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Monday, 15 July 2013

Do you care if the food at the restaurant is labelled "fait maison"?

What happens when creativity and innovation are poorly served by the standard IP framework -- and to what extent should IP professionals seek to engage in this murky IP netherworld? A prime example is the world of French chefs, who are an especially creative lot. Several years ago, Eric von Hippel of MIT was joined by Emmanuele Fauchart (then also at MIT) in publishing a study that addressed a basic question: how do French chefs protect their IP? The answer that they suggested posed a challenge to the conventional approach to IP rights, "Norms-Based Intellectual Property Systems: The Case of French Chefs" here (the SSRN version of their study). The chefs viewed their recipes as "a very valuable form of intellectual property." The problem was that there was no way to shoehorn these creative efforts in any meaningful way into any of the accepted IP categories. Nevertheless, the chefs were convinced that their recipes were entitled to some type of "IP protection"-lite. The result was the creation of a framework for conceptualizing how the chefs sought to protect their creative culinary efforts.

Von Hippel and Fauchart called the framework "a norms-based intellectual property system". As described by the authors in the abstract, "[n]orms-based IP systems, as we define them, operate entirely upon the basis of implicit social norms that are held in common by members of a given community. Within that community, they offer functionality similar to contemporary law-based IP systems with respect to both the nature of rights protected and the effectiveness of protection provided." Regarding "accomplished" French chefs, three basic norms regulated the "rights" of the chefs in their recipes—(i) a chef must not copy exactly an innovative recipe created by a colleague; (ii) if a fellow chef discloses recipe-related secret information, the recipient will not pass on the information without permission of the disclosing chef; and (iii) colleagues must give credit the developers of significant recipes. Failure to adhere to these norms will lead to informal means of enforcement such as withholding information to the miscreant chef.

Apparently, the force of these unwritten, informal norms does not extend to the question of whether the food is all home-made. As reported on on 3 July, under the byline of Gregory Viscusi (“France’s Restaurants Face Regulation Over “House-Made” Food”), here, an issue has arisen about the extent to which the food served up at French eateries is entirely home-made. In particular, the restaurant association Synhorcat advised that, based on a survey conducted in May 2013, 31% of French eateries replied that they do not prepare all of their food from scratch. These results have led to talk that legislation will be reintroduced that will restrict the use of the term “restaurant” only to those eating establishments whose food is 100% home made.

There is precedent in France for such a legislative enactment; under a law passed in 1998, no one claiming to be a bread shop can all itself a boulangerie unless the baker prepares his own dough. The reasoning seems to be that what is good for the French bakery industry is also good for the 43 billion Euro French restaurant industry. The proposed solution: a statutory designation will be established—fait maison (“house-made”), which may be used only by French eateries in which all its ingredients are house-made. However, there does not appear to be any consensus about the necessity that all restaurant cuisine must be house-made. Also, as suggested by the article, if restrictions are to be imposed on the use of "restaurant", will similar regulation be needed to govern what is a "brasserie", "bistro", or a "grill"? Nope.  As stated by French Minister for Crafts, Commerce and Tourism Sylvia Pinel, when it comes to restaurants, the Minister wants to keep things “positive” rather than “divisive.” It is for that reason that she apparently has proposed the compromise solution—no restriction on who can call itself a restaurant, but rather the creation of the new regulatory designation-- “fait maison”. If no industry-imposed norm is possible, then a regulatory option might be the next best option.

The threshold question in adopting such a regulation is whether there exists a critical mass of consumers for whom it matters whether the food in the restaurant is “house-made”. Assuming that the answer is “yes” the next question is what exactly constitutes “house-made”? Does it simply mean “prepackaged cuisine”, i.e. “frozen food” or is something more intended? One can imagine a situation in which the main course, say a veal ragout, is prepared by the chef straight from the butcher, but the beans and soup are frozen and re-heated, or the opposite, where the beans and the soup are prepared from original ingredients while the veal is of the pre-frozen and reheated variety. How do we determine what is appropriately "house-made" under such circumstances? The uncertainty surrounding how to determine what should be considered "house-made" suggests that the absence of a norm on this point is an indication that the chefs (or at least most of them) prefer leaving the matter as it is, i.e., with no identifiable norm and no governmental regulation.


Anonymous said...

The article very much reminds me of the novel 'The Remains of the Day' by Kazuo Ishiguro where the concept of dignity and social restraint dictate the behaviour of the butler. It is interesting to see 'societal norms' being so strong amongst French chefs, and for others chefs' opinions of one to regulate behaviour in this way. I've met UK companies that have relied on gentlemanly conduct (rather than patents) to protect their IP, which seemed to work until more aggressive non-UK firms entered the market. It is fascinating to see from the French chefs that informal IP protection systems can come about where there are no laws to do it.

OmGnomGnom said...

I like the idea of a Gnoms-based IP system for restaurants...

Anonymous said...

It does not surprise me that the French have such strong feelings about what some may label as "sweat of the brow" and others label "droit de suite."

However, creating a new (but exclusive) label and calling it 'positive' is only as 'positive' as being positively devisive.

Such word-play is not that tasty.

Shalini Bengani said...

A similar article was published in the 6th July edition of the Economist entitled 'French Restaurant-No place like home'.

Anonymous said...

Who needs "norms" when you can simply apply for a patent ;-)

"Bakery product comprising sauerkraut and gnocci and process for its preparation"

Anonymous said...

This is rather like the rule against comedians copying each others' jokes. Are there any other areas where these norms apply?

Anonymous said...

Pargraph 6.1 of suggests norms based protection is also found in the sports equipment field.

Gareth said...

Here's an article about protection of magicians' secret tricks:

There is a mention towards the end of informal community policing deterring magicians from copying one another's tricks.

Anonymous said...

Some might consider TV show formats to be another example?

Andy J said...

"Some might consider TV show formats to be another example?"
On the contrary, I would suggest that many TV show formats are extensively copied. Indeed there has been a good deal of litigation especially in the US between the networks and others over formats such as Sheehan V MTV (SDNY 1992), Survivor(CBS v Fox TV), the Contender, I'm a Celeb, and in other jurisdictions, Big Brother, Takeshi's Castle (Japan) and a real oldie: Greene v NZBC.
And it's not just the litigated cases: Nanny 911 / Supernanny; The Apprentice / The Rebel Billionaire.
So much copying of formats hardly suggests a norm to respect original ideas.

Anonymous said...

There is a similar problem in the fashion industry regarding cuts and patterns etc. Apparently it is now established case law in Germany that designers enjoy protection of their creations for "one season" by competition law. That means you are not infringing their IP by copying or selling similar designs, but you are acting unfair in the market which gives the original designer a right for injunctive relief.

Maybe similar problems may also be tackled by competition law.

Anonymous said...


Outside of the limited times scope, copying (in US jurisprudence) is considered a legally desired thing.

Anonymous said...

Andy J - well, if some might say that TV show formats are an example, then obviously that leaves the possibility that some might not!

I guess you're right in that it's not so much a norm, more that historically at least there seems to have been a belief that the law gives protection to TV show formats where in fact there isn't any, there is only protection for ancillary elements such as copyright in graphics/music. So, from the FRAPA website, where you can if you wish register your TV show format proposal:

While the format trade assumes that intellectual property (IP) rights exist in formats, this assumption is disputed in law. Consequently, protection for formats will remain an issue while format theft remains a risk — and FRAPA will continue to fight for the acknowledgement of format protection.

Roufousse T. Fairfly said...

Reminds me of that 1976 classic "L'aile ou la cuisse".

At 33", gastronomic guide editor Duchemin (Louis de Funès) has a taste of factory-made "home" cuisine.

But he also had the pleasure of trying real traditional country cooking, guaranteed "fait maison".

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