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Internet Is Free, But Not Free!
By Maria Sol Porro, Trademark Lawyer
Echoes of the New Copyright Directive approved by the European Parliament last month extend to the other side of the pond. That is why, taking advantage of the popularity achieved by the new community copyright reforms for Internet platforms, the Argentine Society of Management of Performing Actors of Argentina (Sagai) announced the launch of a new campaign to demand from them, specifically YouTube, the enforcement of the National Intellectual Property Law.
In this regard, it is important to remark that the aforementioned entity filed a lawsuit with YouTube (whose parent company is Google) 4 years ago for the lack of payment to actors when that platform uploads national series and films (only claim in the world made by a entity of this type). The form of collection to which Sagai aspires is a percentage, regulated by the Argentine Government through the Intellectual Property Law. That is why, according to their representatives, they are very close to the initiative approved in the European Parliament.
As mentioned in another post of this blog1, the new European directive imposes the use of filters to stop the load of content that may have copyright (as opposed to how it works now, where the analysis is done after it was online and before someone’s complaint). These new measures have generated voices in favor (to prevent large platforms from profiting from the effort of others), as against (which they see as a form of censorship).
In this sense, for Sagai, YouTube has some control of the contents that are uploaded to its platform by users because, according to the lawyer Sebastian Bloj, director of Sgai, “it is unfair that the company says that it has no responsability for those contents when we believe that is not true. If we want to see ¨Lost¨ or any ¨Disney movie¨ or any ¨American film¨ we will not find it on the Net¨. On the other hand, Google issued a statement in which it states that “YouTube respects copyright and makes great efforts to combat piracy worldwide and Argentina is no exception.”.
In conclusion, this local proposal does not seek the sanction of a new copyright law, as happened in Europe, if not the State to enforce the one currently in force in Argentina. As Jorge Marrale, head of the aforementioned entity, points out “there is an idea that the Internet is for everyone, and it is very good, it is free, but not free.”
Source: www.iprofesional.com
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1 ¨European Union Approves Copyright Directive¨, by Maria Sol Porro, 23 APRIL, 2019, (https://www.moellerip.com/european-union-approves-copyright-directive/)
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Could food be protected by copyright?
Since any student begins to study the law of Copyright in Argentina, we learn that this right protects the expression by a human being of ideas, procedures, methods of operation and mathematical concepts but not those ideas, procedures, methods and concepts in themselves. Typical examples of this exclusion were always weight loss methods, scientific theories and “culinary recipes”.
However, since a few years ago many chefs began to demand some recognition for the recipes and dishes created, according to the first ones, opening the subject to the following debate: does gourmet creation deserve to be protected by copyright? The answer to this basic question will determine if someone who plays the same dish as a chef must pay the author a certain right of remuneration or royalty.
As in any debate, we will always find the two positions: those in favor of recognizing the author’s copyright, basing their thinking on the need to protect the culinary creative act, comparing it with other artistic creations (musical, literary) that do they find protected. While on the other hand, we find the position contaria who argue that only can be considered “author’s dish” to that cooked by its author, and that any reallocation of this dish is by definition different from the first and, therefore, could not be protected.
However, despite the fact that the debate remains in force, a judicial or legislative solution has not yet been found in our country and, if there is a coincidence between both sides, it is difficult to find any of these areas. If we look beyond the borders, we will find that the issue also causes conflict in other countries. For example, in Spain the subject was discussed in the Cultural Federation of Associations of Spanish Cooks and Resposters, where the recognition of the gastronomic work is demanded in order to combat plagiarism among colleagues.
On the other hand, in the Netherlands, we find that the Court settled case law in a case of plagiarism of a box of chocolates (not only had the original recipe been copied, but also the shape and decoration of these) by declaring that the right Author can cover not only the aspect of the recipe (when a recipe is published in a book), but also its content and the successive executions that are made based on it. Finally, it is worth mentioning the denounce of an Australian chef against a Spanish chef, both with three stars Michelin, where the first accused the plagiarist, to which the Spanish chef defended himself referring to a “simple inspiration”.
Returning to Argentina, as mentioned before, our Copyright Law does not protect the recipes themselves, but rather how they are expressed, for example in a book. Thus, the recipe book of Doña Petrona or Narda Lepes (Argentinian chef) are protected as literary works, being forbidden the use by a third party of these works without their consent. However, it should be noted that the recipe itself is not protected. And therefore, anybody could reproduce it, in other words, in another book.
In this way, the debate is ongoing and the line of plagiarism and simple inspiration is very thin and very easy to cross while there is no clear regulation on this subject. Perhaps, with time, we will find ourselves in a future with a new protected work, since as we also learn from the beginning the art. 1 of the Copyright Law is not closed, if not merely exemplary, allowing the incorporation of new works.
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