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As you probably know from prior rants on this blog, I think the U.S. Patent System is completely screwed up, especially with regards to software patents. Since I’m in Paris right now, I was pondering French food when I remembered Eric von Hippel and Emmanuelle Fauchart’s brilliant paper titled Norms-Based Intellectual Property Systems: The Case of French Chefs.
Norms-based IP systems are an alternative (or a complement) to legal based IP systems. The Case of French Chefs is a superb example of how this works. If you care a lot about IP protection – especially if you think our current system has issues – this paper is definitely worth reading and pondering.
* Stuff in italics below was taken directly from a presentation that von Hippel gave in April 2006. *
von Hippel and Fauchart studied 500 chefs including “1 and 2 star”, “those waiting for a star”, and “2 and 3 fork” dudes. These folks – when asked about the “importance [your] customers place upon finding original recipes (your own creations) on your menu” responded with an average of 4.52 (std dev: 0.72) where 5 was very important. So – originality is very important.
However, traditional IP law doesn’t work to protect recipes for the following reasons.
- Patents: Recipes almost never meet the novelty requirement for patent protection.
- Copyright: Chefs can copyright the graphics and text associated with presenting information about a recipe as in a cookbook – but not the recipe itself.
- Trade Secrecy: Chefs can protect secrets such as the ingredients used or the technical instructions to accomplish the recipe through contractual means such as confidentiality clauses in contracts with employees but chefs say they seldom do this, citing the reason that it’s too expensive to enforce this through the courts.
Given that originality is important in this domain, you’d think these guys would have come up with a way to protect their recipes. Well – they have – using a “norm-based IP system.”
The concept of social norms to influence behavior have been floating around for a while years. “Social norms are pervasive and powerful structural characteristics of groups that summarize and simplify group influence process. They generally are developed only for behaviors which are viewed as important by most group members (Hackman 1976).”
From the research, von Hippel and Fauchart determined that French Chefs have three rules of “correct behavior” that follow:
- Right to not be copied exactly: Chef’s expect that “honorable” chefs will not copy their recipes exactly even if the information needed to do so is public.
- Right to selectively reveal: Chefs expect that those to whom they reveal a recipe in confidence will not “abuse their trust” by passing that information on to others.
- Authorship right: Chefs expect to be credited as the authors of the recipes they develop.
These social normal work extremely well – in French Chef society, if you violate one of them, you are outcast. For example:
- Functionaly similar to patent: “If another chef copies a recipe exactly we are very furious; we will not talk to this chef anymore, and we won’t communicate information to him in the future.”
- Functionaly similar to contracting regarding trade secrets: “If I give information to another chef I trust him to not pass it on. I do not have to say this.”
- Functionaly similar to contracting regarding trade secrets: Said to a chef who didn’t credit another chef as the source of a recipe: “Sir: Your [TV] presentation has revealed a rare ingratitude … You should admit that presenting recipes that are mine and that I taught you without referring to my name constitutes an unacceptable indelicacy.”
In addition to anecdotal evidence, von Hippel and Fauchart’s paper has a series of statistical studies that substantiate their hypotheses and the conclusion that – while there is still a lot to learn about norms-based IP with regard to information sharing among French chefs – it’s clear that this is a powerful and effective approach to enforcing IP ownership in this domain.
Now – try substituting “software developer” for French Chef. While there are definitely some things to work out, if we add a few simple lessons from open source software development communities, you can almost imagine a norms-based IP approach for software.