While it is not necessarily an IP issue within the digital arena, the recent CJEU decision in connection to copyright and the taste of cheese reaffirms the traditional approach to Copyright law. The case of Levola Hengelo BV v Smilde Foods BV, had the potential to redraw the boundaries of what would be covered by copyright, given that under basic copyright legislation like the Copyright, Design and Patents Act 1988 S1 in the UK, outlines that copyright can only subsist within the following: original literary, dramatic, musical or artist works, sound recordings, films or broadcasts, the typographical arrangement of published editions. It does not include the taste of food or drink, and such a decision in favour of the arguments for copyright on the taste could be extended to things such as Wine and Whiskey, which could have huge ripples across various markets.
In the case, two questions were asked by the court. First was as to whether EU law precludes the taste of a food product as the authors own intellectual creation from being granted copyright protection? In reference to the first question, the court considered whether under the InfoSoc Directive, the scope of Art. 1’s concept of “Works” could include that of the taste of cheese. In reference to this, the court determined that there were two requirements, first was that it had to be the Author’s original intellectual creation, as previously stated in Football Association Premier League and Others, C‑403/08 and then subsequently it must be an expression of their intellectual creation. Under this basic consideration, one could argue that the taste of cheese and recipe used to achieve said taste does fall under these notions of the authors own creation and expression. However the CJEU further noted the EU is required to consider the Berne Convention, and that under Art. 2 established that Artistic and Scientific works include every production no matter the mode or form of their expression. While this again does seem vague and provide scope for the taste of cheese to be covered in some form, the court stated the expression must be in a form that the subject matter can be clearly identified, which taste does not fall under.
Secondly, if the answer to the first question was no, what requirements are there for copyright to subsist in the taste of a food product. This second question is irrelevant as they determined that the taste of food or drink is precluded from falling under copyright protections. Though it is still an interesting area, as the court would have had to answer what are the requirements for such a copyright in taste, and whether copyright it would stretch beyond the taste and also include the recipe for the product. The second element of this is interesting in and of itself, because given that if the recipe is written down, then there is copyright within that individual piece of work, as is arguably seen within cooking books. The implication of “Taste Copyright” straddling both the writing of the recipe and the results produced from following that recipe, is that anyone making use of a cook book is a potential infringer of copyright. Ultimately it stretches the boundaries of what should be considered plagiarism and infringement, and the court took the right approach in maintaining the current understanding of copyright.
For matters regarding recipes, there are ways outside of copyright and the courts to protect the intellectual endeavours, as within certain communities such as Chefs, there are social norms that they rely on to manage their IP rights, as explored by Fauchart and Von Hippel in 2008. Which might be something that the European Court and domestic courts also should consider in future questions as to the protection of recipes and the end product.
The Digital Millennial Lawyer 