and physicochemical properties. Thus, if someone informs another person of classified information on a confidential basis with documentary confirmation of such an initiative, then another person discloses such ​​informatsiyu without appropriate written permits, and the owner of confidential information has the right to make official claims (we are even talking about claims to the court or appeal to law enforcement agencies) for violation of the requirements regarding the procedure for using information that refers to confidential. Moreover, in order to achieve success in the implementation and protection of confidential information, one should remember the following: conditions for confidentiality of information arise in their nature; trust obligations became known and accepted at the time of disclosure or derive from the context of the disclosure; unauthorized or threatened use of such information by third parties. Confidentiality for employees, as a rule, is announced at hiring, formalized by a written obligation and regulated by internal control systems at each enterprise, which introduced the following rules of protection against the dissemination of classified information, which became known in the performance of official duties.

Somewhat interesting is foreign experience in the protection of copyright for recipes as works of art. Indeed, if accompanying (finishing) elements for the specified recipe are used, then they are protected as separate copyright objects – photographs, works of art, videos, music and the like. But the recipe itself, according to German law, receives protection only when its text has the status of highly artistic, and not just represents an instruction for execution. And if we talk about our national legislation, then the Law of Ukraine “On Copyright and Related Rights” (hereinafter referred to as the Law) provides for the following provisions that are quite relevant for recipes that can be perceived as objects of copyright if they are embodied in material form in the form of a literary work. In Art. 8 of the Law, which refers to objects of copyright, part two provides that all works specified in part one of this article, both published and undocumented, both completed and unfinished, regardless of their purpose, genre, volume, goals (education, information, advertising, propaganda, entertainment, etc.). And part three of Art. 8 of the Law notes that the legal protection provided for by this Law applies only to the form of expression of a work and does not apply to ideas, theories, principles, methods, procedures, processes, systems, methods, concepts, discoveries, even if they are expressed, described, explained, illustrated in the work.

When we talk about recipes, in this case we can talk not only about the specified recipe, but also about the original name of the dish, which appears on the menu and affects the choice of the consumer when making an order. Therefore, the rule of the Law, which refers to the protection of copyright for part of the work specified in Art. 9 provides that the part of the work that can be used independently, including the original title of the work, is considered as a work and is protected in accordance with this Law.

And, of course, it is impossible to bypass the issue of the emergence and exercise of copyright, and the presumption of authorship, which is disclosed in the provisions of Art. 11 of the Law, and indicates that the subject of copyright for attesting to authorship (copyright) for a published or undocumented work, the fact and date of publication of the work or contracts concerning the author’s right to the work, at any time during the term of copyright protection may register its copyright in the relevant state registers. The Institution shall issue a certificate of copyright registration for the work. For issuing a certificate, a state duty is paid, the funds from the payment of which are transferred to the State Budget of Ukraine. The amount and procedure for paying the state fee for issuing a certificate is determined by law. A person who owns a material object in which a work is embodied (expressed) cannot prevent a person with copyright from registering it.

All the above norms are very closely intertwined with the nature of the implementation, management and organization for the use in the manner determined by the legislation of Ukraine of such a specific copyright object as recipes expressed in the form of literary works.

The problems of interweaving the form and content of the work are relevant. This is one of the most difficult and debatable questions in the aesthetics of perception of works. There are many scientific studies on this issue, and each author includes in this concept his attitude, which differs from others, therefore, there is no consensus on this issue. There can be no clear distinction between form and content in copyright works, accordingly, there can be no such criterion in the legal assessment of copyright objects for their compliance. This is confirmed by judicial practice.

In my opinion, the border between the non-originality of notation and the originality of recipe recordings is quite elusive, so the difference is quite difficult to trace. But it is impossible to point out similar points: the authors of both publications (if we talk, for example, about the author of original recipes with their own cookbook and the publishing house, which composed these recipes and issued their collection of culinary dishes) worked with material that was not created by them and not protected by copyright. The legal status of the results of their work should be determined taking into account comments on the nature of facts and predetermined materials (recipes, music notes, press reports, databases, etc.).

The difference between notation and compilation of recipe collections in delimiting the status of recipes in the understanding of lawyers to describe the situation and after in the case of borrowing original culinary recipes by one author from another for the publication of a recipe collection. Before borrowing, culinary recipes existed as a set of ingredients, and after that they received the status of a work of art due to the design of photo illustrations and the originality of the author’s submission. But if we compare the attitude of lawyers and judicial practice in determining the issue of borrowing in musical works, then the situation is radically different than in the issue of culinary recipes. When determining the essence of work behind musical notation, it is necessary to take into account the subjective, creative factor when using even exclusively technical means, skills, qualifications, feeling and understanding of music, its playback. The definitions of originality or not originality of the creation of texts of information messages, descriptions of the preparation of a certain culinary dish remain problematic, because the slightest intonation, text feint, video sample, original filing methodology is already able to claim the author’s attitude to his product of creativity.