The taste of a food product cannot be classified as a work: the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity. The taste of a food product cannot be pinned down with precision and objectivity. It will be identified essentially on the basis of taste sensations and experiences which are subjective and variable, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of taste.
CJEU Press Release: In today’s judgment, the Court makes clear that, in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive. Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original intellectual creation. Secondly, there must be an ‘expression’ of that original intellectual creation.
In accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights, which was adopted in the framework of the World Trade Organisation and to which the EU has acceded, and with the WIPO Copyright Treaty, to which the EU is a party, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such. Accordingly, for there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.
Accordingly, for there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.
In that regard, the Court finds that the taste of a food product cannot be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable. They depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.
Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind. Accordingly, the Court concludes that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the Directive.
IPPT20181113, CJEU, Levola v Smilde
Read the full press release here.
