“Can the taste of a cheese be protected by copyright?”

This post has been contributed by Professor Jonathan Griffiths, Module Convenor for Intellectual property

This was the unusual question confronted by the Court of Justice in (C-310/17) Levola Hengelo BV v Smilde Foods BV, a preliminary reference from the Dutch courts. It arose in the context of a dispute between the manufacturer of a soft cheese (“Heksenkaas”, a spreadable dip containing cream cheese and herbs) and a competitor, which produced a similar cheese. The manufacturer of Heksenkaas brought proceedings, arguing that the taste of its cheese was protected by copyright and that the competitor had infringed this intellectual property interest. The national court was uncertain whether the taste of a cheese could be protected under European copyright law and referred the issue to the Court of Justice. This reference gave the Court its first real opportunity to reflect fully on the nature of the “work” protected by copyright.

The Court stated that two conditions must be satisfied if for a work to be protected under the Information Society Directive, the most important Directive in European copyright law. First, it must be “original” (or, in the words of the Directive, it must be its author’s “own intellectual creation”). Secondly, and most relevantly in this context, it must be an expression of that intellectual creation. According to the Court, this latter requirement meant that “the subject matter protected by copyright must be expressed in a manner which is identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form” [40]. It held that the taste of a food product will necessarily fail this test because taste sensations are variable and subjective, depending upon factors particular to the person tasting the product, such as age, food preferences and consumption habits, as well as on the environment or context in which the food is consumed [42].

This conclusion is not surprising, and presumably means also that perfumes cannot be protected by copyright in the European Union (this has previously been an issue in some European jurisdictions – see here). Any alternative outcome would have been startling indeed.

Nevertheless, the Judgment in Levola is interesting. Students of intellectual property law will be aware that the concept of “work” is defined in accordance with a list of categories of protected forms under the United Kingdom’s Copyright Designs & Patents Act (s 1) (“literary work”, “artistic work”, “broadcast” etc). This so-called “closed list” system is relatively unusual amongst Member States of the European Union (see 7.1 of the Module Guide). Prior to the Judgment, there had been speculation that the Court would provide a substantive definition of the concept of “work” in EU copyright law – and that the “closed list” system operating under the CDPA 1988 would not be compatible with that defintion. Indeed, in his Opinion in Levola, Advocate General Wathelet had equated the concept of “work” in EU copyright law with that of “literary and artistic” work in international copyright law (the Berne Convention) [AGO48-54].

The Court itself did not provide a comprehensive definition of the outer limits of the concept of “work”, However, it did point out that the notion of the “work” was an “autonomous concept” of EU law and, in this context, strong doubts must persist over the compatibility of the UK’s (relatively unusual) “closed-list” system with EU copyright law in all instances..

Regardless of BREXIT, EU copyright law is likely to have considerable impact on the UK’s copyright law for the foreseeable future. In this context, the Court’s Judgment in Levola is likely to have considerable relevance for courts considering the application of the concept of “work” in unusual and controversial situations.