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Is there copyright in the taste of cheese?
An interesting question came before the Court of Justice of the European Union recently. which was called to decide as to whether there is copyright in the taste of cheese!
The case arose out of a provision the Dutch copyright law which, in contrast with other jurisdictions, defines copyright as “in general, every production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression”.
The phrase “whatever may be the mode or form of its expression” gave rise to claim that the taste of a spreadable dip containing cream cheese and fresh herbs, which was created by a Dutch retailer of vegetables and fresh produce in 2007, afforded copyright protection. The spreadable dip was named “Heksenkaas” and the owner was a company named Levola.
A rival Dutch producer named Smilde , produced and sold a similar product called ‘Witte Wievenkaas’.
Levola took the view that the production and sale of ‘Witte Wievenkaas’ infringed its copyright in the ‘taste’ of Heksenkaas and brought proceedings against Smilde before the Rechtbank Gelderland (Gelderland District Court, Netherlands).
The matter was referred for a preliminary ruling in Court of Justice , the primary question being as to whether : “EU law preclude the taste of a food product — as the author’s own intellectual creation — being granted copyright protection?”
The Court , following the provisions of the Berne Convention, held that copyright protects expressions, not ideas.
That principle, the Court held, requires that the subject-matter of protection has to be expressed in a manner which makes it identifiable with sufficient precision and objectivity. The Court concluded that the taste of a food product does not meet this requirement. It is too subjective and variable.
“Taste sensations and experiences” the Court held, “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”. Further, the Court pointed out, there is no technical or scientific way in which taste can be objectively identified with sufficient precision.
Consequently there can be no copyright in the taste of cheese much to the disappointment of cheese producers!