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What do haute couture and cuisine have in common? Both are French terms, of course, and both refer to highly esteemed and developed areas of human creativity: fashion design and gourmet cooking respectively. Another thing these two areas have in common is that traditionally, neither has been eligible for intellectual property protection.
If I am an inventor and originate a new device, I can obtain a patent and prevent anyone else from selling or even producing my device for 20 years. If I am a writer or artist and create a novel or painting, I can obtain a copyright and prevent others from copying my work for a generation after my death. But if I am a fashion designer, anyone is allowed to create a knock-off of my design, and many do.
Superb copies of new designs by leading fashion designers routinely appear in stores within a few weeks of their first display on the fashion-show runway. If I am an innovative chef, anyone who can figure out my recipe is allowed to copy it. The only protection afforded chefs is that recipes are considered trade secrets, so if I divulge my recipe to a junior chef, I can make him keep it secret.
Both of these limitations may soon change. A bill that was introduced in the US Congress in March seeks "to provide protection for fashion design," and similar legislation is being considered in other countries.
And a German chef named Heinz Beck has proposed giving chefs a limited period of time in which their recipes would be protected from copying by rivals. Blogger Georg Greve has already coined a term for this new protection: "cookyright." ("Foppyright" is my own invention, based on the word "fop," a person vain about his clothing.)
These proposals are doubly revolutionary. For one thing, any innovation in the staid world of intellectual property is unusual. The basic scope of protection - based on patents, copyrights and trademarks - has changed very little since 1787, when the US Constitution granted Congress power "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
Secondly, those innovations have mostly been corollaries of new areas of human endeavor. For example, in recent decades the burgeoning field of computer programming - unknown 200 years ago - was found to be unique enough to warrant its own kind of intellectual property rights, somewhat distinct from the copyright law that had protected it until recently. One example is the US Digital Millennium Copyright Act.
But fashion design and cooking have been around for millennia, and seem to have changed little since the dawn of history. What's new in these fields that would make new protections necessary? (If they had been around in biblical times, perhaps Esau could have sued his brother Jacob for wearing his garment, and for imitating his special recipe for fresh-game stew.)
Of course, one possibility is that these areas should have been eligible for protection all along, and the law is being reluctantly convinced to acknowledge this fact. In my opinion, a gender bias cannot be ruled out, and it could be that the founding fathers of IP (intellectual property) rights never considered that areas of creativity dominated by women could be worthy of special legal protection.
However, I am more inclined to think that there is not, and never was, a compelling public interest in cookyright or foppyright. That doesn't mean that I don't feel sorry for designers and chefs whose innovations are copied. It just means that more than sympathy is needed to justify far-reaching new property rights. Many have pointed out that the culinary and fashion industries are not moribund, and the most talented designers continue to make a very respectable living.
Let's take this one step farther. What if, contrary to experience, these professions were seriously harmed by knock-offs? I agree that it would be a shame if there were fewer new recipes invented by professional chefs and fewer new designs by professional designers, but this is not really commensurate to the damage that we would suffer if we benefited from fewer new inventions or new books.
A number of articles relate that when a parallel design protection bill was submitted to Congress in 1914, one legislator reacted as follows: "The trouble with this bill is that it is for the benefit of two parties; that is, the enormously rich who want to display their splendid apparel that they can wear in this country that the ordinary riffraff ought not be allowed to wear, and those rich concerns who have these extra and selected designers to design these special patterns for those elite."
Even if this statement is somewhat exaggerated, I think it correctly conveys the idea that the average person has more to lose than to gain from further extending the scope of intellectual property rights into areas that have been harmlessly unprotected since time immemorial.
The writer is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology. He is also a rabbi.
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