Throughout this Covid-19 season, New Zealanders have experimented and sharpened their creative skills while in lockdown, not least in their kitchens. But as Kiwi business owners and culinary artists struggle with the long-term effects of Level 4, could New Zealand’s copyright legislation be doing more to help? Media and Image Researcher Katie Fordyce chews over this question that offers timely food for thought.

Like many around the world, Kiwis have taken up cookery and home baking in droves during recent weeks, in a bid to bust the boredom of life under lockdown. Flour shortages have raised the steaks, as social media competitions and whānau challenges have increased in popularity around the world and people get creative with the time on their hands.

It shouldn’t surprise you that museums and other GLAM (Galleries, Libraries, Archives, Museums) institutions have oodles to offer from within their collections on cookery and cuisine. As Auckland Museum showcased with their recent posts about retro hot cross buns and Edmonds Anzac biscuits, Te Papa similarly has its own stockpile of recipe resources to turn to in times of knead, including The Peace Recipe Book, published during the Second World War. All 88 pages, and all its savvy recipes for soups, cakes, scones, pickles, salads, jams, and other economical tricks and treats, are available to view on Collections Online.

Sharing is caring

How convenient it is to share knowledge and cultural heritage so readily while in the midst of a pandemic should not be underestimated. Technology allows us to connect with those beyond our bubbles, sharing content and ideas, and prompting creative responses and insights, even while physically apart. Giving freely is a hallmark of a generous spirit, a timely reflection as we remember those who sacrificed so much in wartimes past, and as we continue to commemorate those who fight our battles on the frontlines today.

Can you copyright a list of ingredients?

In this rapidly-changing, social-distancing ‘new’ reality, what role does copyright play? Take recipes as an example. That recipes themselves are typically not subject to copyright is no trade secret. Globally, there is a tentative consensus that recipes, as lists of generic ingredients, are not original enough (literarily, artistically, or otherwise) to warrant the creation of copyright in the work – or, more accurately, to warrant legal action that a claimant could feasibly win.

This assumption is not actually supported by New Zealand’s copyright law, however – an example of how copyright legislation is often as clear as pea soup. As barrister John McBride points out in his article, Copyright for Foodies (PDF 486kb), ‘“literary work” is defined in the New Zealand Copyright Act as including “tables and compilations”, so recipes could arguably be covered by this definition. But what about the results of recipes, the #foodart itself?

Now more than ever before, people are sharing the fruits of their domestic labours through images, footage, and other creative outputs, via social media. This raises fresh questions, worthy of consideration in this new reality, around the age-old tension between creators’ rights and the philosophy of the open-access movement – particularly in the context of the heady potion of creativity and copyrighted works that is The Internet.

But spill the beans already! What is copyright?

Copyright is a legal right given to creators of original creative works, including but not limited to literary, artistic, and musical works. In New Zealand legislation, this right is given to creators automatically, the moment a creative work is realised – copyright exists whether a © symbol is nearby or not. Crucially, copyright only applies to ‘fixed’ original works, or the manifestation of a creative idea, as opposed to protecting the idea itself. Copyright is a type of property right; as such, it can be transferred, gifted, sold, and inherited.

Copyright also has a set duration, or an expiry date, defined within legislation, and based on factors like the death date of the creator of the work, whether the Crown can claim copyright over the work, or whether the work has been industrially-applied (i.e. mass-produced). More meaty descriptions of copyright and the curly questions it generates can be found via the links at the end of this blog post.

The fundamental purpose of copyright is to ensure some degree of control over the reproduction of creative works remains with the creators and artists. Copyright can provide an (albeit small) source of income for artists through copyright licencing, or granting permission for select parties to reproduce works under certain terms and conditions on a case-by-case basis. Copyright lasts throughout a creator’s life, in most cases, and can support their legacy by providing for their Estate after their death.

Ultimately, copyright seeks security for creators and artists, and the relative protection it can offer is an incentive for creatives to keep on creating, even in times of adversity.

Fixing food

Is food art actually a ‘thing’ in copyright legislation though? The sticking point is that food is generally not considered a ‘fixed’ work given its intention and tendency to be eaten. But what about food that is fixed for longer periods of time? Considering the vast spectrum of materials, modes, and mediums that can be used to create ‘art’, could the creative arrangement and treatment of some foods not also fall into the category of an ‘artistic work’?

The definition of an ‘artistic work’ in New Zealand’s copyright legislation includes the broad statement “a work of artistic craftsmanship”. “Irrespective of artistic quality”, to quote the 1994 Copyright Act, Section 2(1), can the skilled craftsmanship of culinary artists creating more-fixed food be denied? The exact details of what recognition of ‘food as art’ might look like in New Zealand legislation would need to be carefully hashed out but the topic is timely given the current climate.

In times such as these, when people’s incomes have been lost or disrupted, the market is uncertain, and businesses face collapse, legislation like the 1994 Copyright Act is intended to provide some security and work in the best interests of those it claims to protect. How well such legislation lives up to this expectation, however, is another matter well worth chewing the fat over.

And they are. The Ministry of Business, Innovation, & Employment (MBIE) is currently reviewing the 1994 Copyright Act, to determine if it remains ‘fit for purpose’ in light of the rapid technological advancements in recent decades, with a focus on ‘reasonable access’ to copyrighted works and the ‘fair recognition’ of creators. Submissions from the public and various sectors to the MBIE Issues Paper Review closed in April 2019 and MBIE’s assessment of these is ongoing. New Zealand’s next course of copyright legislation must aim to strike the right balance between accessibility to works and copyright holders’ rights – but this is no mean feat.

Open wide?

So what happens to all those creative food lockdown snaps uploaded to social media? They might be shared, reposted, retweeted, and shared again, between family, within communities, across continents, and around the world.

It goes without saying that these are interesting times. The spirit of sharing witnessed in New Zealand and around the world during this pandemic is significant. While travel restrictions have forced many nations to look inward, their people are increasingly looking outward, to the wellbeing of their friends, families, neighbours, and strangers. There is a strong desire to share despite distance and to put aside one’s potential gains for the benefit of others. These are philosophies in common with the open-access movement and the OpenGLAM initiative.

Copyright vs open-access

Often copyright is seen as the natural enemy of the open-access philosophy, as an inhibitor of creativity and a frustrating legal hoop to jump through, but this does not have to be the case. Copyright, if as effective in practice as in its stated legislative purpose, can actually be an incentive to create, as it helps to give artists legs to stand on legally and, to an extent, financially – all the more important when crises like Covid-19 hit.

So how do we reconcile the growing push for open-access with the ongoing protection of creatives’ rights? Is it possible to achieve both – and within one piece of legislation? In the forthcoming Copyright Act review, that delicate balance between promoting and fostering access to copyright works and the protection of the incomes and livelihoods of creatives, artists, and business owners must be struck.

In these rapidly changing times, much is uncertain but the recognition of fixed food as a copyright-able art form might make the future a little more palatable to local culinary artists. Food for thought going forward.

Got a hunger to learn more? Feast your eyes on the following!

• Get a taste of the latest edition of New Zealand’s 1994 Copyright Act in all its glory, freely available at www.legislation.govt.nz.
• Sample some wisdom from the New Zealand Intellectual Property Office and Copyright Licensing New Zealand (CLNZ) websites.
• Get inspired by the work happening at Tohatoha Aotearoa Commons, formerly Creative Commons Aotearoa New Zealand.
• Are you a keen copyright bean? Check out Te Papa’s 2018 submission to the MBIE Issues Paper Review of the 1994 Copyright Act.

Disclaimer: This post contains general information and opinions. The author does not practice law and this blog post does not constitute, nor does it seek to constitute, legal advice.

Additional reading

• Copyright for Foodies by John McBride, 1994, revised 2007.
• Reviving a Centuries-Old Japanese Confectionery Art by Ligaya Mishan, 17 August 2018, The New York Times.
• Sweet or Sour: Extending Copyright Protection to Food Art by Caroline M. Reebs, DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 22 (2011).
• Eat Your Art Out: Intellectual Property Protection for Food, by Natasha Reed, 2016, Trademark & Copyright Law / Foley Hoag.