The taste of a food is not protected by copyright

C-310/17

Levola v Smilde

Copyrights: Object of protection

13 Nov 2018

The matter at hand

Levola and Smilde are both Dutch companies involved in the food industry. Since 2011, Levola has been marketing a spreadable cream cheese dip under the name ‘Heksenkaas’. In 2014, Smilde also introduced a similar spreadable dip named ‘Witte Wievenkaas’.

Levola initiated proceedings before the Rechtbank Gelderland (District Court of Gelderland, the Netherlands) stating that the taste of the Heksenkaas-dip was an own intellectual creation and therefore eligible for copyright protection and that the Witte Wievenkaas dip was in fact a reproduction of the Heksenkaas dip, having an identical or highly similar taste. Levola claimed that the District Court should prohibit all production and commercialisation of the “Witte Wievenkaas”.

The court dismissed Levola’s claims, without ruling on the question whether or not the taste of the Heksenkaas dip could be protected by copyright. In appeal before the Gerechtshof Arnhem – Leeuwarden (Regional Court of Appeal, Arnhem-Leeuwarden, the Netherlands), lack of an ECJ judgment on the protection of tastes under the Copyright DirectiveDirective 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, the appeal court decided to stay the proceedings and refer the matter for a preliminary ruling.

The judgment of the ECJ

The ECJ first sets out that in order to qualify as a ‘work’ the subject matter must be original in the “sense that it is the author’s own intellectual creation” (paragraph 36) and secondly, that “only something which is the expression of the author’s own intellectual creation may be classified as a ‘work” (paragraph 37).

Considering the Berne Convention, the WIPO Copyright Treaty and the TRIPs agreement, the ECJ rules that it follows “accordingly, for there to be a ‘work’ as referred to in Directive 2001/29 [the Copyright DirectiveDirective 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], 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” (paragraph 40).The requirements that a work must be identifiable with sufficient precision and objectivity is, according to the ECJ, twofold. In the first place, “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” (paragraph 41). In the second place, the need to avoid any degree of subjectivity and thus legal uncertainty requires the protected subject matter to “be capable of being expressed in a precise and objective manner” (paragraph 41).

Applying these requirements, the ECJ finds that the taste of a food product cannot be pinned down with precision and objectivity foremost because “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.” (paragraph 42).

Concluding that due to the current scientific development it is not possible to achieve the required precise and objective identification by technical means, the ECJ rules that the Copyright DirectiveDirective 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.” (paragraph 45).

Commentary

The ECJ makes it clear that it does not wish to extend copyright protection to “tastes”. Although some may consider this a desirable outcome, the (theoretical) reasoning of the ECJ is weak and – thus – disappointing. The requirement of a work having to be sufficiently identifiable does not only seem at odds with the formalities ban of the Berne Convention, but is also somewhat of an escape route to avoid addressing the more principle issue of the possibility (and desirability) of copyright protection of ‘non-standard’ works. The ECJ does not seem to have ruled out copyright protection of tastes by matter of principle and thus, if science develops, a new approach may be adopted.

The choice of the ECJ to ‘hide’ behind practical obstacles is furthermore not entirely convincing since the ECJ does not seem to think that these same practical obstacles exist when it comes to protection of tastes of products that have an protected designation of origin (PDO). In last year’s judgment C-393/16 the ECJ held that whether a product had “a taste attributable primarily to the presence of Champagne” was a decisive factor in determining whether the PDO Champagne could be used to freely use the PDO. The ECJ thus presupposes that the Champagne-taste is sufficiently precise in an objective manner and that a distinction is possible with just any other sparkling wine.

Furthermore, in its reasoning the ECJ does not seem to be focussing on the work as such, but rather on the (possibility of) perception of the work. These are two distinctly different things. Also with regard to other types of works perceptions can be subjective and variable since they depend on age, preference etc. With any type of works there is always a certain degree of appreciation that is in the “eye of the beholder.”

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