Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work

Forthcoming, Modern Law Review

16 Pages Posted: 5 Jun 2019

See all articles by Jani McCutcheon

Jani McCutcheon

The University of Western Australia Law School

Date Written: May 17, 2019

Abstract

This case note analyses the Court of Justice of the European Union’s judgement in Levola Hengelo BV v Smilde Foods BV, in which the CJEU ruled that the taste of food cannot be protected as a copyright work under EU copyright law. This note describes the issues in the primary dispute concerning the claim of copyright in the taste of cheese, the reasoning of Advocate General M. Wathelet who advised the CJEU to rule that taste cannot be protected as a copyright work, and the reasoning of the CJEU in its broad concurrence with the AG. It then critiques the CJEU’s judgement, which is surprisingly brief, considering the gravity of the question it was charged with addressing, which probes the boundaries of the copyright work under EU law. The note explains the many opportunities that were overlooked by the court in its brief judgement, attempts to unravel some of the more ambiguous aspects of the judgement, and assesses the merit and utility of the court’s primary pronouncement that a copyright work must be objectively identifiable.

Keywords: copyright, copyright work, expression, taste, food, Berne Convention

JEL Classification: K

Suggested Citation

McCutcheon, Jani, Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work (May 17, 2019). Forthcoming, Modern Law Review, Available at SSRN: https://ssrn.com/abstract=3389640

Jani McCutcheon (Contact Author)

The University of Western Australia Law School ( email )

M253
35 Stirling Highway
Crawley, Western Australia 6009
Australia

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