November 16, 2018
In 2017 the Dutch Court of Appeal referred various legal questions to the Court of Justice of the European Union (CJEU) in relation to what constitutes a “work” for the purposes of the relevant copyright directive.
The CJEU was looking at the case of a spreadable cream cheese and herb dib, Heksenkaas, which was produced by Dutch cheese manufacturer Levola Hengelo BV.
Lenvola was alleging that a rival Dutch cheese manufacturer had infringed its copyright by producing a spreadable cheese with the same taste as Heksenkaas.
In order to attract copyright protection, it would need to be established that the taste of food constituted a “work”.
The CJEU has decided that for there to be a “work”, there are two requirements:
1. the taste of food would have to be original in the sense that it is the author’s own intellectual creation; and
2. it must have been an expression of the author’s intellectual creation.
Copyright protection can be granted for expressions, but not ideas, procedures, methods of operation or mathematical concepts.
In this case, in order to attract copyright protection, the work must have been expressed in a way which makes it identifiable with sufficient precision and objectivity, even if the expression is not in a permanent form. This is so that the relevant authorities and competitors are able to identify the work.
However, the court held that the taste of food does not meet this requirement because it is identified through taste sensations and experiences which are subjective and variable. Also, taste can be influenced by personal factors which are unique to the person tasting the food, including age, food preferences and consumption habits.
Accordingly, the court concluded that that the taste of a food could not be classified as a “work” and therefore not be eligible for protection under the copyright directive.
It is, however, worth noting that a recipe, whether written down or recorded in some other way, can attract copyright protection.
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