Copyright is an exclusive right of protection granted to the owner of any original work of authorship. This kind of protection generally extends to all kinds of literary, dramatic, musical, arististc, cinematograph film, sound recording etc. But there is no black-and-white certainty when it comes to the grant of copyright. In some situations involving works of a distinct character, a grey arise may arise making it difficult to analyse whether the said work is subject to copyright protection or not. One such case is that of cooking recipes.
Scope of Copyright protection
Copyright protection is available only for works that are in the form of expressions. Any work that can be expressed in a literary, dramatic, musical, or artistic form shall come within the ambit of copyright protection. This means that qualitative elements like ideas, procedures, methods of operation, or mathematical concepts cannot be copyrighted.
Cooking recipes consist of various ingredients, methods, and directions used for making a dish. A mere set of ingredients or procedures required for cooking a dish cannot be protected by copyright law. A recipe needs to be expressed in some literary form in order to receive copyright protection. Expressing a recipe in literary form means that the inventor of the recipe ought to ensure that the recipe is accompanied by substantial literary expression in the form of an explanation or direction and also ensure that some illustrations and pictures have been incorporated. Upon registration of such a recipe, the copyright protection would cover all but the list of ingredients used for preparing the dish, the procedure for making the dish, or the resulting dish itself. The registration will also not cover the activities described in the work that are procedures, processes, or methods of operation, which are not subject to copyright protection.
Another way by which one can get a recipe copyrighted is through a written compilation of multiple recipes in the form of a cookbook. Since a cookbook is in a book-form, the recipe can receive protection by way of copyright in its entirety.
A copyright is available in public forum and hence, if the inventor of the recipe wishes to gate-keep it, then, availing copyright might not be the suitable option. They can opt for some other form of protection for their recipe.
A trade secret is a kind of intellectual property which is confidential in nature and hence, is capable of giving any organization an edge over its competitors.
Characteristics of a trade secret
- The information must be confidential in nature
- The information must hold a commercial value
- The information must be capable of giving a competitive edge to an organization
- Steps must be taken in order to maintain the confidentiality of the information
Registering an information as a trade secret may serve useful in gatekeeping it. Many times the inventor of a technical information or commercial information may not wish to reveal it to the public at large by registering for copyright, instead, they would hope to ensure the confidentiality of the information. Trade secret protection is useful in such situations.
Sometimes, cooking recipes are passed on from generation. Families often have generation-old recipes which have a potential economic value. If one were to start a business in food retail, they would have to ensure that the said recipe is kept a secret, otherwise, there would not be anything unique about the product that they are offering to the customers. The method or procedure for producing a product or service, around which a business revolves, has to be confidential to some extent for gaining a competitive advantage over its competitors. Even large organizations like Mcdonalds or Dominos have signature dishes which follow a particular recipe which is unknown to the public at large. The basic ingredients are in the knowledge of the general public, but the exact process or quantity of ingredients used is classified information. It is because of that, that their food tastes the same across all branches. If instead of protecting their recipes as a trade secret, these organizations choose to get the recipes copyrighted or patented then, their predominance in the industry would suffer extensively.
Author Details: Sonakshi Pandey- Symbiosis Law School (NOIDA), in case of any queries please contact/write back to us via email to firstname.lastname@example.org or at Khurana & Khurana, Advocates and IP Attorney.