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Taste of food is not a copyright "work" - a decision that may grate on the cheese industry

In its judgment published this morning, the CJEU agreed with the Advocate General's opinion that EU copyright law should not be extended to the taste of food.

In previous blogs (see here and here), we have discussed the ongoing saga in copyright infringement proceedings relating to the taste of a cheese product.  In 2017, the Dutch Court of Appeal referred various questions to the CJEU for clarification on what constitutes a "work" for the purposes of the Copyright Directive (2001/29/EC) and the Berne Convention.

On 25 July 2018, Advocate General Wathelet gave his opinion on the referred questions.  According to the Advocate General, EU copyright law should not be extended to the taste of food.  In its judgment published this morning, the CJEU agreed with the Advocate General's opinion. The CJEU also issued a press release here.

Background

The dispute is between Dutch companies Levola Hengelo BV ("Levola") and Smilde Foods BV ("Smilde"). Levola produces a garlic and leek flavoured cheese spread called Heks'nkaas. Levola claimed that Smilde has infringed the copyright in the taste of Heks'nkaas by producing a spreadable cheese called Witte Wievenkaas with the same taste as Heks'nkaas. Levola claimed that the taste of Heks'nkaas qualified for copyright protection under EU law and in particular, that the taste of a food product can be categorised as a 'literary, scientific or artistic work'.

Levola justified its position by referring to a 2006 judgment of the Supreme Court of the Netherlands (Lancôme v Kefoca) in which the Supreme Court held that the smell of perfume, may, in principle, be eligible for copyright protection. The Dutch Court of Appeal disagreed, particularly in light of the diverging case law across Member States.  For example, the French Supreme Court rejected the possibility of protecting the smell of a fragrance.

The Dutch Court of Appeal referred various questions to the CJEU for clarification on whether the taste of a food product could constitute a "work" and, therefore, benefit from copyright protection.

The Advocate General's Opinion

Advocate General Wathelet noted that the Copyright Directive does not define a "work". The term is an autonomous concept of EU law which must be given identical scope in all Member States.  He stated that "originality", being the author's own intellectual creation through free creative choices (see Infopaq, Painer and Football Dataco), was not sufficient to create a "work" - the concepts are distinct.

The Berne Convention contains a non-exhaustive list of literary and artistic works, none of which are capable of perception by way of taste, smell or touch. Therefore, the Advocate General reasoned that the scope of protection did not extend to taste.  Similarly, the idea / expression dichotomy (enshrined in EU law through Article 9 of TRIPS) meant copyright should not protect a recipe which is merely an idea.

Lastly, the Advocate General drew an analogy between trade mark law and copyright. Trade marks must be sufficiently precise, self-contained, easily accessible, intelligible, durable and objective to be registered ("the Sieckmann criteria").  Copyright, too, must be sufficiently precise.  He held that taste was subjective, making the precise identification of the copyright work impossible. 

For these reasons, the Advocate General held that the taste of a food product was not a "work" which attracted copyright protection.

The CJEU's Judgment

Today, the CJEU has confirmed that the taste of a food product cannot be classified as a "work".

In the judgment, the CJEU stated that for there to be a "work", two requirements must be met. Firstly, the subject matter must be original in the sense that it is the author's own intellectual creation.  Secondly, the subject matter must be an expression of the author's intellectual creation.  Copyright protection is granted for expressions but not ideas, procedures, methods of operation or mathematical concepts (Article 9 of TRIPs). 

To be protected by copyright, the subject matter must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even if the expression is not in permanent form. This is because authorities and competitors need to be able to identify the work.  The taste of food does not meet that requirement because it is identified through taste sensations and experiences.  These are subjective and variable.  Taste can be influenced by factors which are particular to the person tasting the product.

Conclusion

In the UK, the Copyright Designs and Patents Act 1988 contains discrete categories of works. The taste of a food product would not fall easily within any of these categories.  A claimant could argue the taste is a work of artistic craftsmanship, but that argument would not be easy to run. 

The CJEU appear to have introduced the requirement that a work be a precise and objective expression of intellectual creation in order to benefit from copyright protection as a "work". It reasoned that taste is influenced by factors such as a person's age, their food preferences or the environment and context in which the food product is tasted.  However, this analysis is equally applicable to other types of copyright work.

Musical notes are heard differently depending on the listener's age and their ear's receptiveness. The environment in which music is played can have an effect on the sound and resonance.  The context in which music is heard can cause a different reaction in a listener.  Does this make music subjective and variable? It is debatable, although the press release indicates that a musical work is a precise and objective expression.

It is important that the parties to litigation and the authorities enforcing the copyright owner's rights are clear as to the scope of the work claimed. However, the need for precision and objectivity to reassure competitors is more important for trade marks than copyright.  This is because the trade mark register can be inspected.  By contrast, the scope of a copyright work is, in most instances, only defined when a dispute arises.

It will be interesting to see what effect this judgment has on copyright law going forward.

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