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 - 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).]