Is there copyright in the taste of a cheese? Sensory copyright finally makes its way to CJEU

Heks'nkaas

Readers with an interest for copyright in unusual or, rather, less conventional 'objects' [I will explain below why the word 'works' might not be appropriate] will know that for quite some time it has been disputed whether IP protection - particularly in the form of copyright - is available to, say, perfumes or culinary creations.

So far proponents of sensory copyright have not been really met with widespread approval [for the sake of a debate organised in London a while ago by IPKat founder Jeremy Phillips and BLACA, I supported the motion that there is indeed such thing as sensory copyright - my slides are available here; Jeremy's report can be read here].

Not long time ago, contrary to some lower instances' decisions, the French Supreme Court dismissed for instance the idea that copyright could subsist in a perfume [here; here for a Dutch take on the matter], and in 2015 a Dutch court (Gelderland District Court) refused to acknowledge that copyright would subsist in the taste of a cheese, Heks'nkaas [see here and here].

Speaking of cheese, the Dutch saga of Heks'nkaas is - thankfully - not over.

The case is in fact making its way to the Court of Justice of the European Union (CJEU) for guidance on whether EU law allows copyright protection in taste (in this case, the taste of a cheese). 

Despite its subject-matter this new reference is anything but cheesy. 

The content of the CJEU reference

As explained by Amsterdam-based Syb Terpstra (De Brauw Blackstone Westbroek N.V), counsel to one of the parties in the Heks'nkaas case, yesterday the Arnhem-Leeuwarden Court of Appeal issued an interim decision, in which it held that guidance from the CJEU is needed to determine:

1. Whether EU law [read: the InfoSoc Directive] allows copyright protection in taste;
2. If so, what requirements must be met in order to determine subsistence of copyright protection? 

The actual questions are available (in Dutch) here [thanks to @TreatyNotifier for providing the link].

Mac'n'cheese

Why this reference is important

This new case promises to be a very interesting and important one, if the CJEU deems it admissible. 

The reason is essentially that the CJEU will need to clarify at last what is meant by 'work', thus revisiting and elaborating further on its earlier case law, notably Infopaq and its progeny [particularly BSA and FAPL].

In that string of cases the CJEU held that under EU law copyright protection should arise any time a work is 'its author’s own intellectual creation', ie a work is sufficiently original. In FAPL, for instance, the CJEU had to determine whether football matches as such can be eligible for copyright protection. The court denied that that would be the case of football matches because they "cannot be classified as works. To be so classified, the subject-matter concerned would have to be original in the sense that it is its author’s own intellectual creation." [paras 96 and 97]

There is no legislative definition of 'work'. I argued elsewhere that CJEU case law appears to suggest that the notions of 'originality' and 'work' conflate, in the sense that the assessment of originality entails that of whether a certain 'object' is to be regarded as a 'work'. Possibly the reason for this is that in the Infopaq line of cases (and even in BSA), the focus of the questions referred to the CJEU was more on what originality means, rather than what a work is. In this sense, the Heks'nkaas case will be to some extent different [at least as long as the CJEU does stick to the text of the questions as referred, instead of re-writing them]. The focus will be primarily on defining the notion of 'work' and then perhaps re-visit the topic of originality.

Guidance as to what a 'work' is - at least in the context of the InfoSoc Directive - must be found outside the body of EU law, possibly in Article 2 of the Berne Convention. The InfoSoc Directive, in fact, implemented into the EU legal order the WIPO Internet Treaties; the WIPO Copyright Treaty mandates compliance with Articles 1 to 21 of the Berne Convention.

The Berne Convention adopts an open-ended definition of 'literary and artistic works'. Article 2(1) does not define the term ‘works’, although it clarifies that such expression “shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”. 

According to the current WIPO Guide, although the general tone of the Convention suggests that “it is not possible to speak about a complete definition” (BC-2.2.), “the context in which the words “work” and “author” are used in the Convention – closely related to each other – indicates that only those productions qualify as works which are intellectual creations (and, consequently, only those persons qualify as authors whose intellectual creative activity brings such works into existence).” (BC-2.3.). Does the taste of a cheese fall within such definition of 'work'? 

In general terms, it may be said that “[t]he term ‘production’ … only indicates that the protected object must have emerged from the mind of a person, left the sphere of the mind and become realized. This coincides with the term ‘expression’ also contained in the definition.” [§5.66]

Does the taste of a cheese fall within such definition of 'work'? 

'Say cheese'

Why this reference could have been is important for the UK

An additional profile of relevance of this new CJEU case is that there is the potential for the CJEU to hold - particularly, but not necessarily only, if it acknowledges the possibility of sensory copyright - that EU law envisages an open-ended subject-matter categorisation.

While this is already the case of continental copyright traditions (relevant statutes do not limit the types of works in which copyright can subsist), the same is not true for the UK and Ireland.

With particular regard to the former, the Copyright, Designs and Patents Act 1988, in fact, envisages a closed list of eligible copyright subject-matter [see also my guidance for students here]. As UK-based readers know, this has proved challenging for less conventional works, in the sense that not always a suitable category can be identified. This has resulted in denying copyright protection in, say, the assembly of a scene (Creation Records) or the Stormtrooper helmet (Lucasfilm).

In a piece published on GRURInt I argued that EU law - or, rather, CJEU case law - mandates the opening up of UK subject-matter list. Although 1709 Blog readers did not agree with this proposition, in his judgment in SAS v WPL, Arnold J [at para 27] held that: "In the light of a number of recent judgments of the CJEU, it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) of the Copyright, Designs and Patents 1988 and defined elsewhere in that Act." At the same paragraph, however, referring to Infopaq the learned judge added that: "it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Article 2(1) of the Berne Convention ... While the definition of "literary and artistic works" in Article 2(1) is expansive and open-ended, it is not unlimited."

With hard Brexit [ie a situation in which the UK will be no longer bound by EU law and CJEU judgments] on the horizon, some might think that the Heks'nkaas case will have a more limited relevance for the UK. However:

• According to latest CJEU statistics [the average duration of CJEU proceedings in the context of references for a preliminary ruling is 14.7 months: see p. 28], when the Heks'nkaas case is decided the UK will be still part of the EU;
• As clarified by UK Government in its White Paper accompanying the Great Repeal Bill, this bill "will provide that historic CJEU case law be given the same binding, or precedent, status in [UK] courts as decisions of [UK] Supreme Court" [p. 14].

In conclusion

The Heks'nkaas case is one to watch. Not only will it determine to what extent copyright protection can be stretched [let's not forget that since Sieckmann, trade mark protection has not been really available to sensory 'signs', and things will not really change in my view with the disappearance of the graphic representation requirement], but also what system of copyright categories EU law or, rather, the CJEU envisages.