We know that music and films and paintings and books are all protected by copyright. But what about the unique taste of an artisan cheese?
The EU Court of Justice issued a decision earlier this week where it confirmed that flavours and tastes are too subjective and imprecise to benefit from copyright protection.
Copyright protection requires the thing being protected to be a “work”. We normally think of these in terms of literary, musical, or artistic outputs. But it needn’t be limited to that. In a case before the Dutch courts, it was argued that the taste of Heksenkaas cheese was so unique that it should be protected by copyright in the same way against a supermarket taste-a-like.
The court, however, said that the taste of a food product depends subjectively on the person eating it: their age, their food preferences and their consumption habits, as well as the environment where they are eating it(!). Also, the fact that you can’t document a taste (in the way that you can store the text of a book or the sheet music for a song) makes it hard to enable people to know what’s protected.
This blurs the line with trade mark law, and opens up more questions than it answers: a play can clearly enjoy copyright protection, but it’s hard to document exactly how a perfomance plays out on a stage. How far does this requirement to record the “work” go?
A Justin Bieber song enjoys copyright protection despite the spectrum of critical and popular opinions attached to it. The Dress is still protected by design rights (and maybe copyright too) whether you see it as blue or gold or any other colour. Why does subjective appreciation matter?
For most organisations, this is just an academic decision in a niche area of copyright law. But today’s niche cases have a funny way of filtering through to tomorrow’s bigger issues.