dimanche, février 27, 2011

Belgium: Cookery and rights protection: a recipe for disaster

The growing success of cookery books in Belgium has revived the issue of how to protect the intellectual property in recipes. The Belgian courts have recently considered two cases involving the protection of some of Belgium's finest culinary specialties: a series of recipes using Belgian beers and a recipe for a spread made from speculoos, a type of ginger biscuit. In both cases the recipes were weighed in the IP scales and found wanting.

Cases

The Liège Commercial Court was asked to rule on the copyright protection of a series of recipes incorporating various Belgian beers. It began by stating that the compilation of a recipe involves a twofold process: the creation of the recipe itself and the description thereof (eg, in a cookery book). Both aspects had to be examined in order to determine whether they could be protected by copyright law.

The court held that the beer-based recipes in themselves lacked original character because the claimant had merely reproduced recipes from the public domain, as any amateur or professional chef could do. Considering the presentation of the recipes in the claimant's book, the court found that the claimant had merely listed the required ingredients and written a series of functional instructions on how to produce the finished dish. The court found no evidence of artistic creation in the instructions and therefore concluded that the claimant's book lacked originality. Moreover, the court observed that many other books containing beer-based recipes had been published before either the claimant's or the defendant's book. On the issue of originality, the court stated that:

"Like many amateur or professional chefs, the claimant has mined his ideas from the rich seam of pre-existing traditional recipes in the public domain. Using one kind of beer - Orval, Silly or others - rather than another does not in any way constitute a sign of originality."

In the case involving the biscuit spread, the Ghent Commercial Court was asked to rule on the validity of a Belgian patent granted for a "speculoos product" which, according to the first patent claim, was a spread mainly consisting of a mixture of ground speculoos biscuits and fat.

The revocation claim was based on an assertion that the invention of the spread did not meet the patentability requirements of novelty and inventive step, since the essential technical characteristics of the product had already been disclosed in prior art - specifically, in a recipe for a speculoos pie that had been posted on a Dutch website before the priority date of the patent. The court agreed and declared the patent invalid.

Perhaps surprisingly, the claimant did not challenge the designation of the spread as an invention, although it is highly unlikely that the spread had the necessary technical character. In a previous, unrelated case - which involved an employee's claim for compensation in respect of his alleged invention of pre-prepared meals - the Ghent Labour Court stated that:

"Although the creations by the claimant undoubtedly have an important social surplus value, it has not been established that they can be considered as new. There is clearly a difference between, for example, an ALDI vol-au-vent, a Delhaize vol-au-vent and an ordinary vol-au-vent; nevertheless, the court is of the opinion that it has not been demonstrated that the aforementioned recipes can be considered 'inventions'."

Comment

As the popularity of cookery books reaches unprecedented levels in Belgium, calls for the protection of recipes as intellectual property are becoming louder. The two recent cases demonstrate that the question has developed from a largely theoretical discussion to an issue of practical importance.

A recipe is nothing more than a method of making a certain dish. Belgian legal experts and case law are generally consistent in the view that methods cannot be protected by copyright law, as they cannot be considered artistic or literary works. On this reasoning, it could be argued that a recipe in itself cannot be protected by copyright. However, this is not necessarily true of a description of the method - for example, in a cookery book - which has a strong claim to be considered as a literary work.

Most supposedly new recipes are based on recipes that have long been in the public domain, and they are often mere adaptations of these existing recipes. This raises the question of whether alterations to existing, non-copyright-protected recipes are sufficient to render a new recipe original, in the sense that it can be considered the author's own intellectual creation.
(1) The only answer is for the courts to examine originality on a case-by-case basis.

Moreover, in most cases recipes lack the novelty and inventive step required to enjoy patent protection. A recipe can easily be deprived of novelty by the disclosure of an earlier recipe (eg, on a website). Only highly innovative and non-obvious recipes - for example, in the realm of molecular gastronomy - are eligible for protection. However, even if patent protection is granted, its scope may be narrow - if a chef fails to think of or include equivalent or substitute ingredients in his or her patent application, the patent will protect only the narrow list of specified ingredients.

Although some protection should be provided to highly innovative recipes and sufficiently elaborate texts about them, over-protection of intellectual property may endanger one of the foundations of the culinary world - the free exchange of recipes and ideas. As four famous chefs have stated, "culinary traditions are collective, cumulative inventions, a heritage created by hundreds of generations of cooks".
(2) Therefore, legal experts are likely to take an extremely wary approach to attempts to extend IP rights protection to recipes.

For further information on this topic please contact Alexander De Bleeckere or Paul Maeyaert at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email (alexander.debleeckere@altius.com or paul.maeyaert@altius.com).

Endnotes

(1) See Infopaq International A/S v Danske Dagblades Forening (C-5/08).

(2) Ferran Adria, Heston Blumenthal, Thomas Keller and Harold McGee, "Statement on the 'new cookery'", The Observer, December 10 2006.

Contributed by ALTIUS