The Authors' Take - Say nay to a tastier copyright: why the CJEU should deny copyright protection to tastes (and smells)

Say nay to a tastier copyright:

why the CJEU should deny copyright protection to tastes (and smells)

by Caterina Sganga

The debate on the external boundaries of the subject matter of copyright revives every time new technologies trigger the emersion of new forms of creative works. Less often, the discussion focuses on already existing objects which present features that make them differ from traditional copyright-protected works. Two glaring examples are recipes per se and perfumes, which cannot be perceived through mechanical senses (hearing and sight) as any other creation subject to copyright, but involve the much less sophisticated operation of chemical senses (taste and smell).

Against the silence of the EU legislator, from Infopaq on the CJEU has gradually elaborated its own harmonized notion of protected work, identifying it in any expression that is original, id est the “author’s own intellectual creation”. By merging the definition of the subject matter of copyright (work) with the criterion subsequently used as threshold of protection (originality), the Court has created the appearance of a borderless definition, able to stretch copyright so as to cover every original and perceivable creation, regardless of its features. The question of the treatment to be reserved to non-conventional works has obviously returned to the table, with a key role played once again by food products and scents (sensory copyright).

After a strain of conflicting national court decisions, the testing referral has finally reached Luxembourg. In Levola Hengelo, the CJEU is now asked to determine whether the taste of a spread cheese can be protected under the InfoSoc Directive. Waiting for a ruling that is expected to finally clarify the borders of the subject matter of EU copyright, this article makes a case against sensory copyright by illustrating a number of systematic and policy considerations which prove its inadmissibility under existing international and EU sources, and its potential negative economic effects on the internal market.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP).]