A French chef whose restaurant is given an extra “star” in the famed Michelin Guide (on a scale of 1 to 5) can expect a flurry of new patrons, prestige and profits in the coming year. Similarly, restaurants that “lose” a star can see sales drop by as much as 50%. Since there is so much money riding on the quality of food served in top French restaurants, why aren’t the recipes and food preparation techniques used by great French chefs protected by copyrights, patents or trade secret law? The answer, as explored in a fascinating paper by Emmanuelle Fauchart and Eric von Hippel, is that the social norms of the culinary professionals are a more effective tool for protecting the “proprietary” interests of top-flight chefs. The commons is the governance regime of choice for protecting the value of great French food.
Von Hippel is the MIT professor who has long studied user-driven innovation, most recently in his book, Democratizing Innovation. (See my earlier post on this book.) Fauchart teaches at the Conservatoire des Arts and Metiers, in Paris. After sending out a detailed questionnaire to 485 French chefs who had been given some form of recognition by the Michelin Guide, Fauchart and von Hippel studied the 104 responses and conducted ten in-person interviews. In their paper, “ Norms-based Intellectual Property Systems: The Case of French Chefs,” the researchers identified three strong social norms that assure that the culinary commons works effectively.
First, “a chef must not copy another chef’s recipe innovation exactly. … The community acknowledges the right of a recipe inventor to exclude others from practicing his invention, even if all the information required to do so is publicly available.” Second, “if a chef reveals recipe-related secret information to a colleague, that chef must not pass the information on to others without permission.” And third, “colleagues must credit developers of significant recipes (or techniques) as the authors of that information.”
Any chef who violates these norms is stigmatized or even ostracized by the community. And everyone else in the community is duty-bound to refuse to pass along any further information to those who violate the norms. Fauchart and von Hippel call these “norms-based fences” that give IP owners (the chefs who come up with innovative recipes and cooking techniques) an ability to grant selective access to “their” information.
What’s fascinating is that these social norms are rarely written down or explicitly discussed, and other chefs who may have no stake in the dispute are socially obliged to punish transgressors in order to maintain their own community standing. It’s also interesting how “selective revealing” of proprietary information builds up a reservoir of trust among members of the community. This, in turn encourages participants in the commons to share more information, and more valuable information, with each other. A community with strong bonds of social trust thereby becomes an engine of wealth-creation in ways that the market (with its impersonal, money-based relationships) can never replicate.
Finally, in a norms-based environment, it can be easier and cheaper to resolve disputes over the ownership of a work. A complainant appeals to influential members of the community, and their judgment and the consensus of the group tends to prevail. To be sure, this has disadvantages compared to due process of law (an inflamed mob may trample the rights of unpopular people), but in most instances it also has many attractive features (socially grounded verdicts, little expense, speedy remedies).
It is not difficult to draw parallels between the social governance used by French chefs and the social norms used by scientists, software developers and other communities to govern themselves informally. Duke law professor Arti Rai, for example, has written about the role of social norms in the flows of knowledge in academic science. She notes that there once was a strong communitarian norm that discouraged scientists from claiming ownership of their discoveries and inventions — an ethic that has eroded since the Bayh-Dole Act and related laws opened the door to patenting university research. Software communities, too, have their own social norms for managing the trading of knowledge.
The real frontier, as Fauchart and von Hippel acknowledge, is to learn more about how law-based systems of intellectual property interact with social norms-based systems. It’s also worth exploring what mechanisms allow commons and markets to complement each other in stable, sustainable ways. Introducing social norms into the mix, as Fauchart and von Hippel have done, is a promising way to start.