The taste of cheese cannot benefit from copyright? 29 Sep 2018

In his Opinion in case C-310/17, AG Melchior Wathelet addressed the question whether the taste of food products can enjoy copyright protection. Starting from the premise that originality by itself is not sufficient for copyright protection, he argues that ‘the existence of a work on the one hand and the fact that it is original on the other are two distinguished requirements and shall not be put on equal footing’ (para 46). So, copyright protection is a two-step test: first, the subject-matter must be a type of work that could be protectable under copyright and, second, it should present originality.

But is the taste of cheese a type of work that could benefit from copyright? AG Wathelet points that the indicative list enshrined in the Berne Convention includes types of works that can be perceived with visual or audio means, but not via other senses such as scent or taste and further notes that, where there has been serious doubt about whether certain types of works should avail from copyright protection, ad hoc international legislative measures were adopted (paras 51, 52).

According to AG Wathelet, the well- known idea-expression dichotomy also offers an argument against the protection of taste or scent via copyright (para 55). He also argues that original creations should be identifiable in a sufficiently precise and objective manner, which cannot happen with taste. Interestingly, AG Wathelet draws from the CJEU’s judgment in Sieckmann (C-273/00), where the ability of a scent to qualify as a trademark was examined.

Concluding, the Advocate General holds that the taste of food products cannot qualify as work and thus cannot enjoy copyright protection. AG Wathelet’s opinion can be found here (in Greek).

It appears that legal certainty is a major driver in the AG’s opinion and taste of food is too transient, too volatile and, thus, too uncertain.

For cheese producers disappointed by AG Wathelet’s approach, it may be worthwhile reminding that patent law can serve to protect the product and/or its method of protection, and trademark law cover the brand. Truth be told, copyright protection would last longer, but, on the other hand, there is the broader question of whether the taste of food products is something copyright should, from a legal-political prism, extend to.