EU High Court Rejection Of Copyrights For Food Tastes Worries Rights Holders

A food’s taste cannot be pinned down with enough precision and objectivity to make it copyrightable under EU law, the European Court of Justice (ECJ) said on 13 November. The decision creates a new standard that could be applied to all European copyright works, but would likely be the same under US law, intellectual property lawyers said.

The case, Levola Hengelo BV v Smilde Foods BV involved a spreadable dip containing cream cheese and fresh herbs (“Heksenkaas), the court noted. Intellectual property rights to the product were transferred to Levola in 2011. When, three years later, Smilde began making a product called “Witte Wievenkaas,” Levola sued for copyright infringement in a Dutch court and, following a decision against it, appealed to a Regional Court of Appeal, which referred the case to the ECJ.

The parties took “diametrically opposed positions” to the issue of whether the taste of a food product can be copyrighted, the ECJ said. Levola argued that taste can be classified as a work of literature, science or art; Smilde said that protecting taste isn’t consistent with the copyright system, which is intended solely for visual and auditory creations. It also argued that the instability of a food product and the subjective nature of the taste experience precludes copyright protection, the court said.

Taste can only receive copyright protection under the EU copyright directive (2001/29/EC) if it can be classified as a “work” under the law, the ECJ said. To be classified as a work, the subject matter must be original in the sense that it is the author’s own intellectual creation, and only something that is the expression of the author’s own intellectual creation can be classified as a work.

Although the EU is not a party to the Berne Convention for the Protection of Literary and Artistic Works, it is still required under the World Intellectual Property Organization Copyright Treaty, which the directive implements, to comply with provisions of the convention that protect the expression of literary and artistic works but not ideas, procedures, methods of operation or mathematical concepts as such, the court said.

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,” the ECJ wrote. Authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify what is to be protected clearly and precisely, and there must be no element of subjectivity in identifying the subject matter, the court said, stating:

“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…”

New Test Worries Rights Owners

“The notion that a work has to be pinned down with precision and objectivity is new and raises questions about whether this test applies to all works, not just the taste of food,” said Hogan Lovells (London) IP lawyer Penelope Thornton.

There is no definition of a copyright “work” at EU level, so Member States have some flexibility about which categories of works are protected, Thornton told Intellectual Property Watch. That has led to some works being protected in one country that wouldn’t receive the same treatment in another, such as the smell of perfume, she said. The EU high court has now agreed with its advocate general that a work must be identifiable with precision and objectivity in order to be protected, she said. Rights holders will be concerned that the court “is attempting to harmonize the meaning of ‘works’ at EU level and that this new test could limit” their ability to protect non-conventional categories of works, Thornton said.

Are Chefs Artists?

In a June 2018 issue of Taste magazine, Noah Charney asked whether chefs should be considered artists, said Marshall, Gerstein & Borun (Chicago) intellectual property attorney Richard LaBarge. If so, their works could possibly be protected in the same or a similar way that works of other artists are. The US Copyright Office, however, would likely rule the same way as the ECJ, he said.

US copyright law extends protection to “works of authorship,” reading authorship broadly to cover such things as architectural works and pantomime, LaBarge said. But all the examples that the statute provides of things that can be protected by copyright involve things that people perceive through their senses of sight or hearing, not through the senses of touch, taste or smell, he said.

If protecting the creative efforts of chefs is an important policy matter, it will probably have to be done via legislation setting out when tastes can be protected and how much protection will be available, LaBarge said. “That’s what Congress did in 1998 when it decided that new designs for boat hulls should be entitled to protection. Food is more universal than that.”