CJEU poised to rule on whether copyright can apply to cheese.

The question of whether intellectual property protection should be available for less conventional goods such as perfume and culinary creations has been disputed for some time. Although supported by many, those in favour of so-called “sensory copyright” have struggled in the courts, with both the French Supreme Court and a Dutch Court having previously dismissed the idea that copyright can protect the scent of a perfume, or subsist in the taste of Heks’nkaas (a Dutch cheese).

However, in the latter case, things appear to be far from over. In a move that will please many and provide much-needed clarity on this issue, the Arnhem-Leeuwarden Court of Appeal has issued an interim decision and confirmed that guidance from the Court of Justice of the European Union (CJEU) is needed to determine the matter. They have requested a ruling from the CJEU as to whether EU law allows copyright protection in taste and, if so, what requirements must be met to determine subsistence of copyright protection.

The decision will be interesting because the CJEU will finally be required to clarify what is meant by copyright ‘work’, whilst revisiting and elaborating on previous case law which held that copyright protection should arise any time a work is sufficiently original.

Guidance on what constitutes a copyright ‘work’ is found outside of EU law, in Article 2 of the Berne Convention. The Convention favours an open-ended definition of ‘literary and artistic works’ without defining them, although it does say that these works “shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression”.

The potential for the CJEU to hold that EU law can provide copyright protection outside of strictly categorised headings, favouring instead an open-ended form of subject matter categorisation, conflicts with current UK legislation. The UK Copyright, Designs and Patents Act 1988 envisages a closed list of works eligible for copyright protection, which has proved challenging for less conventional works which can find themselves falling between categories and ultimately being unprotected.

The decision of the CJEU will be relevant to the UK regardless of Brexit since the Heks'nkaas case is expected to be decided when the UK will be still part of the EU.The UK Government have stated in its White Paper accompanying the Great Repeal Bill that it will provide for historic CJEU case law to be given the same binding status in UK courts as decisions of Supreme Court, meaning that this decision will survive as part of UK law.

Watch this space for updates as this case progresses.

For more information on Intellectual Property law, please contact Nick de Figueiredo.