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In August 2018 we published a blog about a case before the Court of Justice of the European Union (the CJEU) concerning the possibility of copyright on taste of a food product. The special advisor of the CJEU, the Advocate General, advised that taste should not be protected by copyright.

The main reason for this opinion was that taste cannot be objectively identified as a copyright-protected work. To establish whether a work can be protected by copyright, the work should be clear, precise, intelligible, and durable. Taste, according to the Advocate General, does not have such characteristics for the copyright to be established.

The CJEU’s recently rendered final judgment is consistent with the Advocate General’s opinion.

The CJEU first determines whether taste of a food product is eligible for copyright protection under the applicable European copyright directive. The CJEU holds that taste of a food product can be protected by copyright, but only if two cumulative conditions are satisfied.

  1. The subject matter at stake “must be original in the sense that it is the author’s own intellectual creation” (par. 36 of the judgment). This condition aims to exclude subject matter for which protection is requested by one party, but it has been created by another.
  2. “The subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form” (par. 40 of the judgment). This condition seeks to provide clarity to all parties involved as to what precisely is protected, and rules out subjective elements in determining the copyright protection of a work.

In light of the second condition, the CJEU rules that taste cannot be sufficiently identified. According to the CJEU, the taste of a food product is identified based on taste sensations and experiences. These sensations and experiences are subjective and variable, as they depend on multiple factors such as age, food preferences, and consumption habits, as well as on the environment or context in which the product is consumed.

On the basis of these findings the CJEU concludes that the taste of a food product cannot be classified as a protectable work under the relevant European copyright directive.