I was supposed to be on a panel on Friday (“For Such Kind of Borrowing as This, If It Be not Bettered by the Borrower, among Good Authors Is Accounted Plagiary”) at this year’s Cookbook Conference at the Roger Smith Hotel in NYC—but, alas, winter storm Nemo deep-sixed my travel plans. I had hoped to introduce our topic by talking a bit about the differences between plagiarism and copyright violation. I’m sure Cathy Kaufman and the other panelists were able to survive my absence, but here are some of the things I would like to have said:
Plagiarism, or piracy, has been with us for as long as we’ve been human, In fact, it might well be among the disreputable candidates for the title of “world’s second-oldest profession.” It’s just too tempting to retell a great story as if it were our own.
Before the printing press was invented, “plagiarism” was a rather meaningless term. Early writers freely copied the work of their predecessors, often verbatim, as if they had written it themselves. It was regarded almost as an acknowledgment of a writer’s erudition. Considering the fact that the only way a book could be produced was by physically copying each and every page with a quill pen, the physical book was the precious thing – not the “content,” as we think of it today. For example, by law, any ship that arrived at the Egyptian port of Alexandria had to surrender any books it carried to the collection of the city’s famous library. If the book’s original owner wanted to “keep” his book, he could have a scribe make a duplicate.
The earliest known cookbook, De Re Coquinaria, is merely a collection of recipes, collected from unknown sources, and attributed to one of several people named “Apicius” who had probably lived centuries before the book was compiled. The name “Apicius” was more of a marketing tool than a mark of someone’s intellectual property.
The invention of the printing press in the fifteenth century changed everything. The physical book became cheap, and the content became something of value as authors began to make money off book sales (rather than through some form of patronage). The early days of printing had a wild-west-like quality that may seem eerily familiar to those of us who are writing in the Internet Age. Printers routinely reissued entire books, changing only the title and author. Cookbooks (and herbals) were early best-sellers, hence were routinely pirated.
The first attempt to tame the rampant plagiarism was England’s “Licensing Act of 1662.” It was not, however, designed to protect the rights of authors. Instead, it helped the printers to establish a monopoly on the sales of registered books. Writers would sell the “content” for a set fee, and the title was then the property of the publisher. There was nothing like today’s system of royalties, so—even if a book became a best seller—the author’s only chance of increased profit was by using the book’s success in negotiating the next book contract.
That changed in 1710. The “Statute of Anne” created the world’s first copyrights, making the author the sole owner of the work for a period of fourteen years. If, at the end of that term, the author was still alive, the copyright could be renewed for another fourteen-year term. I’d like to believe that today’s payment situation (in this electronic free-for-all that is the internet) will be resolved as it was after the early days of printing—but that is a subject for another panel.
When our new nation was formed, in the glow of The Enlightenment, the Founding Fathers realized the importance of ideas—so they incorporated, into their new Constitution, language that would secure “for limited times to authors and inventors the exclusive right to their respective writings and discoveries." It was followed, three years later, by “Copyright Act of 1790.” Like the “Statute of Anne,” it protected an author’s rights for fourteen (plus an additional fourteen) years.
Over time, the copyright law has been modified and extended to reflect changes in technology (and authors’ longevity), so that today any work created after 1 Jan 1978 is protected for the life of the author, plus seventy years.
It’s useful to think of plagiarism as an ethical term, and copyright as a legal term—and, as with all things ethical or legal, there are some precise details and some that are ripe for interpretation. Both concern the rights and responsibilities of cookbook writers.
Plagiarism is practically a capital crime in academia. That’s because academics know that all knowledge is the result of carefully building on that which has already been learned in the past. Think of it as preserving the chain of evidence: if the chain is broken—through misappropriation, inaccurate citation, or faulty quoting—all subsequent findings are threatened. It’s to every scholar’s advantage to carefully cite every idea that has come from someone else.
For a cookbook author, something similar is in effect. As Amanda Hesser said, in this very conference, "History of cooking is tweaking recipes." When we adapt or “tweak” a recipe, our work is part of a continuum of cooking ideas that stretches back to a time long before Apicius (whoever he was). Our work is more meaningful, not less, when we share the credit with those who came before us.
Copyright law, on the other hand, doesn’t protect ideas at all; that’s part of the realm of ethical concerns about which plagiary is concerned. Copyright only protects the expression of ideas. A list of ingredients in a recipe is an idea, hence not copyrightable—however, the way a recipe’s steps are written may be copyrightable.
So: “1 Tbsp. buckwheat honey” is not protected, but “warm one tablespoon of buckwheat honey with two tablespoons of freshly squeezed orange juice, stirring until completely dissolved” can be copyrighted. Does that mean that we can merely take another’s recipe, paraphrasing just enough to escape the letter of the law? Technically, I suppose we could, legally—but we would be ethically amiss, and risk violating the canons regarding plagiarism.
It is conceivable that a recipe might utilize some technique that is so innovative that it is patentable—but, again, that’s well outside the range of our current discussion.
I’m sure that the other panelists have already covered many of the complexities of the plagiarism/copyright problem. But it might be useful to summarize in a different way altogether. Tom Lehrer’s song about the mathematician Nikolai Ivanovich Lobachevsky included a bit of satirical advice we might all keep in mind:
Let no one else's work evade your eyes,
Remember why the good Lord made your eyes,
So don't shade your eyes,
But plagiarize, plagiarize, plagiarize...
Only be sure always to call it please research.
We all use recipes that have come before us to build new ones, but—if we’re careful to cite our sources, being “sure always to call it please research”—we will be remembered not as pirates, but as collaborators with the cookbook authors who preceded us.