CJEU Rejects the Notion of Copyright in Taste

A preliminary ruling of the Court of Justice of the European Union (“CJEU”) rejected the notion that the taste of a food product can be protected by copyright by ruling that such does not fall within the meaning of a ‘creative work’ and therefore be eligible for copyright protection in terms of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.  

Facts in Brief

The company Levola Hengelo BV (“Plaintiff”) claimed that its copyright and intellectual property rights in the taste of “Heksenkaas”, a spreadable dip containing cream cheese and fresh herb, were being infringed by Smilde Foods BV.

The Plaintiff’s claim was rejected at first instance in the applicable court in the Netherlands on the basis that the Plaintiff had failed to show which elements, or combination of elements of the taste gave the product its own original character. The Plaintiff appealed this first instance judgement, claiming that the taste of a food product can be classified as a literary, scientific or artistic work eligible for copyright protection which resulted in the Dutch Court of Appeal referring a number of questions to the CJEU, essentially, requesting the determine whether EU laws permit the conferment of copyright to the taste of a food product.

The Ruling

Interestingly, the CJEU highlighted that although the EU is not a party to the Berne Convention, it is obliged under the treaty establishing WIPO to implement articles 1 to 21 of the Berne Convention.

Under article 2(1) of the Berne Convention, literary and artistic works include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression.

The CJEU addressed the question posed by outlining that the taste of a food product can be protected by copyright only if such a taste can be classified as a ‘work’ eligible for copyright.

Two cumulative conditions must be satisfied for a subject matter to be classified as ‘work’ eligible for copyright: (i) the subject matter must be the author’s own original intellectual creation and (ii) for a subject matter to be classified as work, it must be the expression of the author’s own intellectual creation.

The CJEU declared that subject matter protected by copyright must be expressed in a manner which make the subject matter identifiable with sufficient precision and objectivity. Such elements are necessary for authorities responsible in affording copyright protection and for economic operators for reasons of competition. Subjectivity can be detrimental to legal certainty and the subject matter must permit manifestation and expression in a precise and objective manner.

The CJEU noted that in the current state of scientific development, no sufficient method has been developed to determine taste in an objective manner. Thus, the taste of a food product cannot be pinned down with precision and the way that the taste of a food product is identified remains subjective, based on sensations and experiences and for such reasons, the taste of a food product cannot be considered as ‘work’ thus precluding it from copyright protection.

Crucially, the CJEU held that for the purpose of uniformity in the interpretation of the Copyright Directive, national courts cannot rule in an opposing manner and thus state that the taste of a food product is to be considered ‘work’ afforded copyright protection.

Article by Dr Terence Cassar and Dr Bernice Saliba.

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Disclaimer: This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.