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
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: Suggested Citation