The CJEU in Levola Hengelo BV v Smilde Foods BV (“Smilde”) gave an important judgment on the meaning of a “work” under EU law and whether taste is capable of being protected by copyright as a work. In summary, the court held that Directive 2001/29/EC (the “InfoSoc Directive”) 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.
The request for a preliminary ruling was made by the Dutch Regional Court of Appeal, in May 2017, in the context of proceedings in which it was claimed that Smilde’s “Witte Wievenkaas” spreadable dip infringed rights held by Levola in respect of copyright in the taste of its “Heks’nkaas” food product. Part of the motivation for the request seems to have been the different approaches evident in Member States as to whether or not smells can be protected by copyright.1
Advocate General Wathelet, who delivered his opinion on 25 July 2018, noted that copyright protection extends to original expressions and not to ideas and that those expressions, by reference to the Sieckmann 2 criteria for trade marks, should be identifiable with sufficient precision and objectivity so that the scope of a work’s copyright protection can be determined. Such legal certainty was in the interests of both the copyright holder and potential third party infringers. AG Wathelet was of the view that a taste is “ephemeral, volatile and unstable” and should not be considered a work for the purposes of copyright protection.
The Grand Chamber of the CJEU delivered its judgment on 13 November 2018. The CJEU held that two cumulative conditions must be satisfied for subject matter to be classified as a “work” within the meaning of the InfoSoc Directive: (i) the subject matter concerned must be original in the sense that it is the author’s own intellectual creation; and (ii) it must be the expression of the author’s own intellectual creation.
The Court then referred to the idea/expression dichotomy as set out in Article 2 of the WIPO Copyright Treaty 3 and Article 9(2) of TRIPS, 4 i.e. that copyright protection may be granted to expressions, but “not to ideas, procedures, methods of operation or mathematical concepts as such”, before saying “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.” Like AG Wathelet, the Court’s conclusion was influenced by the need to ensure that subject matter protected by copyright can be identified clearly and precisely, both by the authorities and economic operators, and without any element of subjectivity.
The Court held that the taste of a food product did not meet those criteria. It said:
“42. 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.”
The Court held, moreover, that it was not 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.
The Court concluded that the taste of a food product cannot therefore be classified as a work, within the meaning of the InfoSoc Directive. The Court also held that the concept of a work must be given an autonomous and uniform interpretation throughout the EU and so the InfoSoc Directive precludes national legislation from being interpreted in such a way as to grant copyright protection to the taste of a food product.
- This is a significant judgment in that it, for the first time, harmonises the meaning of a “work” for the purposes of EU law. It does so, first, by adopting the threshold for originality, which was first set out in Case C‑5/08 Infopaq International (i.e. that it be “the author’s own intellectual creation”) as the first requirement for a work. As a result, a work, by definition, will always be an original work. The second requirement is then that a work be the expressionof such intellectual creation, which must make it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.
- The legal basis for these requirements is not entirely clear from the judgment – in particular it is not clear how the requirement for precision and objectivity of expression necessarily follows from the idea/expression dichotomy. The conclusion that taste is more subjective than other senses is also questionable – the paragraph quoted above, in particular, seems to focus on factors that suggest subjective appreciation of taste rather than subjective experience of it. A musical work, for instance, might equally be subjectively appreciated depending on the age (and strength of hearing), musical preferences and listening habits of the listener, as well as the environment or context in which it is listened to. It may be that some people in fact experience taste differently to others – for instance if they have a greater number of taste buds, and aromas can also influence perception of taste – though that does is not clear from the reasoning of the Court.
- Nevertheless, the adoption into EU copyright law of criteria that broadly mirror the Siekmanncriteria is to be welcomed. Although the Siekmann criteria are rooted in the graphical representation requirement that arises from registration of trade marks, the absence of any registration requirement for copyright protected works in the EU arguably heightens the need for the public to be able to identify such works, and the limits of their protection, with a tolerable degree of certainty.
- The requirement for precision, the Court’s reference to an absence of technical means to identify a taste and the acceptance of a need to be able to identify copyright protected subject matter, suggest that it would be practically unworkable to extend copyright protection to taste - at least given the standard of technology today. Enforcing copyright in a taste would bring about other practical difficulties too – what does it mean to copy a substantial part of a taste? How would the Courts discount the aspects of a taste to the extent that it is a copy of a taste which has been previously made available to the public?
- The CJEU decision must also cast doubt on whether copyright can properly subsist in a smell – again, at least given the standard of technology today.
- The CJEU’s harmonisation of the meaning of a work suggests that anything that meets the criteria set out in the judgment should be protectable as a work as a matter of EU law. It is conceivable that some such work might not fall within one of the categories of works listed in the (exhaustive) definition of a work in the Irish Copyright and Related Rights Act 2000.5 While that seems like a remote possibility, and the CJEU’s judgment was to a significant extent rooted in the Berne Convention, which provides for the protection of what it describes as “literary and artistic works”, the possibility of protection arising for a type of work that falls outside of the traditional categories of work, and a potential conflict between the 2000 Act and EU law, is something that should not be entirely discounted.
- As things stand, copyright in a taste would likely have to be assessed under the Irish legislation as an artistic work, a category in which it arguably does not sit comfortably.
- The Court of Cassation in France ruled that scent was not capable of being subject to copyright protection (Cour de cassation, civile, Chambre commerciale, 10 décembre 2013, 11-19.872, Inédit), whilst in the Netherlands the Dutch Supreme Court accepted the possibility of copyright protection of a scent (Lanôme, Hoge Raad der Nederlanden, 16 June 2006.)
- Sieckmann, C‑273/00, 12 December 2002
- World Intellectual Property Organisation (“WIPO”) Copyright Treaty of 20 December 1996.
- The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) of 15 April 1994.
- Under the 2000 Act a “work” means a literary, dramatic, musical or artistic work, sound recording, film, broadcast, cable programme, typographical arrangement of a published edition or an original database and includes a computer program except in Part II, Chapter 7 where “work” means “literary, dramatic, musical or artistic work or film”.