We have higher concerns with the aesthetics of the final dish, that is, its “plating”. For the culinary creation to be protected by copyright in Portugal and in the European Union (EU), is must be an original exteriorized creation of the intellect of a human being. This creation must be of the literary, artistic or scientific domain. The culinary creation must come from a human being (as a rule, companies cannot be authors, but there may be exceptions in the case of collective works, cf. Articles 16 and 19 of CDADC). The work cannot be an independent creation of nature, animals or an output of artificial intelligence. Namely, it cannot be the simple result of the prompts, in case of Generative Artificial Intelligence (which is now commonly used to create new dishes and food presentations, according to the prompts given by the user). Though nature, animals and artificial intelligence may be used by the author as instruments. The work must come from the mind. It doesn’t matter who executes it. Nevertheless, in many cases the author creates and executes the work (e.g., the sculptor, the chef, the cook, the writer). If the immaterial good is expressed through a physical medium, which often occurs, we must distinguish the author of the immaterial good, the work, from the owner of the physical medium where the work is incorporated, who doesn´t get copyrights just by owning of the tangible medium where the work is incorporated (see Article 10 of CDADC, exceptions in Articles 157 and 167). Without exteriorization the work remains within the mind of the author and cannot be perceived by the senses of others. Thus, it cannot be protected. Even if the author decides not to disclose the work, it must be separated from the mind of the author in the sense that it may be cognizable by others. If that occurs, it can be protected. Originality is fundamental for a work to be protected. The concept normally is not defined in copyright laws, and can differ a lot from country to country, mainly when we compare Continental copyright systems with Anglo-American copyright ones. In the European Union (EU) there has been a strong effort to harmonize the concept in four directives and mostly in the case law of the Court of Justice of the European Union (CJ/CJUE). EU legislature has provided a limited harmonization of the standard of originality, in respect to software (Article 1, nº3, of the Software Directive 91/250, now Article 1, nº3, of the Software Directive 96/9), databases (Article 3, nº1 of the Database Directive 96/9), photographs (Article 6 of the Term Directive 93/98, now Article 6 of the 222 MARIA VICTÓRIA ROCHA
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