BREAKING: AG Wathelet advises CJEU to rule that the taste of a cheese CANNOT be protected by copyright

Heks'nkaas (L) and competing and
allegedly infringing product Witte WievenKaas (R)

Finally: the time has (almost) come to know the answer to one of the most pressing IP questions: is there, or not, copyright in the taste of a spreadable Dutch cheese known as Heks'nkaas?

This morning Advocate General (AG) Wathelet issued his Opinion [not yet available on the Curia website], in which he advised the Court of Justice of the European Union (CJEU) to rule that no copyright protection could vest in the taste of a cheese.

Despite its seemingly cheesy subject-matter, this case is potentially a very important one, as I discussed more at length here and here. 

Yes, the referral in Levola Hengelo, C-310/17 [the questions are available here] is asking the CJEU to clarify whether EU law precludes the taste of a food product — as its author's own intellectual creation — being granted copyright protection.

However, the case goes well beyond the realm of cheese. In fact, the Dutch court is also seeking clarification on a number of core copyright issues that, so far, have not been really addressed (if not incidentally and rather ambiguously) by the CJEU. 

In particular, the Dutch judge has asked the Luxembourg judges to weigh in on what qualifies as a protectable work, under Article 2(1) of the Berne Convention: 

• What do we mean when we say copyright 'work'? 
• How far can this notion stretch? 
• Is the notion of work affected by the (possible) instability of a food product and/or the subjective nature of the taste experience? 
• Also, does the system of exclusive rights and restrictions, as governed by Articles 2 to 5 of the InfoSoc Directive, preclude copyright protection of the taste of a food product?

Also the Kats are pondering the question ...
but a sample tasting
- accompanied by some salami - is required

According the press release, in today's Opinion AG Wathelet reasoned that: (1) the notion of 'work' only encompasses subject-matter that can be perceived through sight or hearing, but not other senses; and (2) subject-matter must be perceived with precision, stability and objectivity, and this would not be the case of the taste of a food product.

It follows that the creator of a food product cannot claim copyright protection in the taste per se, and - as such - does not enjoy any right to prevent unauthorised exploitation thereof.

A more detailed analysis will be provided once the text of the Opinion has been made available. Stay tuned!

[UPDATE at 12:30 pm BST: the text of the Opinion is now available here]