La protección jurídica de las obras culinarias por el derecho de autor y de la competencia desleal

Abstract

Signature dishes" are closer to artistic expression than the know-how acquired in culinary schools. Talking about "creative cuisine" means talking about "authors". And the general feeling is that these "culinary masterpieces" are the authors' creative expression, the result of a creative and intellectual process worthy of recognition and legal protection. And this is the view we take in this paper, in which we principally argue the thesis that culinary creations should be protected under Spanish copyright, concluding that there is no inherent obstacle preventing Spanish Intellectual Property Law from covering culinary masterpieces. The first section of the paper focuses on copyright. We analyze whether culinary creativity could be protected under copyright laws and if the different forms of culinary expression meet the legal requirements of objectivity and originality. We then examine possible cases of imitation, singular and plural ownership of the works, and the rights and powers that would be granted an author of a culinary work. The second section demonstrates the limited protection that the unfair competition law now offers culinary works, except in some very specific cases, such as protection against unfair acts resulting from the improper use of a renowned "culinary name" and the protection of those who belong to Spain's intangible cultural heritage. It also lays out the unavoidable difficulties in protecting these works as "trade dress" and against acts of unfair imitation, as well as those difficulties stemming from the legal requirements and interpretations of a regulation that was not designed to protect culinary works and thus offers no legal certainty to authors. Which confirms, in short, that the protection they require and deserve is found in copyright.

Date of Award	3 Feb 2017
Original language	Spanish
Awarding Institution	Universitat Autònoma de Barcelona (UAB)
Supervisor	Susana Navas Navarro (Director)