The case of Heks’nkaas is making its way to the Court of Justice of the European Union (CJEU) for guidance on whether EU law allows copyright protection in taste (in this case, the taste of a cheese).
The CJEU has been asked to determine the following issues:
- Whether EU law allows copyright protection in taste
- If so, what requirements must be met in order to determine subsistence of copyright protection?
This case promises to be a very interesting and important one, if the CJEU deems it admissible.
The reason is essentially that the CJEU will need to clarify at last what is meant by ‘work’, thus revisiting and elaborating further on its earlier case law.
In earlier cases the CJEU held that under EU law copyright protection should arise any time a work is ‘its authorÂs own intellectual creation’, i.e. a work is sufficiently original. In FAPL, for instance, the CJEU had to determine whether football matches as such can be eligible for copyright protection. The court denied that that would be the case of football matches because they “cannot be classified as works. To be so classified, the subject-matter concerned would have to be original in the sense that it is its authorÂs own intellectual creation.” [paras 96 and 97]
Why this reference is important for the UK
An additional profile of relevance of this new CJEU case is that there is the potential for the CJEU to hold – particularly, but not necessarily only, if it acknowledges the possibility of sensory copyright – that EU law envisages an open-ended subject-matter categorisation.
While this is already the case of continental copyright traditions (relevant statutes do not limit the types of works in which copyright can subsist), the same is not true for the UK.
The Copyright, Designs and Patents Act 1988, provides a closed list of eligible copyright subject-matter. This has proved challenging for less conventional works, in the sense that not always a suitable category can be identified. This has resulted in denying copyright protection in the Stormtrooper helmet (Lucasfilm).
The Heks’nkaas case is one to watch out for, not only will it determine to what extent copyright protection can be stretched, but also what system of copyright categories the CJEU envisages.