CJEU doesn't like the taste of copyright

Today, the Court of Justice of the European Union ("CJEU") decided that the taste of a food product is not eligible for copyright protection. The question was raised in a dispute concerning the spreadable Dutch cheese known as "Heksenkaas" ("witch cheese") and the CJEU's answer can be found here. In a nutshell, the CJEU rules that the taste of a food product does not qualify as a work because, in short, it cannot be pinned down with precision and objectivity.

The dispute leading up to this CJEU decision revolves around two spreadable dips containing cream cheese and fresh herbs: "Heksenkaas" on the one hand and "Witte Wievenkaas" on the other hand. The manufacturer of Heksenkaas, Levola Hengelo B.V. ("Levola"), took the position that the taste of this food product is protected by copyright and that Smilde Foods B.V. ("Smilde") infringes this copyright with the production and sale of the "Witte Wievenkaas" food product. Smilde however alleged that a taste in itself cannot be protected by copyright. The Court of Appeal of Arnhem-Leeuwarden sought a preliminary ruling by the CJEU to end the ongoing debate (see also our eNewsletter of 27 June 2017) on the possibility of copyright protection of a specific taste.

CJEU Decision
In the present judgment, the CJEU rules that the taste of a food product cannot be protected by copyright as it is not a work within the meaning of the Copyright Directive (2001/29/EC).

In order to qualify as a "work", there are two cumulative conditions that must be met: the subject matter needs to be (i) original in that it is the author's own intellectual creation and (ii) the expression of that creation. With reference to the Berne Convention, the WIPO Copyright Treaty and the TRIPs Agreement, the CJEU further explains that protection may be granted to expressions but not to ideas, procedures, methods of operation or mathematical concepts. The CJEU then goes on to state that the subject matter protected by copyright only qualifies as a work if it is expressed "in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in a permanent form" (para. 40).

The CJEU however finds that the taste of a food product cannot be "pinned down with precision and objectivity". Rather, "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" (para. 42). The CJEU also points out that "currently" it is not technically possible to identify, in a precise and objective manner, the taste of a food product and distinguish it from the taste of other products of the same kind.

With this judgment the CJEU followed the opinion of the advocate general, as was generally expected. The legal certainty rationale underlying the decision is furthermore understandable: in order to rely on copyright protection, one must be able to identify the subject matter in a precise and objective way. Not all seems lost though: it will be interesting to see whether copyright protection for taste will perhaps be possible in the future upon advancement of the "state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product" (para. 43)!