This is, in essence, the fundamental question that has been submitted to the CJEU in the case C-310/17 (Levola Hengelo v. Smile Foods). The opinion of Advocate General Wathelet (read it here, no English version yet) released on 25 July 2018 is that the taste of food (in this case of cheese) is not protectable as a copyright work. Whilst the Advocate General’s conclusions are not surprising his reasoning raises questions about the meaning of a “work” under EU copyright law in general. It also remains to be seen whether the CJEU will follow the Advocate General’s opinion.

Judicial background

The Heks’nkaas is a cream cheese spread with fresh cream and herbs. Levola, the maker of the cheese, claims that Smilde, through its Witte Wievenkaas, has copied the taste of the Heks’nkaas and thereby infringed its copyright. The complaint was first filed before the Gelderland tribunal (Netherlands), which dismissed the case due to lack of originality and personal character of the taste (read the ruling in Dutch here). An appeal was made before the Gerechtshof Arnhem-Leeuwarden, which in turn requested a preliminary ruling of the CJEU on the following questions:

• Can the taste of a food product, as the intellectual creation of its author, be granted copyright protection?
• What can be understood as a literary and artistic work under Article 2(1) of the Bern Convention? Do the enumerated examples de facto limit the scope of the provision to works that can be seen and heard?
• Do the potential instability of a food product and the subjective character of a taste preclude a food product from being protected by copyright?
• Is the system of exclusive rights and restrictions provided by the Articles 2 to 5 of the InfoSoc Directive 2001/29 applicable to the taste of a food product?

The AG’s opinion

AG Wathelet first states that the notion of “work” is nowhere defined in the corpus of the European law. It is nevertheless necessary to provide a uniform definition of the concept, he stresses, and so it is the right and duty of the CJEU to harmonise the notion.

He then cites the Infopaq (C-5/08), Painer (C-145/10) and Football Dataco (C-604/10) case-law, whereby the Court underlined the need for an intellectual creation reflecting the author’s personality and creative freedom in order for a subject-matter to be eligible for copyright protection. Wathelet further refers to the originality criterion, which he then asserts, is necessary but not sufficient on its own. It is not enough for any object fulfilling the originality criterion to qualify as protectable by copyright: it has to be a copyrightwork.

Neither the Berne Convention, nor the WIPO treaty, nor the InfoSoc Directive 2001/29 (“InfoSoc Directive“) define what a work is. The Berne Convention however provides under Article 2(1) a long list of examples of protectable literary and artistic works. The list, which contains only visual and audible examples of works, is non-exhaustive and therefore does not explicitly exclude flavours, fragrances or other types of products perceptible only through taste, smell or touch. Wathelet further notes that no provision, in that convention or in any other international law binding treaty, protects the taste of a food product as a copyright work.

Moreover, the AG invokes the idea/expression dichotomy, by which an idea, a process or a recipe, cannot be subject to a copyright: only its expression, the concrete form by which it is materialized, can be.

Remarkably, the AG then made a parallel with the Sieckmann case-law (C-273/00), a trade mark case, to establish that an original expression should, in order to be eligible to a copyright protection, be precisely and objectively identifiable. The work should thereby have clear, precise, self-contained, easily accessible, intelligible, durable and objective characteristics. This argument de facto excludes the application of copyright to the taste of a food product, a qualitative element which currently cannot be described in clear and objective terms, but rather depends on the taster and his environment.

The potential instability of a food product and its taste is not deemed as a relevant argument to exclude a copyright protection, for the InfoSoc Directive does not require the work to be fixed in a material form. However, that instability is in his opinion a further obstacle to the precise and objective identification necessary to qualify as a work as defined by the InfoSoc Directive.

He concludes that the taste of a food product shall not be understood as a work in a copyright sense, and therefore cannot benefit from the exclusive rights of reproduction, communication to the public, making available to the public, and distribution.

Comments

This case could well have far-reaching consequences for European copyright law and UK copyright law specifically (given the UK currently has a closed list of copyright works). In his conclusions, the Advocate General essentially touches upon three basic questions:

• What is the role of the EU in the field of copyright? Despite it being traditionally a matter of national interest, the AG here emphatically intends to establish a single, uniform and autonomous interpretation for the notion of “work“. Though the objective of harmonization is laudable, it raises questions, particularly with regards to pre-existing national law and case law (for example, the UK differs from other continental EU jurisdictions by having a closed list of copyright works which has resulted in the UK Courts denying protection to works that may be protected in other EU countries).
• Are precision and objectivity necessary prerequisites to copyright? Wathelet remarkably answers in the affirmative, arguing rightly that subjectivity leaves the door open to legal uncertainty. Lack of clarity is however no foreign thing to copyright, as the examples of pastiche and parody can prove.
• How can something instable be precisely described without fixing it? Up to now, copyright was only applicable to works as personal expression of an idea, but it was not specified whether the work had to be fixed in some material form or not. So the scent of a perfume may be protected in some jurisdictions, for example. While the AG does not assert the contrary, he at the same time links that matter of fact with the disqualification of the taste of a food product as a copyright-protectable subject-matter.

From a legal point of view, most will agree that the conclusion reached by Wathelet makes sense. However, the reasoning behind it raises a number of crucial questions including in particular for the UK. It will be interesting to see whether the CJEU follows the path laid out by its Advocate General.

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