No copyright in taste of cheese

The long awaited judgment of the European Court of Justice published yesterday confirms that there is no protectable copyright in the taste of cheese. This is not unexpected as the publication of the Advocate General’s opinion in July which precedes all court judgments did not think that taste could be protected by copyright either. Back then the Advocate General was of the opinion that anything that cannot be perceived through hearing or sight and is not identifiable with sufficient precision and objectivity cannot be a work for the purposes of copyright. Although ‘work’ is not defined in EU legislation the European Court agreed with the Advocate General and resisted extending protectable works to ‘taste’.

The Court expanded further on how they reached their decision with the following:

“………in order to be protected by copyright the taste of a food product must be capable of being classified as a ‘work’.  Classification as a ‘work’ requires, first of all, that the subject matter concerned is an original intellectual creation. Secondly, there must be an ‘expression’ of that original intellectual creation. In accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights, which was adopted in the framework of the World Trade Organisation and to which the EU has acceded, and with the WIPO Copyright Treaty, to which the EU is a party, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such. Accordingly, for there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.”

This decision seems sensible and should not be a great blow to cheese producers who are able to protect their products through trade marks and in some cases Geographical Indicators.

For more information on Geographical Indicators  see “What will happen to Cornish pasties post Brexit.”

Written by Margaret Briffa