Being a cheese lover, the smellier the better quite frankly, an article by the ipKat caught my eye this morning.  It took a look at the increasing number of cases passing through various courts in Europe which centre on whether IP protection – and in particular copyright – is available to less conventional ‘works’ of a more sensory nature.  Those with a knowledge of copyright cases will know that for many years parties have been battling it out in the courts asserting (or objecting to the assertion) that copyright protection can and should protect smells, particularly perfumes (see Kecofa -v-  Lancome) and culinary creations (see almost any famous chef with a Michelin Star wishing to protect his/her most precious dish).
 
The CJEU is currently being asked for guidance on several questions in the case of Heks’nkaas – a case concerning the assertion of copyright in the taste and smell of a particular cheese – namely: 

  1. Whether EU law allows for copyright protection of more sensory works; and 
  2. If so, what requirements must be met in order to determine subsistence of copyright protection.

In answering these questions, the CJEU will need to consider its own previous rulings on this subject matter where it previously held that copyright protection should arise any time a work is ‘its author’s own original intellectual creation’. 
 
Surprisingly to those of us in the UK, the European legal world is divided on such matters it would seem.   In the UK under the Copyright Designs and Patents Act 1988,  we have quite a clear, exhaustive list of which ‘works’ are protected by copyright and ‘sensory’ works are not included in this list.    This has often proved challenging for less conventional works in that it is not always possible to crow-bar your way into a suitable category of protected works.  This has resulted in the UK courts denying copyright protection for several very famous ‘creations’ such as the assembly of multiple items to create a scene (the Oasis Album cover case) and the Stormtrooper helmet whilst the US courts upheld copyright protection in the Batmobile.  The Berne Convention, in contrast, adopts an open-ended definition of our own ‘literary and artistic works’ by not defining the term ‘work’ and choosing instead to clarify that the term ‘expression’ (which filters through discussions on copyright works) shall include ‘every production in the literary, scientific and artistic domain’ regardless of the mode or form of such expression.  It is clear from all legislation, that whether looking at ‘works’ or ‘expression’, both must be original in the sense that they possess creativity. 
 
The importance of this Heks’nkaas case therefore, is that the CJEU has the potential to acknowledge the possibility that EU law encompasses an open-ended (albeit not unlimited) subject matter categorisation that may include sensory copyright.  Our own UK judges are taking notice of these European cases with Mr Justice Richard Arnold accepting in SAS Institute Inc. -v- World Programming Limited, the fact that a particular creative work may not feature within the commonly recognisable categories of work protected by copyright as listed in section 1(1)(a) of the CDPA 1988, may not necessarily be a fatal objection to a copyright claim.
 
In these legal times of diminishing trade mark protection for sensory signs (particularly smells), we shall await the outcome of this cheesy case with interest, not least as it will determine the extent to which copyright protection can reach. 

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