In a case involving spreadable cheese, the European Court of Justice (ECJ) has ruled that a taste can not be protected by copyright as it is subjective and undefinable.

In doing so, the Court has further clarified the requirements for copyright protection, that work must be capable of being expressed with precision and objectivity.

The case was brought by Levola, a Dutch manufacturer of a soft cheese spread called Heksenkaas or Witches Cheese. The manufacturing process for Heksenkaas was patented in 2012. In 2014, another spreadable cheese, Witte Wievenkaas, also a reference to witches, was manufactured and sold in shops in the Netherlands by Smilde. Levola brought proceedings against Smilde before the Rechtbank Gelderland (Gelderland District Court, Netherlands) claiming an infringement of their copyright over the ‘taste’ of Heksenkaas.

The District Court

The District Court rejected Levola’s case on the grounds that they had not indicated which particular elements of the taste of Heksenkaas gave it its unique, original character and personal stamp. Levola appealed to the Regional Court of Appeal in Arnhem-Leeuwarden who referred the case to the ECJ for a preliminary ruling on the interpretation of the concept of a ‘work’, as referred to in Directive 2001/29/EC, otherwise known as the Copyright Directive.

The Advocate General’s Opinion

Before the ECJ considered the matter, Advocate General Watheletgave an opinion, considered by IP Harbour here. He was very clear that the taste of cheese could not be protected by the Copyright Directive as it is not recognisable with sufficient accuracy and objectivity.

The ECJ’s Ruling

On 13 November 2018, the ECJ handed down its judgment in Levola Hengelo BV v. Smilde Foods BV, (E.C.J., No. C-310/17 11/13/18).

Expressions not ideas

The ECJ sets out the legal context, namely the Berne Convention, World Trade Organisation rules and the World Intellectual Copyright Protection Organisation’s Copyright Treaty. This framework protects the rights of authors in their literary and artistic work in so far as it constitutes an “expression” and not an idea or set of procedures, methods or mathematical concepts.

What is a “work”

The ECJ then set out the relevant provisions of the Copyright Directive (Articles 1-5) and of Dutch law which protect the author’s right to authorise or prohibit reproduction by any means and in any form of their works. Articles 1 and 2 of the Auteurswet states that copyright is the “exclusive right of the author of a literary, scientific or artistic work to communicate that work to the public and to reproduce it.”

The taste of a food product is not included in Article 2’s non-exhaustive list of protectable works and Levola argued that it should be. They relied on the decision of the Supreme Court of the Netherlands in Lancôme (NL:HR:2006:AU8940) which accepted in principle the possibility of copyrighting the scent of a perfume.

Smilde responded with two points. First, that the body of copyright law outlined in the Auterswetand Copyright Directive covers visual and auditory creations only. Second, that taste is a subjective experience, rendering the author’s rights practically inapplicable.

In deciding this issue, the ECJ started with basic principles. First, the subject matter must be original in the sense that it is the author’s own intellectual creation. Second, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’. Moreover, the subject matter protected by copyright must be expressed such a way as to make it “identifiable with sufficient precision and objectivity” [40]; this includes the need to ensure that there is no element of subjectivity.

This is required to ensure copyright authorities can practically enforce the law and, crucially, to protect legal certainty, which could be undermined should the interpretation of a work depend on subjective experience. Therefore, the work “must be capable of being expressed in a precise and objective manner” [41].

The ECJ found that a product’s taste cannot be identified with precision and objectivity, only on the basis of subjective and variable sensations and experiences which depend on factors particular to the taster. Therefore, that the taste of a food product cannot be classified as a ‘work’ within the meaning of the Copyright Directive.

Conclusion

This is an important judgment. It is likely to be cited in future cases concerning what qualifies as a work capable of copyright protection.

Some legal practitioners believe the Dutch Courts should have been bolder and made the decision themselves, as previous rulings point logically to these conclusions. However, the uniformity of EU Law is an important principle underpinning the Single Market and the very fact that the Dutch Court referred the case to the ECJ means that there is now a single rule to be applied across the union: work must be capable of being expressed with precision and objectivity.