Should Taste Be Copyrightable? The Court of Justice of the European Union Thinks Not
A few months ago, the Court of Justice of the European Union ruled that taste cannot be copyrighted. The case arose between two competing cheese dip makers: Levola and Smilde. Levola, a Dutch company, owns the intellectual property rights to ‘Heskenkaas,’ a spreadable cream cheese and fresh herbs dip. Levola alleged that Smilde, another Dutch company, infringed its copyright on the taste of its dip because Smilde manufactures ‘Witte Wievenkaas,’ a rival cheese dip consisting of many of the same ingredients. Levola argued that the taste of its ‘Heksenkaas’ cheese dip is protected by copyright and Smilde’s dip is a reproduction of it. Upon hearing the case, a Regional Court of Appeal in the Netherlands asked the Court of Justice to weigh in on whether a food product’s taste is protected under the European Union’s Copyright Directive.
The Court of Justice began its opinion by stating that a food product’s taste “must be capable of being classified as a ‘work’ within the meaning of the Directive” to have copyright protection under it. To be classified as a ‘work,’ first, the subject matter at issue must be an original intellectual creation, and second, “there must be an ‘expression’ of that original intellectual creation.” Copyright protection may not be granted to ideas, procedures, methods of operation or mathematical concepts. Furthermore, the subject matter “must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.”
After explaining how a product may be classified as a ‘work’ under the Copyright Directive, the Court of Justice went on to find that the taste of a food product could not be classified as such and thus is not eligible for copyright protection. To support its finding, the court argued that “the taste of a food product cannot be identified with precision and objectivity.” The Court distinguished ‘taste’ from literary, musical, cinematographic, and pictorial works by arguing that those have precise and objective expressions whereas the taste of a specific food is subjective and variable since it is identified on the basis of taste sensations and experiences. The Court found that taste depends on factors particular to the person tasting the product and included among them: “age, food preferences and consumption habits, […] the environment or context in which the product is consumed.” It further reasoned that current scientific developments do not allow for a technical means by which to determine a precise and objective identification of a food product’s taste that would “enable it to be distinguished from the taste of other products of the same kind.”
Thoughts on the EU Court of Justice Ruling
The Court of Justice seemed to heavily premise its holding that taste is not copyrightable on the idea that the taste of a food product cannot be objectively identified, as distinguished from literary, musical, cinematographic, and pictorial works which have precise and objective expression. Taste is generally perceived as more subjective because it is a sensation produced by chemical reactions between the product consumed and our taste receptor cells, and genes can play a role in how one perceives the taste of a food product, explaining why some people find that cilantro tastes like soap while others find that it tastes fresh and citrusy. However, in the case of cheeses, many people can arguably identify the distinctive taste of cheeses, particularly those made by limited producers, such as Boursin, Jarlsberg, and Humboldt Fog, because they consistently taste the same. These types of cheeses, as distinguished from Brie, Mozzarella, Blue Cheese, and many others that are made under some specific regulations but not made by a very limited number of producers, seem to have something precise and objective about their tastes or ‘expressions.’ This suggests that maybe some tastes are ‘works’ within the meaning of the Copyright Directive and thus deserving of its protection, and the challenge for those seeking copyright protection over a taste is that they must effectively describe those tastes’ ‘expressions’. However, for courts, at least for now, the task of determining which tastes deserve copyright protection would likely have to be done on a case-by-case basis, arguably making it a much too difficult in practice.
Jackie Zachariadis is a J.D. candidate, 2020, at NYU School of Law.