May 14, 2021

Can you have your cake and eat it?

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aaeaaqaaaaaaaauwaaaajgqzytq5m2zmlty2mdqtngmzns1imwmxltcwmtfmntmzzwvimaBy Vicky Stilwell Contributed by KISCH IP From ILO

Intellectual Property South Africa

Introduction
Copyright law
What is a recipe?
How can you protect a recipe?

Introduction

In the internet and digital media age, it is possible to find information on any topic at the click of a mouse. For example, if you want to cook something, you can search a few keywords and find more recipe options than you could ever need. But to what extent do IP laws – specifically, copyright laws – protect recipes?

In the United States, the Copyright Office has issued guidelines for copyrightable works, which specifically state that “copyright law does not protect recipes that are mere listings of ingredients… Copyright protection may, however, extent to substantial literary expression – a description, explanation or illustration, for example – that accompanies a recipe… or to a combination of recipes, as in a cookbook”.

The Australian Intellectual Property Office has also issued useful guidance regarding copyright protection for recipes, which states that “the owner of copyright in a recipe has certain limited rights to control the manner in which their written recipe is used. This does not include, for example, preventing people from making the dish or from writing their own descriptions on how to make it”.

In other jurisdictions, it has been held that recipes cannot be protected by way of copyright because they:

have a functional nature; and
constitute processes, methods or procedures, which – under the legislation of certain countries – are specifically excluded from copyright protection.
South African copyright law contains no specific provisions relating to whether recipes are copyrightable works, and the South African courts and IP governing authorities have established no principles or guidelines in this regard. Therefore, to assess the question of whether recipes qualify as copyrightable works in South Africa, the basic principles of South African copyright law must be examined.

Copyright law

The Copyright Act (98/1978) provides protection for various types of work, including literary and artistic works. In order to qualify for protection, a work must be original. The threshold for originality is low and the work need not be unique or inventive in any way. All that is required is that:

the work is a product of the author’s own labour and skill; and
there has been sufficient application of the author’s mind.
However, the South African courts have argued that the exercise of the author’s skill and judgement must not be so trivial that it could be characterised as a ‘purely mechanical exercise’.

The courts have found that some compilations can be protected as literary works, such as:

wage and salary forms;
statement of account forms;
spare parts catalogues;
numbering systems for cataloguing medical services for medical-aid scheme purposes;
sports fixtures and listings; and
vehicle codes and valuations.
Conversely, the courts have also held that the layout of diary pages does not qualify for protection as a literary work.

It is easy to see why someone would want to argue that a recipe qualifies for protection as a copyrightable work – some chefs would argue that a dish is the result of hard work and creative input and a product of their labour and skill.

What is a recipe?

In its simplest form, a recipe is a set of instructions for achieving a particular result. In this regard, it has been argued that the possibility of obtaining copyright protection for a compilation of facts, if any, will depend on the order of the specific facts, not the individual facts themselves.

Copyright legislation in many jurisdictions prevents materials constituting a set of instructions from qualifying as copyrightable works. The South African Copyright Act contains no specific exclusion in this regard, nor have the South African courts had to rule on this issue.

Applying the originality principles set out in the Copyright Act and South African case law, it is unlikely that copyright protection could be obtained for a single recipe, unless it is expressed in a specific, creative or original manner. It is far more likely that copyright protection could be obtained for collections of recipes, such as cookbooks. Further, copyright protection could probably be obtained for photographs of the dishes featured in the book.

How can you protect a recipe?

Aside from the apparently limited instances in which copyright protection may be available, there is nothing in South African law that expressly precludes obtaining a patent for a recipe, provided that the requirements for patentability are met (ie, it must be novel, inventive and capable of being used or applied in trade, industry or agriculture). However, the stumbling block is that the threshold for novelty and inventiveness is far higher than that for originality in the context of copyright, and it is for this reason that most recipes would fall short of qualifying for patent protection.

The name of a dish or recipe could be protected by way of a trademark registration, provided that it is distinctive and used, or intended to be used, in the course of trade.

However, if a party really wants to protect its recipe to the extent that it does not want anyone to be able to copy or make it themselves, it should keep it secret. This is the tactic employed by successful food and beverage producers, such as the Coca-Cola Company. Legend has it that no single individual employed by the company has knowledge of, or access to, the entire Coca-Cola recipe or formulation, although various individuals have access to certain elements. If patented, the recipe would ultimately fall into the public domain when the patent expired and would then be available to the public to use and copy freely. The fact that it is kept a closely guarded trade secret means that it can be protected indefinitely.

For further information please contact Vicky Stilwell at KISCH IP by telephone (+27 11 324 3000) or email ([email protected]). The KISCH IP website can be accessed at www.kisch-ip.com.

The materials contained on this website are for general information purposes only and are subject to the disclaimer.

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For more on this story go to: http://www.internationallawoffice.com/Newsletters/Intellectual-Property/South-Africa/KISCH-IP/Can-you-have-your-cake-and-eat-it

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