The verdict is out – no matter how tasty a cheese might be, it is not a “work” within the meaning of the Copyright Directive.
The Court of Justice of the European Union (CJEU) has finally handed down it’s judgment in Levola Hengelo, C-310/17 and the Court agrees with Advocate General Wathelet (see our previous article here). In the judgement, the Court made it clear that to be rewarded copyright protection, the taste of a food product must fulfil the standard requirements for copyright. In other words, the taste must be able to classify as a “work”, meaning that the subject matter must be an original intellectual creation and that there must be an expression of this original intellectual creation.
The Court continues by stating that to be eligible for copyright protecting, the work must be expressed “in a manner which makes it identifiable with sufficient precision and objectivity”. The Court found that compared with, for example, a literary or musical work, the identification of the taste of a food product is subjective and variable, depending on the person tasting it as well as on the environment in which it is consumed. Thus, the taste of a food product cannot be identified with precision and objectivity.
The Court concludes that in the current state of scientific development, it is not possible by technical means to achieve a precise and objective identification of the taste of food product to distinguish it from other similar products. Consequently, the spreadable cheese “Heksenkaas” will not be rewarded copyright for its taste – for now. (See the press release here).