Perfume is deeply connected to human experience, often triggering emotions and memories. Scents like ylang-ylang and oud can lift our spirits or transport us to distant places. Yet, despite their profound effects, perfumes remain largely unprotected by copyright law. Advances in technology, particularly artificial intelligence (AI), may soon change this, creating new opportunities and challenges for protecting fragrances.

The Challenge of Copyright for Perfumes

Currently, perfumes do not qualify for copyright protection. Copyright laws typically protect fixed, lasting forms like books, music, and visual art. Perfumes, however, present unique challenges for legal protection due to several factors:

1. Subjectivity: Scent perception is highly subjective. A fragrance that one person finds delightful, another might perceive as unpleasant. This subjectivity complicates the definition of a scent within legal frameworks.
2. Ephemeral Nature: Perfumes can change over time. They may lose their potency or evolve in fragrance as they age. Copyright law usually protects works that maintain a consistent form, making it difficult to apply to scents.
3. Lack of Fixation: Copyright applies to works that are fixed in a tangible medium. Since perfumes lack this kind of fixation, they do not fit neatly within traditional copyright definitions.

How AI Could Transform Perfume Protection

Recent advancements in AI and scent digitization are starting to reshape the fragrance industry. Companies like Aromyx and Osmo .ai are developing methods to create digital representations of scents, enabling their quantification and analysis. This innovative approach could address challenges related to subjectivity and fixation in copyright law concerning perfumes.

A recent breakthrough is the Principal Odor Map (POM), a digital mapping tool using a graph neural network to relate molecular structures to odors. The POM helps overcome the complexity of olfaction. Unlike color, which the human eye detects with three receptors, scent involves over 300 receptors, making scent mapping significantly more complex. The POM arranges similar odors as nearby points, allowing for more precise scent categorization.

Key Findings of the POM

Mapping Smell: By categorizing odors, POM offers a way to define scent digitally, which could help establish a basis for protecting fragrances.

Model Testing: The POM accurately predicted human scent perception and even identified effective mosquito repellents, suggesting their broad potential.

This technology opens up new avenues for intellectual property, as it provides a way to “fix” scent data in a digital format.

For readers interested in more detail, read further at Google Research on Odor Mapping.

New Avenues for Intellectual Property Protection

With the integration of AI and digitization, the potential for new forms of IP protection is on the horizon. To qualify for protection, a perfume must exhibit originality, akin to other creative works. Experts suggest that unique and complex fragrances may fulfill this criterion.

However, challenges remain regarding the separability of artistic and functional elements. Perfumes serve a dual purpose: they are both artistic creations and functional products that enhance our experience.

If technology can capture just the artistic essence of a scent, it may pave the way for new avenues of legal protection.

Regional Differences in Intellectual Property Approaches

The U.S. and EU take different approaches to copyright law, which may affect the future of perfume protection. The U.S. often emphasizes public benefit and economic value, while the EU places greater importance on creator rights and originality. As the perfume industry evolves, both regions may need to reevaluate their laws to recognize and protect perfumes as unique artistic expressions adequately.

Challenges of Copyrighting Fragrances

While the potential for protecting scents through new copyright laws is exciting, lawmakers must proceed cautiously. Granting copyrights to perfumes could lead to new challenges, including the risk of overly broad protections that could stifle creativity and competition in the fragrance market. Thoughtful consideration is needed to balance the rights of creators with the interests of consumers and businesses.

Conclusion

As technology advances, the fragrance industry stands on the brink of transformation. The integration of AI and digitization presents opportunities for better legal protection of perfumes. However, challenges persist in securing copyright due to the ephemeral nature of scents.

Lawmakers must revise copyright laws to fairly protect perfume creators and acknowledge the artistic value of scents. Striking a balance between protecting creators’ rights and encouraging competition in the perfume market is essential, especially given the differing copyright laws worldwide.

---

Sources:

• https://research.google/blog/digitizing-smell-using-molecular-maps-to-understand-odor/
• https://www.allure.com/story/future-of-fragrance-artificial-intelligence
• https://www.businesswire.com/news/home/20210720005471/en/Aromyx-Closes-10-Million-Oversubscribed-Series-A-to-Keep-Pace-with-Demand-for-Technology-to-Help-Understand-Consumer-Preferences-and-Design-Better-Products
• https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1020&context=mtlr
• https://stanforddaily.com/2019/10/11/stanford-grads-startup-aromyx-aims-to-quantify-taste-and-smell/
• https://www.science.org/doi/10.1126/science.ade4401