[Sca-cooks] Copy write/Sources and this list

[James Prescott]

At 12:25 AM +0000 11/26/10, yaini0625 at yahoo.com wrote:
>  One question that hasn't been asked or been clearly explained is: 
> when posting recipes to this list or any list are we sharing 
> information or are we infringing on the source?
>  Aelina the Saami


For this purpose I assume that you mean a public list, such that 
posting amounts
to "publication".  On a list with a sufficiently restricted 
membership that only
the membership could view, it wouldn't necessarily count as publication.

Posting in public becomes a question of "fair use", which is an area subject
to case law and so varies by jurisdiction.

If the recipe is not subject to copyright (either by being past its copyright
expiration date, or by being explicitly released into the public domain), then
there is no problem.

Other recipes should be presumed to be under copyright even if not so marked,
and the following guidelines apply.  The guidelines should all be considered
fuzzy.

In general, quoting multiple excerpts from a single work is considered fair
use provided you have a reason for including the quotations and provided the
quotations do not amount to a substantial portion of the original work.  And
provided you give proper credit.

If you write an academic article and quote from a single source portions of
recipes, or selected complete recipes, then (in most jurisdictions) as long
as you give proper credit this is considered fair use and you don't have to
ask for permission to quote.

An ongoing discussion on a list about some cooking topic, to which various
people contribute short relevant quotations (potentially including complete
recipes), would probably be considered to be fair use similar to an academic
article, provided proper credit is given.

A single recipe (that was not part of a larger work) quoted in its entirety
is perhaps tricky, since it is in one sense a "complete work", but happens to
be so short that quoting only selected portions of it may not be reasonable.
It would probably count as fair use provided proper credit is given.

Sharing recipes in a public arena "just because" falls into a fuzzy area that
could provide a good income for copyright lawyers.  Even with proper credit,
it isn't strictly fair use, but what copyright holder is going to go after a
casual "just because" posting?  If it were in the context of "this is a
wonderful / horrible book and here is a sample recipe that shows how good /
bad the book is" then you'd be back into fair use.

If the list were set up for the sole purpose of sharing copyright recipes,
it is probably in violation, and only the reluctance of the copyright
holder to sue would protect you.  A sufficiently upset publisher might
in fact sue the founders and / or users of such a list, and if nothing
else might obtain a cease and desist order.


A related illustrative example:

A few months ago someone intending to publish a book wrote to me asking for
formal permission to quote some of my translation.  It exhibits their
correct understanding of the fine line between fair use and unfair use,
in that they primarily wish to make money from quoting me (among others),
and so asked for permission (which I gave).  Here is a portion of their
request, with proper names altered to protect privacy:

<< I'm writing from Acorn Publishing, Berlin, where we're currently working
on a title called Culinary Delights. I'm putting together the chapter on
French culinary history, and am including a fair bit on the work of Guillaume
Tirel. I'd like to include a couple of passages of your translations, so was
wondering whether you'd be willing to grant license to use your text. We're
on a super tight budget so I wouldn't be able to offer payment, but you would
of course get full explicit accreditation in the book. >>

If they chose to regard their work as an academic work, and if the
quotations were a few excerpts chosen to illustrate their points, then
that might have been fair use.  However, they realize that this is not
really what they are doing, and that the quotations would probably not
fall within the normal bounds of fair use.  So rather than fudge the
fuzzy line, they play it safe and ethical and courteous and ask for
permission.  It took them only a few minutes and a couple of emails
to get that permission.


Thorvald