The European Court of Justice, in a recent judgement dating 13 November 2018 (case C 310/17), gave a preliminary ruling concerning the interpretation of the concept of a ‘work’ under Directive 2001/29/EC on copyright and the possibility of including the taste of a food product in its definition.

The dispute arose from these facts: ”Heksenkaas”, a spreadable dip containing cream cheese and fresh herbs, is produced by Levola. The producer considered that the production and commercialisation on the Dutch territory of a cream cheese named “Witte Wievenkaas” could infringe the copyright concerning the taste of its product, which resulted from a creative combination of ingredients, and for this reason sued its competitor. The competitor defended itself by stating that copyright protection is intended purely for visual and auditory creations, also taking into account that the instability of food products (i.e. with reference to the passage of time and climate conditions), as well as the completely subjective perception of a flavour, make the exclusive rights of the author of an intellectual property work inapplicable to the inventor of a taste.

At first instance, Levola’s claim was rejected. The Court of Appeal considered instead that the key issue in the case was whether the taste of a food product could be eligible for copyright protection. Given the divergence in the case-law of the European national Supreme Courts, the judge requested a preliminary ruling, asking the ECJ to specify whether the European law could prevent a copyright protection.

First of all, the Court of Justice underlined that, given that the Directive 2001/29/EC makes no reference to the laws of the Member States to determine the meaning of a ‘work’, the definition must be interpreted uniformly throughout the European Union. As a consequence, the taste of a food product is eligible for copyright protection only if, according to the aforesaid Directive, it can be qualified as a ‘work’.

The Court states that “two cumulative conditions must be satisfied for subject matter to be classified as a ‘work’ within the meaning of Directive. First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation. Secondly, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29”. Under Directive 2001/29/EC and according to the Berne Convention and WIPO Treaty to which the EU is bound, the definition of a ‘work’ involves an expressive form which, even if not necessarily permanent, is at least identifiable with sufficient precision and objectivity.

Referring to the taste of a food, the Court considered that it is impossible to accurately and objectively identify the subject of protection. In fact, the perception of a flavour is based mainly on personal and changeable impressions and taste experiences, which depend on several factors: age, food preferences and consumption habits, as well as the environment or the context in which the product is tasted. In addition, in the current state of scientific development it is not possible to accurately and objectively identify the taste of a food product such as to distinguish it from other products.

In conclusion, the Court stated that, according to Directive 2001/29/EC, the taste of a food product is not eligible for copyright protection. In addition, in order to grant a uniform interpretation of the concept of a ‘work’ throughout the European Union, it stated that the Directive prevents national legislation from being interpreted contrary to what has been said.