14 November, 2018

This Tastes Right - CJEU Rules Out Copyright Protection for Taste of Cheese

Sometimes a case comes around that both baffles, and excites intellectual property specialists. Something that makes you wonder why it had gone that far in the first place (let alone the costs), but nonetheless is something that we all want an answer to from the courts - and more often than not never do. Such a case has been the cheese taste copyright case, which seeks to answer the age old question; can you have copyright in the taste of cheese? This writer cannot even count the number of times he's wondered this very question, and finally, we have an answer, as the CJEU handed down their decision earlier this week.

The case of Levola Hengelo BV v Smilde Foods BV concerned the cheese "Heksenkaas", which is a spreadable dip containing cream cheese and fresh herbs, which was created by a food retailer in 2007, which then sold the rights to Levola. The manufacture process for Heksenkaas has been granted a patent in 2012, but no other registered rights vested in the product. Levola's competitor, a fellow cheese-making company, Smilde, sold a product called "Witte Wievenkaas", which, according to Levola, infringed on the 'taste' of Heksenkaas, and brought proceedings against Smilde, ultimately ending up with the CJEU.

The referring court asked the CJEU two questions relating to the protection of food through copyright.

The CJEU tackled the first question, which, in essence, asked "...whether Directive 2001/29 must be interpreted as precluding (i) the taste of a food product from being protected by copyright under that directive and (ii) national legislation from being interpreted in such a way that it grants copyright protection to such a taste".

The Court considered that, for copyright to vest in the 'taste' of cheese, it would need to be classified as a 'work' under the Directive. This comprises of two cumulative factors: (i) the work has to be 'original' in the sense that it is the author's own intellectual creation; and (ii) only something which is the expression of the author's own intellectual creation may be classified as a 'work'.

In addition to the Directive, the Court noted that the above would also have to comply with the Berne Convention, more specifically Articles 1-21 (which deal with the requirements for copyright protection under the Convention). Specifically, copyright protection would only be afforded to "...expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such".

Heksenkaas or not, cheese is amazing (Source)
Following the provisions above the Court considered that for there to be a 'work' under the Directive, "...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". This means that authorities need to be able to identify the subject matter of what is being protected clearly and precisely, and for others in the marketplace to ascertain the same. The subject matter of protection should also not be subjective, but one that can be observed objectively bu anyone.

Applying this to the question at hand, the Court noted that "...[t]he taste of a food product cannot, however, be pinned down with precision and objectivity", as it is not in a tangible or observable form (although one can experience it through the tasting of the goods). There are also many variables in the sensations and experience of any particular taste, which change over time and through consumption habits etc. It is also not possible, at least in the state of current scientific developments, to precisely and objectively identify the taste of a food product that distinguishes it from other food products (although this writer wonders if a deep analysis of the food's compounds would get us closer, even though this, again, changes with the ingredients, their age, storage methods and the like).

The Court therefore concluded that the taste of a food product therefore cannot be classified as a 'work' under the Directive, and would not be protected by copyright. Similarly, national legislation cannot protect the same subject matter in compliance with EU laws.

Due to the negative answer to the first question, the second question was not necessary to be dealt with.

The CJEU was clearly correct in their decision when it came to the taste of cheese, as it is something that one cannot easily pin down and therefore clearly protect. Once food chemistry and science develop to a point where we can isolate these differences, it might be possible to actually show what the taste of a given food item is, and potentially protect it under copyright. While waiting for this, we can eat our imitation Heksenkaas with reckless abandon.

01 November, 2018

Fixing Your Rights - The US Copyright Office Expands Right to Repair

The right to repair the devices, vehicles and other goods you own seems to be a given right when looked at on the face of it. After all, you bought the item, therefore you should be able to maintain it and try to prolong its lifecycle in your use; however, this is not exactly this simple. Some IP provisions hinder or even outright prevent the repair, modification or tinkering of those goods, particularly through copyright in proprietary systems to those goods. Many have fought over the right to repair, discussed on this blog before, but the line hasn't clearly been drawn in the sand as to what is okay and what isn't. In the light of this, the US Copyright Office was recently petitioned to rectify this wrong, and the right to repair movement took great strides in allowing this practices.

As a primer, under 17 USC 1201, a person is not allowed to "…circumvent a technological measure that effectively controls access to a work protected under this title". These types of measures include digital rights management software, or the encryption of software or underlying code in sophisticated machines or goods. More recent examples include the disabling of iPhones that detect third-party repairs or parts, and John Deere preventing tractors from being repaired under their user licences.

In a ruling released last week (including a very thorough background document here), the Copyright Office decided that owners of certain goods and vehicles could repair those devices without infringing on copyright.

Firstly, the Office allowed the 'jailbreaking' of computer programs (i.e. gaining access to the operating system to allow the installation and running of unauthorized software) relating to 'voice assistant devices like Amazon's Echo or Google's Home. The exemption already applied to smartphones, and is now extended to these types of devices.

Not all damage is fixable, even with extensive rights
The Office also focussed on computer programs that disabled the repair and diagnosis of land vehicles, specifically personal automobiles, commercial vehicles or mechanized agricultural vehicles (including any telematics systems, i.e. an in-vehicle computer). When the circumvention of the software is needed to repair, diagnose and lawfully modify the vehicles, the Office considers this circumvention to be lawful. They also expanded this to include the same for smartphones, home appliances such as fridges and HVAC or electrical systems. What needs to be noted is that 'maintenance' specifically only includes the "…servicing of the device or system in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that device or system".

Any repairs discussed above are also allowed to be done by third-party vendors, and not simply the owner of the device and/or vehicle. This is a huge step, as the third-party repair market is important to support those who do not have the technical know-how or inclination to do their own repairs.The ruling also does not exempt some circumventions, including any non-land vehicles (such as planes and boats), or devices that do not fit into the categories set out above. One can understand the hesitation to give a very broad exemption by the Copyright Office, as this could have unintended consequences or provide for uses that should not be allowed for. This distinction will undoubtedly change, but incremental changes can hinder the steps towards progress in the long run. The Office also denied the right to repair in relation to gaming consoles, which raised strong concerns of piracy if allowed.

The expansion of the right to repair devices and vehicles is an important part of protecting the environment and minimising unnecessary purchases of new devices or vehicles when the repair of the old one would have been prohibitively expensive. Many advocates for this right will rejoice at the ruling, while manufacturers will be less than thrilled losing control over the devices or vehicles once sold to the end-user. It remains to be seen whether the Office will expand these exemptions in the future, but seeing their inclination to do so, this writer thinks these rights will only be expanded on once new technologies become more commonplace and the need for their repair necessary.

Source: iFixit