Should taste be protected by copyright? Referral to the Big Cheese….
In this rather quirky reference, the CJEU has been asked by a Dutch Court of Appeal to consider whether the taste of a food product (in this case, cheese) can qualify for copyright protection.
Background
The Dutch company, Levola, is well-known in the Netherlands for its popular garlic and leek cheese spread sold as Heks'nkaas (which translates as "witches' cheese" – because it is supposedly "met een tikje magie" – "made with a touch of magic"). Keen to protect its popular products, Levola has been no stranger to litigation and has commenced legal proceedings against various competitors over the years, asserting its rights in the copyright for the taste of its Heks'nkaas cheese spread.
Levola relied on a 2006 Dutch Supreme Court ruling in Lancôme v Kefoca where it was held that the smell of a perfume, may, in principle, be eligible for copyright protection. (Just days before, however, the French Supreme Court had held that the smell of Dior's Dune fragrance was not eligible for copyright protection – it resulted from 'the simple implementation of a skill' rather than being an artistic creation.)
The Dutch lower courts have not always taken the same view in relation to the copyright protection for the taste of the Heks'nkaas cheese. The Hague District Court initially granted a request for the ex-parte seizure of allegedly infringing products, based on what they considered a sufficiently substantiated copyright infringement claim, although it was later dismissed. The Hague District Court claimed that Levola had failed to show exactly what constituted the subject matter for which they were seeking protection i.e. the taste of the cream cheese. The difficulty for Levola, however, was how could they define the taste of the cheese, especially when it is a subjective matter and varies from one person to the next and can depend on circumstances, e.g. the temperature? In a parallel case in the Gelderland District Court, the claim was also held to be without merit. Levola then appealed to the Arnhem-Leeuwarden Court of Appeal which has now referred various questions to the CJEU.
Questions referred
In a nutshell, the CJEU has been asked (mainly by reference to the Copyright Directive (2001/29/EC) and the Berne Convention):
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Can the taste of a food product qualify for copyright protection under European law?
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Does the instability of a food product and/or the subjective nature of the taste experience prevent the taste of a food product from being eligible for copyright protection?
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If the taste of a food product does qualify for copyright protection under EU law, what are the requirements for the copyright protection of the taste of a food product?
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Is the copyright protection of a taste based solely on the taste as such, or (also) on the recipe?
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What evidence should be put forward by a party claiming a copyright-protected taste? Can a party present the food itself to the court to taste and smell so the court can make an informed decision, or should they provide a description of the creative choices involved in the taste and/or recipe to demonstrate the author's "own intellectual creation"?
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How should a court determine whether the taste of the defendant's product corresponds to such an extent with the taste of the claimant's that it constitutes copyright infringement?
Comment
The CJEU will now need to revisit some of its previous rulings, (Infopaq, BSA and FAPL) to determine what is meant by a 'work' (which is not defined in EU law) alongside the concept of 'originality', in the sense that a 'work' must be 'the author’s own intellectual creation'. The Berne Convention has an open-ended definition of 'literary and artistic works' - these works "shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression...". The WIPO Guide to the Berne Convention states that from the general tone of the Convention, it follows that "these [works] must be intellectual creations".
It will be interesting to see whether the CJEU decides that the taste of a product could, in some circumstances, be considered a 'work' for the purposes of EU law , thus broadening the categories of works eligible for copyright protection under EU law. This would be in contrast to the UK law where the Copyright Designs and Patents Act 1988 (CDPA) limits the types of works in which copyright can subsist. The CDPA is not particularly helpful for copyright owners in the UK when dealing with less conventional copyright works which do not easily sit within a specific category e.g. the Stars Wars Stormtrooper helmet which was held not be an artistic work.
Watch this space for further cheesy updates on this case…..
EDIT: The hearing for this case was on 4 June 2018. We now await the Advocate General's Opinion.