lixtra 5 years ago

This is surprising since food is one of the oldest subjects of “IP” in Europe:

> [Sybaris around 700 BC] pioneered the concept of intellectual property to ensure that cooks could exclusively profit from their signature dishes for a whole year. [1]

[1] https://en.m.wikipedia.org/wiki/Sybaris

  • ElBarto 5 years ago

    Cooking recipes aren't protected as far as I remember so it would have been surprising to protect the end result.

    • beatgammit 5 years ago

      That seems to be true for the most part, but if your recipe contains a lengthy narrative or something, the work as a whole could be covered by copyright[1].

      I've seen this in a lot of blogs and recipe books, but I don't know how far it extends, and I'm sure someone could extract just the base recipe from the narrative and the derivative work wouldn't violate copyright.

      - [1] https://paleoflourish.com/recipe-copyright/#protected

      • ElBarto 5 years ago

        Yes, but in that case the copyright extends to the literary work, not the recipe (i.e. the technical process) itself.

        Once you have published a cooking recipe you cannot prevent anyone from recreating the dish by following that recipe, even restaurants.

        • wiz21c 5 years ago

          Yup. In Europe you don't copyright "ideas" but expressions of them. If a whistle a song and you make a song out of it and sell millions of copies, then I can't claim anything. Now, if I have a sheet of music with that tune written on it, that predates your own version, then I win.

          That's made to ensure that ideas are free to flow. That's very good for auhtors (and society in general, as far as I'm concerned)

    • chottocharaii 5 years ago

      They are under Australian copyright law

      • shakna 5 years ago

        Kinda, sorta, but not in the way most people think.

        > Copyright does not protect information about the ingredients or cooking methods.

        > It is not an infringement of copyright to watch someone prepare a dish and write down the ingredients and method in your own words.

        What's copyrighted, is the word-for-word original reference. If you reword it, then that's free to disseminate.

        It isn't what people think of as a recipe - the ingredients and methods involved. It's just that particular copy of the ingredients and methods involved.

        [0] https://www.copyright.org.au/ACC_Prod/ACC/Information_Sheets...

        • AstralStorm 5 years ago

          Not exactly just minor rewording because you could still be in breach. You need to make major modifications.

          Patenting an innovative recipe is perfectly allowed though, including design patents of the innovative look of the item.

          This kind of cheese is not considered innovative enough though.

          If it's distinguishable enough, you can also trademark the thing.

          • shakna 5 years ago

            > Not exactly just minor rewording because you could still be in breach. You need to make major modifications.

            Again, only kinda. Techniques, styles, methods, ingredients, timings, quantities are all not covered by your copyright.

            A bare-bones recipe would likely not be covered by copyright, as it has nothing in it that is copyrightable. Only when you expound on reasoning of methods, or cautions do you start to get things that can be copyrighted.

            ---

            > Patenting an innovative recipe is perfectly allowed though, including design patents of the innovative look of the item.

            I'm not sure what has given you that idea. Generally speaking, in Australia, a process that creates an edible item, is not patentable. These are set out as non-patentable:

            > Capable of being used as a food or medicine and is a simple mixture of known ingredients (section 50(1)(b)(i))

            > Is produced by mere admixture (section 50(1)(b)(ii))

            Unless the process itself is inventive, and involves techniques out-of-reach of the average person, it probably is not patentable.

            However, you can trademark items that are not fit for the patent office, that has a lesser set of requirements.

contravariant 5 years ago

It's somewhat unfortunate that the ruling merely reasons that it wouldn't be practically possible, rather than reasoning that such a copyright would be a burden on society without any real gain.

  • tantalor 5 years ago

    Isn't that a stronger argument? The reason you aren't allowed to hunt unicorns is that they don't exist, not that they are sentient creatures.

    • contravariant 5 years ago

      Not being able to enforce a law is a pretty weak argument. Hunting unicorns isn't the best comparison as that one would be fairly easy to enforce.

      If you're more concerned with the unenforceability than the consequences of enforcing a law then something has gone wrong. Going back to your example, a law against hunting sentient creatures would make sense regardless of the fact that establishing sentience is a hard philosophical problem.

      • euyyn 5 years ago

        Not being able to enforce a specific aspect of copyright law led in the 80's to pretty much all countries having to reform their laws.

        When home VCRs became commonplace, creating an automatic copy of a broadcast was still illegal. Some German high court ruled that people's right to privacy in their own homes trumped law enforcement's interest in enforcing copyright, so the law was unenforceable in those cases. Hence was born the exemption for "copies for private use", and the related "tax" applied to sales of VCRs (and later on, blank CDs and DVDs) that was used to pay off author associations.

Siemer 5 years ago

It's also worth noting that Heksenkaas is a ridiculously overpriced product, which probably explains why they are trying so hard to keep the competition at bay.

  • Freak_NL 5 years ago

    I've bought it on sale, but it's just not that appealing. Definitely overpriced.

nmstoker 5 years ago

Funny the article made no mention of smell, which one might suspect would be treated in a similar way.

  • CapitalistCartr 5 years ago

    In the United States, smell copyright is well-established case law. Smells can be copyrighted if they're not a functional part of the product. Perfume no, smell added to shovels to distinguish your brand, sure.

    Edit: Trademark, not copyright, damn it!

    • reality_czech 5 years ago

      If Oracle gets its way, code smells will be copyrightable as well.

      • JDWolf 5 years ago

        smells like burnt money

        • r00fus 5 years ago

          v11i smells like software license audits.

    • ummonk 5 years ago

      That's surprising. Smells to distinguish your brand seems more like a trademark than a copyright...

    • mey 5 years ago

      Is that copyright or trademark?

      • CapitalistCartr 5 years ago

        Yes, trademark. I don't know what possessed me.

        • Angostura 5 years ago

          Playdoh recently managed to trademark its smell.

          • pbhjpbhj 5 years ago

            That's interesting, I thought the smell was a result of the ingredients - which would make it non-distinctive and unsuitable for a trademark (as others would be excluded from making the product so the trademark would operate as a perpetual patent).

            Maybe the smell is a trademark only for other goods (I don't know what Class Playdoh falls in, toys?), eg Playdoh scented merch?

            On searching I found an informed, brief treatment here https://loweringthebar.net/2018/05/play-doh-smell-trademarke....

      • type0 5 years ago

        it's IP - i.e impossible plonkers

    • techdragon 5 years ago

      Is it actually copyright or a protection similar to trade dress like the use of a specific colour delivery vans and matching uniforms.

  • maxxxxx 5 years ago

    Makes me wonder, is there any formal representation for smells like we have with colors?

    • oneplane 5 years ago

      I think one of the problems is that color and what you see is somewhat tightly related where taste and how taste works is highly varied.

      While you can get some sort of single-molecule chemical representation of some specific smell or taste, that would be static (as in, the formula or construction wouldn't change) but most people would smell different things.

      I suppose for those 'inventions' the recipe or method would be trademarked/copyrighted/patented but not the result.

      • frozenport 5 years ago

        Now, you might be shocked to learn that color can be part of us design patents.

    • ergothus 5 years ago

      There is a whole world of professional "noses" used by perfume companies. They have a system for describing "notes" but I know far too little (and honestly, don't want to know more) to say more than that.

    • Angostura 5 years ago

      I’m not a trademark lawyer, but I used to work with them in the UK. From what I recall, trademarks need to described in language accessible to ‘everyman’ to be protectable. So when I was there, about 5 years ago, I don’t recall that there had been a successful bid to trademark a smell because a gas chromatograph didn’t fit the bill.

    • ajuc 5 years ago

      You could just specify the chemicals and their proportions in air.

      • AstralStorm 5 years ago

        That's good enough for a design patent but not for a trademark.

cpach 5 years ago

It strikes me as very odd that anyone would even try argue in court that food could be compared to photography, literature, music or film.

  • adrianN 5 years ago

    Creating a good dish doesn't seem any less artistic that creating a good song.

    • cpach 5 years ago

      I agree that food can be works of art and can require great skill. But to apply copyright laws to food still seems inadequate to me.

  • beefhash 5 years ago

    Copyright has become the catch-all kind of intellectual property if nothing more specific is available. It's grotesque what it's become, but that's just how it is.

    • cpach 5 years ago

      I agree. Some people seem fond of trying to use copyright as a tool to prevent competition, but of course that’s not at all what it was intended for.

      • mdpopescu 5 years ago

        Er... preventing competition and aiding censorship are exactly what it was created for [1] [2].

        [1] https://en.wikipedia.org/wiki/Licensing_of_the_Press_Act_166...

        [2] https://en.wikipedia.org/wiki/Statute_of_Anne

        • pbhjpbhj 5 years ago

          Hmm, the Licensing of the Press Act to me is not copyright, it doesn't prevent copying, it prevents the use of printing presses IIRC. It also addresses sedition.

          The Statute of Anne includes the deal of provision of copies on deposit to named libraries, and of entry to the public domain; education and availability of publications are specific aims.

          It provides a reward period of up to 14 years (the cost of printing being considerable), and then entry to the public domain making for easy and open competition.

          It would be like saying today that a monopoly period of 14 months on a book was inhibiting competition - such a period allows recovery of costs, and so aids the dissemination of literary and artistic works by make it cost-effective. Yes, it inhibits competition, but key to the other aims is that this inhibition is limited in order to provide a genuine, timely benefit to the public.

        • cyborgx7 5 years ago

          All discussions on the legitimacy of intellectual property are basically mute until the protection periods go back to something reasonable of at most 20 years.

  • matteuan 5 years ago

    Centuries of culinary arts disagree with your statement. Craftsmanship and creativity are required to create new dishes in the same degree to other other arts. Imo we should use common sense to distinguish between basic preparations and elaborate foods.

    • amelius 5 years ago

      Problem is that "common sense" is not easily encoded in law.

      • matteuan 5 years ago

        That's why judges should be interpret the law.

oh-kumudo 5 years ago

Well, different people have different taste buds, how are you going to make sure there is a universally agreed representation, of taste?

  • mygo 5 years ago

    well different people have different retinas, how are you going to make sure there is a universally agreed representation, of a colored trademark =p

    https://m.youtube.com/watch?v=evQsOFQju08

    • realusername 5 years ago

      I agree with that personally, having a trademark for a particular colour is clearly a dubious concept.

      • SmellyGeekBoy 5 years ago

        I'm not so sure, when it's an integral part of the brand (Cadbury purple for example) I think it's justified.

        • realusername 5 years ago

          Since you have a limited number of colours on a computer, isn't that just a trademark on a number? And to go a bit further, what's the difference between the Cadbury purple and a purple so close that you can't tell the difference visually?

          • shakna 5 years ago

            Most trademarks on colours refer directly to a Pantone colour, so far as I'm aware.

            A Pantone colour will list the required method to create an item with that colour. That is, the mixes required to create it for printing on paper, or for dying clothes, etc.

            It's more detailed than just a number.

    • qaminsod 5 years ago

      People have different interpretations of the world, how are you going to make sure of anything?

      • mygo 5 years ago

        Yep you can make sense of it. Everyone can, and does. It happens every time cars stop at a red stop light.

        I don’t know how red looks to you, but every time you see red, you know it’s red. Even if red looks to you like green looks to me, when we both approach a red stop light we will both stop. We can be sure of that. Even though we may perceive the same red stop light differently, we can still interpret it to mean “stop”.

        Same for taste. You know when you’re eating a Big Mac and when you’re not. Even if it tastes different to you than it does for me. And more importantly, a Big Mac tastes like a Bic Mac to you every time. The results are repeatable, so long as you’re the constant.

        So yep perception is inconsistent between people, but within an individual you do have consistency. The individual is the reference point.

        Anyways hope people don’t take this as some sort of endorsement for trademarking taste. It’s more of an observation about the nature of perception.

        • qaminsod 5 years ago

          > Yep you can make sense of it. Everyone can, and does. It happens every time cars stop at a red stop light.

          You're assuming we all agree on what stop lights, rules of the road, cars, etc. are. If you see a red stop light from your perspective, I may see what from my perspective is a yellow ball - if you were to replace some part of your 'world-interpreter' with part of mine you might see a green frog. Also, just because we appear to act in certain patterns doesn't mean we can make sense of them. Can an electron make sense of itself?

          > Even though we may perceive the same red stop light differently, we can still interpret it to mean “stop”.

          Not really since you're just witnessing what I'm doing from your perspective - stopping. But maybe from my perspective I'm eating an apple sometimes and sometimes I'm drinking a coffee, but you interpret both of those as me stopping at a stop light. Maybe it's that specific time which makes you think I'm stopping at a stop light?

          • p1mrx 5 years ago

            Have you, like, been to reality? If it were inconsistent to that extent, I think someone would have noticed by now.

            The fact that we can build computers, and run code on them for decades without anything particularly strange occurring, provides evidence that our corner of the universe is reasonably stable.

            • qaminsod 5 years ago

              > If it were inconsistent to that extent

              To what extent? Do we have a way of measuring our understanding of the world?

          • mygo 5 years ago

            > You're assuming we all agree on what stop lights, rules of the road, cars, etc. are.

            We do. It’s called traffic school.

            Even if we all perceive things differently, we can still manage to sit in the same classroom and learn to interpret them similarly.

            • qaminsod 5 years ago

              What you perceive as agreement and/or similarities in perception, is just your perception. Furthermore it says nothing about how much we can agree on and understand.

              Sure, you could list a finite number of things humans perceive in a similar way, based on your own perception, but what about the possibly infinite number of things that humans don't perceive the same way or agree on?

              • mygo 5 years ago

                > Sure, you could list a finite number of things humans perceive in a similar way

                My entire thesis is that people may perceive things differently. Go re-read everything I wrote and tell me where I said people perceive similarly.

                There exists a difference between perception and interpretation. Perceptions are peculiar to the individual. Interpretations can be agreed upon between individuals. There may be things in this world that we can’t even perceive, but our interpretations are based upon observations that are consistently repeatable.

                • qaminsod 5 years ago

                  Replace 'perception' with 'interpretation' and my comment still applies. Interpretation can be thought of as part of perception or vice versa depending how you look at it. If you define interpretation as some stage of perception/observation that humans agree on then the statement 'interpretations are agreed upon by individuals' is a truism that doesn't really mean anything.

                  Nothing is truly repeatable because we don't have the ability to perform truly controlled experiments - we can't control time for example.

                  • mygo 5 years ago

                    > Replace 'perception' with 'interpretation' and my comment still applies.

                    You can’t just go around changing words all willy nilly. Language is a group effort and different words have different meanings.

                    > Interpretation can be thought of as part of perception or vice versa depending how you look at it.

                    Nope. Interpretations are based on perceptions. We’re talking about perception in the physical sense. Like seeing, smelling, etc. I can’t teach you how to perceive any more than I can make a blind man see. But when you perceive what I perceive to be a red light, we can both interpret it to mean “stop”. In this country, if you want a drivers’ license you better adopt that interpretation.

                    > Nothing is truly repeatable because we don't have the ability to perform truly controlled experiments

                    The scientific method has been used very reliably and predictably to solve very big problems. It’s all based upon repeatable observations. And you’re right, we’re never 100% certain about everything, that’s why the body of work continues to improve over time.

                    > If you define interpretation as some stage of perception/observation that humans agree on

                    I said that interpretations can be agreed upon by individuals. You can also have your own interpretations that nobody else agrees with. I’m pretty sure Tarzan has his own interpretations of his perceptions. But in society we have decided to arrive at similar interpretations to many things so that we can function. You know? to prevent people with drivers licenses from obliviously running red lights and crashing into you and breaking every bone in your body, etc.

                    • qaminsod 5 years ago

                      > You can’t just go around changing words all willy nilly. Language is a group effort and different words have different meanings.

                      If you're going to argue semantics, then at least start with some definitions for the words you're arguing about. Your definition of perception as just the sensory input and interpretation as a conclusion based on this perception is not the only way or even the common way to use the words in this context.

                      For example:

                      https://courses.lumenlearning.com/boundless-psychology/chapt...

                      > Perception refers to the set of processes we use to make sense of the different stimuli we’re presented with. Our perceptions are based on how we interpret different sensations.

                      and

                      > Perception: The organization, identification, and interpretation of sensory information

                      > The scientific method has been used very reliably and predictably to solve very big problems.

                      When you say 'very reliably and predictably' what does that actually mean? What does 'very' mean? Do we have a way of objectively measuring these things?

                      > But in society we have decided to arrive at similar interpretations to many things so that we can function.

                      'Decided to arrive at' and 'arrived at' are not the same thing and also depend on your 'interpretation' of society. An electron doesn't decide to behave similarly to other electrons even if it does so, for example.

      • akira2501 5 years ago

        You don't need to.. you have a reference standard and a mechanical means of comparison. Now we're not quibbling over the multitude of interpretations but over a single repeatable test and a single output number.

        • baddox 5 years ago

          I doubt that’s how hardly any digital IP protection works. Surely arbitrary encodes or slight pitch/tempo/etc. transformations of a digital music file are not protected if they are deemed to be equivalent to listeners. Surely any mechanical (algorithmic) detection mechanism could be circumvented if you know the mechanism, and yet I’m pretty sure a judge will still just look at it with “common sense.”

anticensor 5 years ago

That is not a problem. They would invent a chemical footprint IP right to cover.

  • simonh 5 years ago

    Even assuming it can be specified precisely enough, they would have to ensure their own product always fell within the footprint, and if the rival product deviated even slightly from it - but not enough to taste significantly different - they would be fine.

    But of course to work to do all this would be fantastically expensive in practice, which is a whole other major problem,

    • anticensor 5 years ago

      I think you can describe a group or mixture of chemicals in a chemical footprint in its particular chemical properties, for example, "an alkane chain of 80-85 carbons with an alcohol bound on carbon no. 21 and an ethyl-keto bond on second to the last carbon". Does not have to single out a chemical.

      • simonh 5 years ago

        How many such chemicals and variations on them are found in, say, as single one of the herbs in the cheese in question? But then it's not just about the raw chemicals in say the herb plant cells, it's also about their structure and relationship with each other.

        If you just took a list of all the chemical compounds in say the cells of a herb plant leaf and synthesized them in a chemical slurry I doubt it would taste much like the herb. Which chemicals in the leaf fragments actually evaporate causing the smell? Which ones diffuse into the cheese, and how does the structure mediate that?

type0 5 years ago

CopyRighteousness strikes again, how long will it take before someone could copyright the air?

  • jpatokal 5 years ago

    Quite the opposite: the EU found that you cannot copyright food tastes.

    • type0 5 years ago

      Yes, sure. Just shows that their lobbying was ineffective, better luck next time.

  • aaron695 5 years ago

    So I could spend millions designing and displaying an amazing art piece, using something like fireworks and I should have zero protections.

    Your argument holds to books and video equally so I think we should talk about that issue on the common rather than rarer forms of art like using air to create a thing of value.

    Speaking of air but not copyright, obviously the current default composition of air is not optimal for humans. One does wonder how many billions of lives get cut short because of it, what is the optimal level of oxygen the body needs?

    But I see little incentive to find what it would be since it could not be protected financially. So we get relegated to simplistic meta studies on things like additives aka PM 2.5.

    There are reasons we have protections for intellectual property. They are not jokes.

emilfihlman 5 years ago

This is a strange common sense ruling from the EU, which is most often the lapdog of copyright trolls.

  • jopsen 5 years ago

    Trolling much? :)

    The EU does stupid things from time to time, but generally I think the EU gets things reasonably right..

    Getting rid of roaming charges was huge! Not adding software parents was huge! GDRP has pros/cons, mostly it's a problem that people think they comply by making consent popups.

    But yes, aspect of current copyright reform and cookie law is stupid. But only aspects -- who knows maybe we can fix them :)

  • toyg 5 years ago

    On food, EU authorities don’t mess about. There is a complicated set of regulations to mark “characteristic” food, which is enforced very rigorously across the continent. The problem seems to be that such regulations mostly cover traditional foodstuffs, whereas modern industrial concoctions (like this crappy cheese) are ignored. Claiming copyright was a somewhat-clever attempt to extend protections.

    • mrob 5 years ago

      The EU protected designation of origin etc. rights are effectively trademarks, so unlike copyrights or patents there's no harm to consumers. You're free to introduce competing products with the same taste under a different name, e.g. Champagne has to be produced in Champagne in France with specific ingredients and technique, but Spain produces Cava, which is almost identical.

      • foobar1962 5 years ago

        In Australia we make "Sparkling Wine."

      • etiennemarcel 5 years ago

        You can buy "mousseux" (bubbly) from anywhere in France that will taste the same as most Champagnes.

  • thayne 5 years ago

    Let's not pick on the EU. The US government can be just as bad (disclaimer: I am a US citizen)