This is one of the most remarkable cases that I have ever read. It is important because it greatly increases the range of creations in which copyright can subsist. I first thought it was a bit of a joke because that is how it was presented in the press (see Food taste 'not protected by copyright' rules EU court 13 Nov 2018 BBC website). Now I see its potential for all the creative industries.
The owner of the intellectual property rights in a spreadable dip called Heks'nkass sued Smilde Foods for infringing its copyright in the taste of its tip - yep, that's right taste - by making and selling a product called Witte Wievenkaas in the Gelderbank District Court (Rechtbank Gelderland). That court threw out the claim on the ground that "it was not necessary to rule on whether the taste of Heksenkaas was protectable under copyright law, given that Levola’s claims had, in any event, to be rejected since it had not indicated which elements, or combination of elements, of the taste of Heksenkaas gave it its unique, original character and personal stamp."
The claimant appealed to the Court of Appeal for Arnhem and Leeuwarden (Gerechtshof Arnhem-Leeuwarden) which considered that the key issue in this case was whether the taste of a food product was eligible for copyright protection, The reason that the appeal court thought that it might is that the Dutch Supreme Court had previously stated that copyright might subsist in the scent of a perfume in Kekova BV v Lancôme Parfums et Beauté & Cie SNC NL:HR:2006: AU8940. That was contrary to the decision of the French Cour de Cassation (see Legal News Fragrance d'un parfum: contrefaçon et concurrence déloyale 3 Jan 2014).
The defendant challenged the admissibility of the proceedings on the ground that the action should be dismissed because the claimant had not identified the elements of Heks'nkaas that were alleged to be the author's intellectual creation. The Court of Justice refused to entertain that point as it was exclusively a matter for the referring court. It observed that it was entitled to refuse to consider references where the point of law bore no relationship to the facts or where the issue was entirely hypothetical but neither was not the case here. There was no reason why it should not consider the questions that had been referred to it and it proceeded to do so.
The Court reformulated the first question as to "whether Directive 2001/29 must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste."
It held that the taste of such a product could be protected by copyright under that directive only if that taste can be classified as a ‘work’ within the meaning of the directive and in that regard, two cumulative conditions had to be satisfied in order for the subject matter to be classified as a ‘work’. First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation (Cases C-403/08 and C-429/08, Football Association Premier League and Others v QX Leisure and Others ECLI:EU:C:2011:631,  FSR 1,  1 CMLR 29,  All ER (EC) 629, EU:C:2011:631,  EUECJ C-403/08,  ECR I-9083,  ECDR 8,  Bus LR 1321,  CEC 242). Secondly, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of the directive 2001/29 (Case C5/08 Infopaq International A/S v Danske Dagblades Forening and Football Association Premier League).
Although the European Union is not a party to the Berne Convention, it is nevertheless obliged (under art 1 (4) of the WIPO Copyright Treaty, to which it is a party and which Directive 2001/29 is intended to implement) to comply with arts 1 to 21 of the Berne Convention, Under art 2 (1) of that convention, "literary and artistic works" include every production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be. Moreover, in accordance with art 2 of the WIPO Copyright Treaty and art 9 (2) of TRIPS, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such. Accordingly, for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
That is because the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular, economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity -- given that it is detrimental to legal certainty -- in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.
The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed. Moreover, it is not yet possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.
It must, therefore, be concluded, on the basis of all of the foregoing considerations, that the taste of a food product cannot be classified as a ‘work’ within the meaning of Directive 2001/29. In view of the need for a uniform interpretation of the concept of a "work" throughout the EU, it must follow that Directive 2001/29 prevents national legislation from being interpreted in such a way that it grants copyright protection to the taste of a food product.
The answer to the first question is that Directive 2001/29 must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste.
In view of its decision on the first question, the Court did not need to consider the second.
The answer to the national court's question was: "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 must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste."
(c) the typographical arrangement of published editions."
S.1 (2) adds for good measure that "copyright work" means a work of any of those descriptions in which copyright subsists.
What is remarkable about this judgment is that it greatly expands the creations in which copyright can subsist. It can include any production in the literary, scientific and artistic domain, whatever the mode or form of its expression may be so long as they are more than ideas, procedures, methods of operation or mathematical concepts as such and they are expressions of their authors' intellectual creation. The claimant only failed because taste is subjective. Should there ever be an objective means of identifying taste there would be no reason why flavour and fragrance could not be protected by copyright.
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