COPYRIGHTABILITY OF FOOD RECIPES – A THOROUGH ANALYSIS

Rudimentary Understanding Of The Conceptual Matrix Of ‘Copyrights’

Before applying the theoretical interpretation of copyrights specifically to food recipes, lets first try and grasp the definitional boundaries of this very concept. Now, owning a copyright lends a specific set of rights which include the right to use his or her work. But this right is established only when the to-be owner of the copyright fixes their work in a tangible medium. It should also be adequately permanent in nature so as to facilitate ease in determining its origin. The said work should also be the creation of a human author as it is prerequisite for acquiring a copyright over any work under Indian Copyright Act. It should also possess a certain degree or which can be described as ‘a modicum’ of creativity in it.   

Now as regards to copyrighting a particular food recipe goes, there can be many answers and it can seem trick, but this write-up will delve into resolving the confusion related to the same. At its end, the reader would receive a better understanding regarding the issue whether a food recipe is safeguarded under the protective cover of provisions of copyright act.

Definitional Contours Of Recipe And Their Trysts With IP

Now essentially, any recipe is at its core a fixed series of prescribed directions which are to be followed by the chef who’s trying to replicate it. Now, if we break down this array of procedural specifications down to each individual instruction, then we would be left with raw or processed food items which are patentable by themselves, but only if they’re of the later type. But the instant issue strictly concerns itself with the final product that is an integration of its constituent ingredients.

A scenario can be envisioned wherein such a step-by-step description is liable for patent protection, mainly for its specific ‘formula’, which mandates the proportions of its components. Furthermore, a design patent can be applied for, to protect the unique style of plating a dish which comprises of some recipe. This again, does not make the recipe itself a probable contender for IP protection.

Moreover, a recipe is generally not formulated with an intention of restricting its production by other chefs. In no way is the unique assembly of ingredients meant to be restricted to a single chef who thought of it. In its definitional contours, a recipe envelopes a permission to be copied mainly because it is also difficult to ascertain its originality and trace it back to one particular creator.  

Copyrights On Recipes – Is There Any Way?

If a particular recipe is a part of an encyclopaedic format of myriad other recipes then, such a format can be published as a book which would be a good candidate for receiving copyright protection.

This is because expression of work, is a pivotal factor in securing a copyright for it. The Apex Court explicitly elucidated upon this in the R.G.Anand case wherein the court while concurring with an English court observation, opined that, “Copyright does not subsist in ideas or schemes or methods; it is restricted to their expression only…”.

Therefore , an expression of the recipe which unique to an author can be copyrighted since it squarely fits the terminological definition of the term ‘literary work’ under the Indian Copyrights Act. So, if you’re contributing to a recipe in a substantial manner, by adding an additional step that is not merely just a procedure, then your product can procure IP protection, especially under patents. But then such a creation needs to have a date of creation or a date stamp on it, for leaving the possibility of copyrighting it, open to its creator.

But still, the recipe just by itself, surely won’t get a copyright and would be free to be copied, rewritten and published somewhere else. Mainly because, at its bottom, a recipe is just ingredients enlisted in a particular order. There exists no provision for copyrighting a factual representation of basic individual components. As said earlier, a unique expression, commentary, advice, or suggestion in addition to a recipe can be copyrighted but the enlisted ingredients, the order of entering the utensil on the stove, the proportion, etc. would always remain free for publication, recreation, or for circulation elsewhere and won’t require any permission of the creator of a particular order or sequence of ingredients.

Section 2 of the Indian Copyrights Act, 1971 is the defining provision of the said statute and it encapsulates various terminologies embedded within the statute, into fixed meanings. Now, the courts are free to progressively interpret such provisions in the context of the case and the times in which a compelling argument is being pleaded. Otherwise, the scope of such defining provision is strictly limited and the courts have to go by the book and follow the textual protocol by restricting the grant of copyrights to things that are outside the ambit of such provisions. And in this section, there seems to be no textual construction which can be expanded to cover copyrights on recipes as well.

Other Modes of IP Protection – All about Patents & Trade Secrets

Now the main problem with patenting a particular dish or a food recipe through the medium of patents lies in the fact that there is an extensive amount of prior art processes already existing in this arena. Most of the methods of preparation, be it roasting, frying, barbecuing, grilling, blend-mixing, etc are all included in the prior art of cooking patents. Therefore, when one comes up with some novel technique of making a dish, it generally happens to contain the methods or ingredients that are already existing in the public domain.

Furthermore, any patent essentially requires three factors; firstly, that it has to be new, next that the process or the product has to be novel and lastly, such a method needs to be comprised of an inventive addition and not an obvious one. Now considering all the requirements of these steps in the backdrop of all the home and professional chefs in the world, there is ample amount of pre-existing knowledge and this makes it difficult for any recipe to secure a patent as well.

Other patents related to food and culinary arena are the equipment patents which are granted for gadgets and products that modify the processes of cooking. Things like roti-makers, modern one-touch blenders, food processors, safe-use cutters, etc. are covered and enveloped in the ambit of such patents. Such gadgets cover not just the equipment itself but the product also cover the method of cooking which it modifies. But again, this is irrelevant to and essentially does not support the patentability or copyrightability of food recipes.  

But irrespective of the above observations, the author would like to shed light upon the pre-existing risks which are involved after securing a patent for one’s recipe. Firstly, the creator faces a grave risk of losing his rights in just twenty years, since it is the expiration period of any patent and subsequent to which, his or her unique blend of ingredients would still fall open to be copied in the public domain. Which is why, a long-term and strategic IP-management program dictates that the creator should rather opt for securing his product under trade secrets and not under patents. The best and glaring example for the same is the secret concoction of ingredients used by the company Coca Cola for making their soft drink.