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".
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Heksenkaas or not, cheese is amazing (Source) |
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.