The Levola Hengelo CJEU decision: ambiguities, uncertainties ... and more questions

As announced earlier today, the Court of Justice of the European Union (CJEU) has finally issued its (short) judgment in Levola Hengelo, C-310/17, holding that copyright cannot vest in the taste of a food product (a spreadable cheese in the background Dutch proceedings).

The case is important for a number of reasons, and especially because it is probably the first time that the CJEU has been given directly the chance to tackle the notion of 'work' under the InfoSoc Directive (but, I would say, the overall EU copyright acquis).

Let's see how the CJEU reasoned.

'Work' under the InfoSoc Directive

The Court started by noting that the InfoSoc Directive harmonizes a number of economic rights and related exceptions and limitations, which concern the exploitation of 'works'. Yet, that piece of legislation does not define what is to be intended as 'work', nor does it make any reference to the laws of individual Member States.

This means, unsurprisingly, that the notion of 'work' is an autonomous concept of EU law, that is to be given an autonomous and uniform interpretation throughout the EU.

With particular regard to the taste of a food product, this means that copyright protection may only vest in said subject matter if it can be regarded as a 'work' in a EU sense. According to the CJEU, this means that two cumulative criteria must be satisfied:

1. The subject matter concerned must be original in the sense clarified in Infopaq and its progeny;
2. The subject matter must be a 'work' 

This part of the judgment appears rather tautological as the CJEU suggests that a 'work' is a 'work'. But that is not all: the Court also appears to (oddly) suggest that only something that is original is a work, as if originality was a requirement for a certain subject matter to be classified as a work:

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

'Work' under Berne

Moving on from this headache-inducing part of the judgment, having clarified (?) what a work is under the InfoSoc Directive, the CJEU turned to Article 2(1) of the Berne Convention. By adopting the InfoSoc Directive, the EU implemented into the EU legal order the WIPO Internet Treaties and Article 1(4) WCT requires compliance with Articles 1 to 21 of Berne.

This means that:

• the notion of 'work' must be intended having regard to Article 2(1) of Berne.
• the idea/expression dichotomy, as found in Articles 2 WCT and 9(2) TRIPs must be also taken into account.

According to the CJEU, it follows from these two considerations (?) that 

for there to be a ‘work’ as referred to in Directive 2001/29, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.

And even if the Court did not refer (as instead the AG had done) to the Sieckmann criteria in relation to the graphic representation requirement in trade mark law, it appeared to have them very much in mind when it used substantially the same language of that ruling in holding that:

first, the authorities responsible for ensuring that the exclusive rights inherent in copyright are protected must be able to identify, clearly and precisely, the subject matter so protected. The same is true for individuals, in particular economic operators, who must be able to identify, clearly and precisely, what is the subject matter of protection which third parties, especially competitors, enjoy. Secondly, the need to ensure that there is no element of subjectivity –– given that it is detrimental to legal certainty –– in the process of identifying the protected subject matter means that the latter must be capable of being expressed in a precise and objective manner.

All this served the Court to conclude that the taste of a food product cannot be identified with precision and objectivity. This would make it different from "a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression". All this appears rather questionable, especially because the Court associated such presumed 'objectivity' to the way in which one appreciates those works, rather than how they perceive them:

the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.

Spreadable Kat

But isn't the same be true for other types of copyright works as well? If what the Court suggests was true, then we would all like the same music, novels, and films ...

According to the Court the problem also relates to the current state of scientific development, ie to the same problem occurred for trade mark registration of less conventional signs, that is "to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind."

Because of all these considerations, the taste of a food product is not a work and cannot be protected under EU copyright law (and it would seem, international copyright law).

Comment

Despite being a fan of the CJEU, this time I have to admit that I am not sold. And that is not because of the particular outcome of the case (which, in a way, appeared necessitated), but because of the reasoning of the court in relation to the following points:

• First, conflating the notions of works and originality (which the CJEU did to a certain extent, when it tried to define the notion of 'work' under EU law, and is something problematic that it had done already in cases like Infopaq, BSA, and FAPL);
• Secondly, deriving from the idea/expression dichotomy a requirement that a 'work' satisfies something that - let's put it bluntly - mirrors the graphic representation requirement in trade mark law, as interpreted in Sieckmann;
• Thirdly, suggesting that copyright protection is subject to a requirement of 'objective' perception (and judgment).

All this said, however, the judgment is important and requires closer scrutiny. There are two additional, key points that deserve attention.

An EU fixation requirement

First, even if the CJEU denied that [at para 40], as a matter of fact, it mandated (as the AG had done before it) a fixation requirement in EU copyright law. Reference to the need for precision and objectivity of the subject matter appears in fact to imply that some sort of fixation is present. Would it be in fact possible to have subject matter that is precise and identifiable without it being also fixed in some material form? All this raises question marks in relation to Berne, as in principle member states are free to determine whether fixation should be or not a requirement in their own copyright laws.

Unconventional Kat

Subject matter categorization

The second point of interest, which I discuss more at length in this forthcoming book, relates to the fact that, under EU law, copyright protection under EU law arises when (1) there is an intellectual creation, that is (2) a work.

The CJEU could have not stated that more clearly.

The implications of all this are that the same type of subject matter is to be protected across the EU. On the one hand, this would prevent protection by means of copyright of subject matter that does not fall within the EU notion of ‘work’ and, on the other hand, it would prevent Member States from excluding protection for works that, instead, fall within the EU notion. 

In this sense, closed national systems of protectable works (as is the case in Europe of the UK, Ireland, and Austria) would unlikely be compatible with EU law. This conclusion is in fact also prompted by the following consideration: if, on the one hand, we accept that solutions like the one of the Dutch Supreme Court in Kecofa v Lancôme, ie that copyright could vest in a perfume, may not be tolerated then, on the other hand, protection could not be denied in a certain work just because it does not belong to one of the categories envisaged by a certain Member State’s list of protectable works. At the time when the Dutch judgment was issued (2006) some commentators noted that disparities in the protection tout court of certain subject matter across the EU would raise, inter alia, free movement issues:

Dutch law is now out of step with that of all other EU member states. Parfumeurs welcomed the Dutch ruling, believing their work to be indubitably artistic. Such thinking sits comfortably with the Romantic vision of the author as uniquely entitled to proprietorship of created works, but this paradigm has been seriously challenged in post-modern times. It also draws on an aesthetic discourse of originality which cries loudly for protection but has a tendency to forget its own debts. TRÉSOR itself owes much to two earlier perfumes: Calvin Klein's ETERNITY and Sophia Grosjman's EXCLAMATION. In addition to the philosophical difficulties, there are practical problems. It will require considerable creativity to apply certain acts of copyright infringement (e.g. distribution, making available to the public) to fragrance, whose fundamental purpose is that it will perceived not only by the wearer, but also by those in the vicinity. Furthermore, the ruling creates an unacceptable impediment to the free movement of goods within the EU. Harmonisation will be essential if the Dutch approach is maintained.

The same would be true for works, possibly of a less conventional type, that are regarded as protectable in certain EU jurisdictions but not others. As a result, protection across the EU should be based on the same requirements and be subject to the same limitations.