Tuesday 13 November 2018

No copyright in taste: Outbreak of common sense at Court of Justice

The Court of Justice has today handed down its judgement in Levola Hengelo [2018] EUECJ C-310/17 (13 November 2018), holding that the taste of cheese spread is not a copyright work. Why should it even have had to consider the matter? In UK copyright law it would surely have been disposed of very quickly, as taste does not fall into any of the categories of copyright work set out in the 1988 Act. But the UK is unusual among EU Member States in having a "closed list" approach to copyright works - more often, in the civil law world, the scope of copyright protection is not so constrained, which is how perfumes have achieved copyright protection in come countries. The Court of Justice has previously threatened (in Case C-393/09 Bezpečnostní softwarová asociace –Svaz softwarové ochrany v Ministerstvo kultury ("BSA")) to make the open approach EU-wide, so that whatever an individual might create will receive protection, but the present judgment neatly sidesteps that issue (or perhaps more accurately does not have to consider it) - of which more later.

The concept of a "work" is used in EU copyright legislation (in particular in the Information Society directive, 2001/29), but not defined. This invites an activist court to make up its own definition: "Accordingly, in view of the need for a uniform application of EU law and the principle of equality, that concept must normally be given an autonomous and uniform interpretation throughout the European Union (see, to that effect, judgments of 16 July 2009, Infopaq International, C-5/08, EU:C:2009:465, paragraphs 27 and 28, and of 3 September 2014, Deckmyn and Vrijheidsfonds, C-201/13, EU:C:2014:2132, paragraphs14 and 15)."

In the two cases it cites there, the Court decided that copyright works must be their authors' own intellectual creation, thus at a stroke making copyright much narrower than it had been - in the UK, at least. Not a bad outcome, to my mind, although the reasoning might not convince you. Here, the Court could have interpreted the word "work" widely: the only guidance it had was from Berne, which extends copyright protection to authors' literary and artistic works, and the TRIPS agreement and the WIPO copyright treaty, which tell us that expression not ideas is what copyright protects (which is IMHO another way of saying that copyright protects works).

However, very sensibly, the Court was not about to bring tastes within the scope of copyright protection. It told us that there are two cumulative conditions for something to be considered a "work":
36      First, the subject matter concerned must be original in the sense that it is the author’s own intellectual creation (judgment of 4 October 2011, Football Association Premier League and Others, C-403/08 and C-429/08, EU:C:2011:631, paragraph 97 and the case-law cited).
37      Secondly, only something which is the expression of the author’s own intellectual creation may be classified as a ‘work’ within the meaning of Directive 2001/29 (see, to that effect, judgments of 16 July 2009, Infopaq International, C-5/08, EU:C:2009:465, paragraph 39, and of 4 October 2011, Football Association Premier League and Others, C-403/08 and C-429/08, EU:C:2011:631, paragraph 159). [Emphasis added.]
The idea/expression dichotomy, which dictates that only expression can be protected by copyright, means that a work must be "expressed in a manner which makes it identifiable with sufficient precision and objectivity" - language adopted for the present case by Advocate General Wathelet from the Court of Justice's landmark decision in Sieckmann. The Court refrained from mentioning that case by name, which (as it is of course a trade mark case - although it was smell trade mark, so there is a connection) is a blessing - it gives us one less thing to worry about. Conceptually it's a sound approach, I think, but the idea that it rests on a precedent from another area of law is a bit uncomfortable.

Taste, like olfactory trade marks, cannot be pinned down with sufficient precision and objectivity and therefore cannot be a copyright work. Thank goodness. And thus the Court avoids the issue of closed and open lists of copyright works. It didn't even have to mention BSA, which remains a threat to our approach to copyright but not one that will allow cheese flavours to enter the copyright system.

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