Food fights among rival hawkers, neighbouring states and even countries in the region are not uncommon but can one claim ownership of food?
THE only thing that tops politics, religion and football (in no particular order) on the “sensitivity chart” of Malaysians is food.
Criticise a man’s favourite roti canai and you may just find yourself at the end of a fork attack.
Declare another’s homestate fare as the best in the country and you’d have made a friend for life.
Malaysians bond over food but they also fight over who has bragging rights to knowing the best place to eat in town.
Food is a very sensitive subject because Malaysians are very passionate about eating, says National Heritage Department Intangible Heritage Division director Ruhani Mamat.
“I am a Johorean and, from personal experience, I find the assam pedas from Johor and Malacca to be distinctively different but both are delicious in their own right.
“The former uses daun limau perut while the latter contains daun kesom (laksa leaves), and in Batu Pahat, black pepper is added,” she says, stressing that regardless of where a dish originates from, it is still an important intangible national heritage.
Recently, Malacca Chief Minister Datuk Idris Haron unwittingly started a “civil war” when he announced that the state had planned to patent “assam pedas Melaka” as a heritage dish of the state.
He added that Malacca also planned to organise a cooking competition to search for the best assam pedas in the state.
The declaration proved too spicy for its neighbour, Johor, whose exco for Youth, Sports, Culture and Heritage Datuk Zulkurnain Kamisan, in an immediate response, bitingly called the plan “absurd”.
The hot and spicy fish dish, commonly made with dried chillies, shallots, turmeric, garlic, tamarind juice, lemon grass, belacan (shrimp paste) and daun kesom, is common across the country, he is reported to have said.
Zulkarnain also said it would be unhealthy for the country if every state were to claim or patent its traditional dishes, adding that if Malacca wanted to patent its assam pedas, Johor could also do the same with its nasi briyani, nasi ambeng, mee bandung, botok-botok, lontong and sambal goreng.
He then questioned whether those who want to cook the dish, including chefs, would end up paying royalty to the state if it did manage to patent assam pedas.
This is not the first time a “battle” has broken out after claims for bragging rights to heritage foods were raised, and it definitely won’t be the last.
Former Tourism Minister Datuk Seri Ng Yen Yen once had Singaporeans raising their ladles and rolling pins in arms when she declared that laksa, nasi lemak and bak kut teh were some of the food Malaysia could lay claim to.
There were many dishes synonymous with Malaysia’s identity but they had been “hijacked” by other countries, she said at the 2009 Malaysia International Gourmet Festival.
Malaysia, she said, had to lay claim to food like chilli crab and Hainanese chicken rice.
Her comments sparked a virtual food fight online between Malaysian and Singaporean netizens.
Then, two years ago Penang assam laksa made seventh place on CNN’s top 10 ranking of the most delicious food in the world, a giant leap ahead of the chilli crab, attributed to Singapore.
Again, foodies from the Lion City roared as their chilli crab dish was only ranked 35th while its chicken rice was at 45th spot.
Celebrity chef Ismail Ahmad, obviously proud of this achievement, couldn’t resist stating that chilli crabs and chicken rice were also 100% Malaysian as these had been brought over when Malaysia and Singapore split in 1963.
Although assam pedas has been gazetted as a “National Heritage” on the National Heritage Department’s list of heritage food (www.heritage.gov.my), it is not attributed to any state.
On why some dishes on the list did carry the name of their states, like Penang char koay teow, laksa Johor and bubur pedas Sarawak, the department’s Registration and Enforcement Division director Syed Khalid Syed Ali explains that it’s to pay homage to where the dish became famous and where it is most “dominant”.
“In the case of assam pedas, it is not exceptionally well known in any particular state,” he says. “Like satay and nasi lemak, which have gained global recognition, people don’t ask about which state the food comes from but they know it is Malaysian so we must be proud.”
Syed Khalid asserts that there’s no point fighting over which state can claim ownership of a dish because “ultimately, it’s the people who will decide on where to go for the tastiest servings. We should be forward thinking and promote our delicious cuisine as authentically Malaysian instead.”
To date, the department has gazetted more than 100 dishes as “National Heritage” under the National Heritage Act 2005. Gazetting them as “National Heritage” means legally recognising their significance.
Syed Khalid emphasises that only items that are famous, significant nationwide and represent the best of the country will make the cut. The department will not consider those that are only dominant in a particular place, he says.
He also clarifies that gazetting a dish under Malaysian law is “by no means to claim ownership” but rather a move to recognise and safeguard the country’s intangible heritage as well as to ensure that future generations are aware of them.
Malaysia’s neighbours are free to gazette dishes that they have in common with us, yet none has done it, he reveals.
Food is a very unique heritage because of its cultural, social and historical influence that transcends state and regional boundaries, Syed Khalid says.
“In the 1960s, assam pedas and nasi lemak used to be popular only among the Malays because these are spicy while char koay teow and yong tau foo were favoured by the Chinese. Today, these dishes are loved by all communities as they have been assimilated into the Malaysian culture. No one race can claim ownership to global heritage and I don’t think food can be protected by intellectual property law,” he says.
“National Heritage” food must evoke a sense of unity and pride among Malaysians, he adds.
“The list, started in 2007, is a true representation of the 1Malaysia concept and includes both tangible and intangible ‘National Heritage’,” he says.
If there are applications for other dishes to be included in the list, the department will do its own research and submit the findings to an expert panel. Everything is then passed on to the heritage commissioner.
“Once the commissioner approves the new additions, the final say rests with the Tourism and Culture Minister,” says Syed Khalid.
The department is in the midst of preparing an extensive database on “National Heritage”, including food.
For national heritage food, details like the basic ingredients, methods of preparation and significance will be archived to protect their identity.
“What makes a particular dish a ‘National Heritage’ is how it has been adapted and accepted by the Malaysian palette, not where it originated,” Syed Khalid says.
“For instance, if you taste the rendang in Padang, Indonesia, it is very different from the one served here; their gravy is thick and rich with santan.
“Other examples are nasi kandar and teh tarik. We interpreted and adapted these dishes creatively to make them our own unique heritage although they were obviously brought here from India.
“In a nutshell, heritage food is what the Malaysian tongue will recognise no matter where they are in the world.”
Generally speaking, says Lee Hishammuddin Allen & Gledhill partner Bahari Yeow, who is also the firm’s intellectual property head, a state, country, entity or organisation may claim right over any intellectual property.
Intellectual property can be a trademark, patent, industrial design, geographical indication, copyright or right over confidential information or document.
“If one is talking about branding or putting a certain mark over a type of dish which is exclusive to a particular state or country, it is possible for a state or country to claim proprietorship over the mark or brand used on the dish, provided that the state or country is the first user of the mark.
“(Under patent law), only an invention is patentable,” he says, adding that an invention can be a product or a process.
He says an invention is patentable if it is new, involves inventive steps and is industrially applicable.
An invention means an idea of an inventor which permits in practice the solution to a specific problem in the field of technology.
“An invention will not be considered ‘new’ if it is anticipated by prior art,” explains Bahari.
“Prior art shall consist of everything disclosed to the public, anywhere in the world, by written publication, by oral disclosure, by use or in any other way.
“Therefore, if a certain type of dish is already known or disclosed to the public in any way, it may be difficult for any person or entity to lay any claim in patent over that type of dish.”
He says that goods (defined as “any natural or agricultural product or any product of handicraft or industry”) can be protected under the Geographical Indication Act 2000 (Act 602) but the dish must consist of natural or agricultural product which originates in a country or territory where a given quality, reputation or other characteristic of the goods is essentially attributable to their geographical origin.
He also feels that a trademark may not be registered if it consists of a word having direct reference to the character or quality of the goods or in its ordinary meaning, a geographical name or surname, or is generic.
“For example, one may not be able to claim monopoly over the word ‘chair’ or ‘book’ as their brand or mark,” he says.
A recipe, irrespective of its quality and the purpose it was created, can be protected under copyright or law of confidence, he points out.
This is provided that sufficient effort has been expanded to make the recipe original in character and the recipe is written down, recorded or otherwise reduced to material form, he says.
However, copyright protection shall not extend to any idea, procedure or concept.
“Alternatively, the owner of a recipe may also rely on the law of confidence,” he explains.
According to a senior intellectual property expert in Kuala Lumpur, whether a state or country can lay claim to a certain type of dish will depend on what is being claimed (for example the name of the dish or the recipe itself), what intellectual property rights may subsist as regards the name or recipe (the name may be protected as a trademark or geographical indication or a recipe may be protected as a trade secret) and if the state is the owner of the particular right in question.
“Names such as chicken rice cannot be registered as a trademark as it is commonly used and thus cannot be distinctive of any particular entity and as such cannot serve its purpose to identify the origin of a particular product.
“However, where a term such as ‘Champagne’, ‘Parma ham’ or ‘Swiss chocolates’ are used to identify the goods as originating in a particular country, territory, locality or region and where a particular quality, reputation or characteristic is attributed to its geographical origin, then it may be protected as a geographical indication.
“So, ‘assam pedas Melaka’ may be protected as a geographical indication.
“Persons who may file to protect the geographical indication would be the person(s) who make ‘assam pedas Melaka’ within Malacca, a competent authority including the state government, a trade organisation or association representing the makers of ‘assam pedas Melaka’ in the state,” she says.
As for the recipe, she says it can be protected if it is a new dish and the recipe is kept a trade secret.
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