The Authors' Take - CJEU rules that taste of a food product is not protectable by copyright

CJEU rules that taste of a food product is not protectable by copyright

by Léon Dijkman

In its recent decision Levola Hengelo BV v. Smilde Foods BV, the CJEU ruled that the taste of a food product is not protectable by copyright. According to the CJEU, the subject matter of a 'work' within the meaning of the InfoSoc Directive must be "expressed in a manner which makes it identifiable with sufficient precision and objectivity". The experience of taste, however, is inherently subjective and there are presently no technical means to achieve a precise and objective identification thereof. Consequently, taste cannot be protected by copyright.

Two things are particularly worth noting. 

The first is the scope of the objectivity requirement for works. Does it also cover smells? There are diverging views on copyright protection for smells in the Member States and it is tempting to think that the CJEU's decision sought to put an end to the controversy. Then again, it may well be that smell is easier to objectively identify than taste and the CJEU itself left the possibility of trade mark protection of smells open in Sieckmann. Additionally, the decision in Levola may also have ramifications for copyright in combinations of known elements and industrial designs, two cases where the determination of the work is notoriously subjective.

The second is that the decision is the latest example of the CJEU's preference for pragmatism over dogmatism. The CJEU justified its holding by reference to the Berne Convention and the WIPO Copyright Treaty, but I doubt that their provisions contain the limitation to works it has now proclaimed. In any case, the Berne Convention was signed in 1886 and the CJEU should be lauded for interpreting it in a manner fit for the 21^st century. Litigation over copyright-protected tastes would pose serious challenges to litigants and courts and the CJEU did the right thing in closing the door on them.

[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).] 

The Authors' Take - AG Szpunar pleads for a cautious use of fundamental rights in copyright

AG Szpunar pleads for a cautious use of fundamental rights in copyright

by Bernd Justin Jütte

With his Opinion in Funke Medien (C-469/17) Advocate General Szpunar opened the first (of at least three) rounds in which the Court of Justice of the European Union will test the boundaries of exclusive rights and copyright exceptions, and possibly also the limits of copyright in the EU (see also C-476/17 and C-516/17).

In proceedings before the German courts, the German Government seeks to prohibit the online publication of confidential military reports by invoking its copyright in the documents. The reports had been made available by the Westdeutsche Allgemeine Zeitung, a newspaper owned by Funke Medien. In the absence of an applicable exception in the EU copyright rules, the German courts asks whether Member States can exercise flexibility when implementing the exceptions under Article 5 of Directive 2001/29, and whether the fundamental rights of the Charter create exceptions to copyright beyond those expressly mentioned in the directive.

The Advocate General changes the perspective of the analysis and asks instead whether a restriction of the right to freedom of expression enjoyed by the newspaper can be justified by the government’s interest to protect its intellectual property in the reports. This is not the case when the reason for invoking copyright is to keep the information contained in the documents secret. It is, according to the Advocate General, not the purpose of copyright to protect the confidentiality of information. In such circumstances a limitation to freedom of expression cannot be justified on the grounds of intellectual property. Moreover, even if that were possible, a Member States could not, as a guarantor of fundamental rights, invoke the right to property against a private party.

Advocate General Szpunar cautions against a liberal application of fundamental rights in copyright cases outside of the legal provisions, which already reflect a balance between different interests and fundamental rights. Only in exceptional cases, for example when copyright is abused to achieve goals that are not covered by the purpose of copyright law, fundamental rights can serve as external checks to this property right. This line of argument is important, as it lends legitimacy to copyright rules, which should not be destabilized by challenges based on fundamental rights. Instead, the EU Charter should be used to interpret existing copyright rules. The Opinion can also be seen as an appeal to the legislator to review limitations and exceptions and to recalibrate, if necessary, the balance in copyright law.

[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).]