1. Non Conventional Copyright Subject Matter: Fragrances and Gastronomy
Dr. Cristiana Sappa
Centre d’Etude et de Recherche sur le Droit de l’Immatériel
(CERDI)
Rome, December 11th 2009

2. Introduction What are we talking about?
Definitions
Fragrances/perfums: intangible aromas of liquid or solid substances
Recipes and dishes: recipes are detailed series of instructions to prepare a dish. A dish is the
result which embeds an intangible taste.
Common denominators
- intangibility
- reference to chemical senses which are not considered the most relevant within the current society

3. Introduction How to make the link between fragrances, gastronomy and copyright
What is copyright? Copyright is an IPR granted to creative works of art. As all IPRs, Copyright is a strategic legal tool for development. By serving economic interests of creators and right owners as well as extra-patrimonial interests of authors, it fosters the social, economic and cultural development. Should copyright protect fragrances and gastronomy? Know-how is beyond the subject matter of protection. Fragrances and dishes are not simple know-how: they are creations realized thanks to some know how. They are often resulting from an « aesthetic » and not merely functional search. Should fragrances makers and chefs be considered as creators, in principle fragrances and gastronomy could be covered by copyright. Is it the case: are fragrances and gastronomy works of art? Are there arguments according to which copyright protection can cover fragrances and gastronomy as works of art? Are there any obsacles to the protection?

4. Subject Matter Fragrances and gastronomy as works of art
Works of art are expressed forms of human creations.
I. The creation is destinated to a communication (expressed form)
The expressed form can be perceived by one of the five senses
The description of a smell/taste work of art can be objective and stable
The perception of the expressed form may be subjective and this concerns every work of art
II. Art. 2 BUC presents a non exhaustive list of protectable works of art
Discrimination argument: according to constitutional principles it is not possible to provide with different protection to creators of different works of art genders
III. Within IP the current trend is very protectionist
How could we justify the exclusion of fragrances and gastronomy from copyright protection, in particular while other functional works are in?

5. Access Requirements for protection Fragrances and gastronomy as creative works of art
Copyright protects creative form of expressions only I. Originality/Creativity as the only requirement (?) Some jurisdictions ask for a qualified creativity (e.g. author’s print); some others require a simple creativity (author’s choices) II. Art. 2.2 BUC : fixation Common law countries require a fixation, while this is not the case in civil law countries III. Permanent Character Common law countries require it, while this is not the case in civil law countries Is it an obstacle to the protection?

6. The current approach How Courts interpretate the legal instruction on fragrances protection
In France: In the 70s first instances courts were not considering perfums as works of art, but as formulas of industrial products; In the early 90s first instance courts and appeal courts changed direction and admitted fragrances are works of art because of the imagination and taste which are necessary to their creation; Still the highest judicial authority (Cour the Cassation) is resisting to this approach and stating that fragrances are just a know-how. In NL: In 2004 a Court of appeal gave protection to a perfume composition. In Italy : No cases on fragrances protection. Some years ago the Italian CMO (SIAE) received a request to manage the rights over a “perfume” inspired to Eleonora Duse character.

7. The current approach How Courts interpretate the legal instruction on gastronomy protection
In France: There is a case case of a first instance court in 97 saying that a recipe is not a work of art because it is a simple serie of instruction, a method. It is a case about the literary recipe, like the previous rare cases on the issue and not about the taste message contained in the dish. In Italy: no cases

8. The current approach Which alternatives to copyright protection?
Reluctancy to copyright protection may derive from policy decisions taking into account signs appropriation/public domain interests
Other IPRs (individual, collective, certification trademarks, Gis, patents) may cover complementary products (perfume bottles, logos, packages, etc.).
In addition there may be some unfair competition/passing-off and contractual protection
Trade secret very much used to protect smell and taste works of art.
It is an appropriate solution when the information is hidden from the public view and the access requirements for protection are not necessarily fulfilled. Still it is risky!
Is it good to avoid copyright protection?

9. Some considerations on fragrances protection
As far as perfumes are concerned our society is punishing by liability rules the bad smells emissions but it does not seem to provide with an appropriate protection to smells even if this would be possible thanks to copyright law. Is this a good choice?
Is there a risk of overprotection, which would increment the costs in the creation process?
Should copyright be accepted by courts, which would be its boundaries: luxury fragrances only? Soap perfumes? Chocolate perfumes?
French fragrances business looks prosperous without protection; Italian design market was more prosperous with one only protection than with the current double copyright and industrial design protection. Fashion business is prosperous with many layers of protections….

10. Some considerations on gastronomy protection
As far as gastronomy market is concerned, in absence of protection there is some informal information trading and in particular a social norms-based system:
1)chefs do not copy on each other(design around) ;
2)if they share an information with someone, it cannot be repeated;
3)if someone develops a recipe he is credited as the father of it.
If someone is violating this practice: excluded from the community; status degraded, not given any further information.
The social-norms based system occurs when these social norms are enforced and some profit related to innovation is verified. In order to work appropriately this system needs the social norms to be stable and retaliatory (who is not respecting is punished; who is not joining in punishing is punished as well)
So the idea is that in some cases the lack of IP rules is substituted by social norms. Does this means that IP protection is necessary in this area? At least it means that IP is not blocking the creativity

11. Grazie Mille!