The Case Against Copyright Protection of Food
26 Pages Posted: 6 Sep 2022
Date Written: August 25, 2022
This Article will discuss the interface between intellectual property law and food. While this interface could yield many discussions, I focus on the relationship between haute cuisine as a social and cultural phenomenon and copyright law. The goal of this Article is to explain the mismatch between intellectual property law generally, and copyright law specifically, and the protection of culinary products, and through such mismatch discuss general difficulties underlying copyright law. For this, I will suggest the thought exercise of protecting the visual outcome of gourmet dishes by copyright. It will allow me to make the case against copyright protection of food both normatively and descriptively. First, I will argue that haute cuisine is an efficient and flourishing market even absent copyright protection, thus making such protection redundant and unjustified. I will add that keeping copyright protection off food even makes this market more efficient due to its own piracy paradox. Second, and more importantly, I will argue that copyright protection of culinary products is unjustified due to broader cultural and distributive effects such protection may have. I will argue that the case of haute cuisine shows that despite copyrights aspiration to aesthetic neutrality, it appears that in many cases works of "high" culture are granted more protection than those of "low" culture. Such distinction, that has no place in copyright law, may lead to unjustified gaps between different groups of authors and consumers which does not fit copyright main goal – promoting authorship and access to expressions.
Keywords: Copyright, law and food, intellectual property, distributive justice
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