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.Read More
As a result of an investigation by the National Commission for the Defense of Competition (CNDC), the Ministry of Commerce fined the Argentine Society of Authors and Composers of Music (Sadaic) for US $ 1,567,945. The survey determined that Sadaic charged “excessive prices” on copyright fees paid by hotels and other establishments for music reproduction in hotels guest rooms.
To determine this fine, the CNDC made an international comparison of the tariffs paid for the reproduction of musical works and the result of the investigation determined that in Argentina hotels and other establishments pay between six and nine times more than the average of the reference countries.
These fees imply a fee payment for copyright for playing music in hotels. With the calculation methodology used by Sadaic, each hotel must pay the fee for having televisions in the rooms, regardless of whether the room was occupied or not and if musical works were even used.
“This measure implies an improvement in the competitiveness of the tourism sector and enables the reduction of tariffs for rights of authors and composers charged for the secondary reproduction of TV and music content in hotels,” according to the president of the CNDC.
Finally, the CNDC recommended to the Executive Branch that the tariff fixing system be restructured based on a criteria of “reasonableness, non-discrimination, transparency, fairness and limited scope.” The CNDC suggested that the collection management system must be modernized in order to expand users and reduce tariffs, “without substantially affecting income.”Read More
Since the law 11,723 was enacted in 1933 different human expressions were included in its art, meaning humans expressions were included in this law to be protected. So what happened with makeup?
The law defines that some makeup is considered protectable work, while other makeup is an expression, excluded for various reasons: a transitory nature, lack of originality, lack of independence from another work, etc.
Makeup is a very good example of one of these conflicting expressions. While for many the line of the eye may be the great nightmare of makeup, some makeup artists create works of art worthy of a museum.
Recently, the Argentine Courts regarding a conflict between a makeup artist, the plaintiff and the director of a magazine, the defendant discussed this issue. The plaintiff filed the lawsuit against the defendant because she was hired to do makeup for models in a production for the magazine N. Afterwards, she was invited to a parade organized by the defendant and saw catalogs, which included photos wherein it was indicated that the makeup was done made by a third person, not the plaintiff.
The claim was initially rejected with the argument that since the make-up captured in the photographs was not a work but only an idea, it did not deserve protection because ideas do not enjoy legal protection. However, the Civil Appeals Chamber revoked the judgment of first instance in favor of the plaintiff stating that the defendant had caused damage to the plaintiff when using the photos with a different purpose to the original one for which they had been produced (patrimonial right) and the lack of consignation of the plaintiff’s name as executor of the realized makeup (moral right).
Although in this case the Civil Appeals Chamber did not resolve the case, directly applying the regulations related to copyright, if it indirectly recognized the moral and patrimonial right of the makeup artist to rule in favor of it.
For this reason, I wonder if makeup is an artistic expression that deserves to be protected. Nevertheless, if the purpose is merely practical, does it not deserve it? Where is the border? In my opinion, just as in fashion, basic makeup is something too utilitarian or practical to have copyrights. However, some makeup may be protected if they are considered works of art separable, at least conceptually, from the face or the body itself.
SOURCE: Judicial resolution “Expte. N° 93.864/2011. “M., M. d. C. c/ H., A. R. s/ daños y perjuicios”. Juzgado N° 28.-”
By Moeller IP Advisors
Dear Clients and Associates,
The Venezuelan Association of Industrial Property Agents (COVAPI) has issued a statement related to the suspension of services of the Autonomous Services of Intellectual Property (SAPI), who since August 28, 2018 has decided to temporarily and unilaterally suspend the provision of their usual services.
Below the text of the statement:
TO OUR ASSOCIATES, COLLEAGUES AND OTHER USERS OF THE INTELLECTUAL PROPERTY AUTONOMOUS SERVICE (SAPI)
The Venezuelan Industrial Property Agents’ Association (COVAPI) hereby informs its members, colleagues and general public that the Intellectual Property Autonomous Service (SAPI), as of August 28, 2018, has suspended to render services, motivated by certain “internal affairs”, pursuant to various official notifications issued by the entity.
This suspension of services prevents the submittal of any trademark, patent and/or copyright application, notwithstanding the fact that there are three (3) IP Bulletins currently in force which generate several recourses that must be actioned by the owners of these intangibles and who are unable to do so, thereby negating their right of defense and request for protection of their intellectual rights.
COVAPI has already sent a communication to the competent authorities expressing its concern upon the climate of uncertainty and lack of judicial safeguard generated by this situation and has requested SAPI to adopt the necessary measures to reactivate its services in order to guarantee its users due protection and enforcement of their rights and interests.
We remain, Very truly yours,
The Board of Directors
The potential of Artificial intelligence is enormous. The interconnection of A.I. and art is a relatively less explored field, but in this regard the consequences for intellectual protection law are unpredictable and equally interesting.
In 2016, a network of Dutch museums presented a portrait created by a computer that analysed hundreds of Rembrandt paintings, to finally produce a new artwork in the style of the Dutch artist and that looks exactly as if it had been made by Rembrandt himself.
In the same year, a computer software wrote a brief novel that was admitted into a literary prize in Japan, although it didn’t make it to the final round.
Deep Mind, a Google company, has developed a program that creates original new music by listening to old recordings. The first computer-generated musical debuted in London as early as 2015.
While bots have been present in the creation of work of arts since the 1970s, the difference with modern A.I. lies in the fact that, in the past, the human programmer still had a relevant creative input and the machine merely executed, or reproduced his ideas adding an element of randomness. Today, evolved A.I. robots – due to the developments of machine learning -are capable of behaving in a sophisticated way which is almost as indistinguishable from human intelligence and are capable of unpredictable, autonomous decisions.
As copyright law protects original works of art, and the works produced by robots are certainly original, who owns the copyright to those artworks?
The consequences for copyright law
The question is relevant as there may be substantial commercial rights attached to the copyright of a work of art. Who is to benefit from the commercial rights? The developer of the software? What if the activity cannot be tracked down to a developer in particular, but to a whole company – like it usually happens in case of very sophisticated programs? Or is the machine itself to be considered as an author – but again, in that case, who holds the economical rights? And what if, on the contrary, the final work cannot be considered as attributable to anyone – and therefore can be reproduced, modified and commercialized freely?
Most jurisdictions, included South American jurisdictions, are unequipped to deal with artificial intelligence from this perspective. In Mexico, for instance, the concept of copyright is always linked to a person.
Art. 12 of the 1997 Federal Law on Copyright, states that “The author is the natural person who has created a literary or artistic work.”
In other words, the existence of an individual identified as the author is essential; and by the same reasoning, for instance, corporations in Mexico cannot be authors, although they may be the copyright holders.
The same is true for Brazil, where section 11 of the law 9.610/ 1998, establishes that “The author of a literary, artistic or scientific work is the natural person who created it” – negating the status of creator both to companies and to the software itself.
On a global perspective, EU courts have been behaving similarly, in the sense that they attribute the rights only to a human author – see for instance the Court of Justice of the European Union (CJEU) in the decision C-5/08 Infopaq International A/S v Danske Dagbaldes Forening, where it stated that originality must reflect the “author’s own intellectual creation”, implying that a human author is necessary for a copyrighted work to exist.
The United Kingdom adopts a more blurred stance on the matter, as UK copyright law, section 9(3) of the Copyright, Designs and Patents Act (CDPA), states:
“In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken” and this needs to be paired with section 178 of the CDPA defines a computer-generated work as one that “is generated by computer in circumstances such that there is no human author of the work”, admitting, in theory, that computer-generated works may exist. It just needs to be defined who is responsible for the “necessary arrangements”, whether the programmer or the machine itself, which is still under debate in the UK.
Quickly developing technologies have put a strain on most legal systems, and South America needs to keep up with its advancements.