In its judgment of November 13, 2018 (C-310/17, https://bit.ly/2PvBKbR
) the Court of Justice of the European Union had to take a stand regarding the concept of a “work” under the Copyright Directive (Directive 2001/29). The CJEU concluded that the concept of a “work” shall be interpreted uniformly throughout the European Union.
A Dutch manufacturer of a spreadable cream cheese dip sold under the name “Heksenkaas” asserted copyright claims against a competitor in a Dutch infringement case. The Dutch Court of Appeal referred, inter alia, the question whether the taste of a food product could claim protection under the Copyright Directive.
The CJEU denied this on the following grounds: According to international law applied to the Copyright Directive, copyright protection is granted to expressions, not ideas. Thus, the subject matter – in this case the taste of cream cheese – has to be expressed in a manner that is clearly and precisely identifiable. The CJEU held that a clear and precise identification is impossible as the taste of a food product depends on taste sensations and experiences and thus on subjective and variable factors. In light of the requirement of legal certainty the taste of a food product does not qualify as a “work” within the meaning of the Directive. The CJEU leaves for discussion, however, whether the taste of a food product could be subject to copyright protection if it could be objectively identified on the basis of the scientific or technical means.
It is in fact difficult to imagine on what basis two cream cheese spreads should be compared in a practically meaningful way. As is widely known, it’s all a matter of taste.