Food Taste 'Not Protected By Copyright,' EU Court Rules (bbc.com)

An anonymous reader quotes a report from the BBC: The taste of a food cannot be protected by copyright, the EU's highest legal authority has ruled in a case involving a Dutch cheese. The European Court of Justice said the taste of food was too "subjective and variable" for it to meet the requirements for copyright protection. The court was asked to rule in the case of a spreadable cream cheese and herb dip, Heksenkaas, produced by Levola. Levola argued another cheese, Witte Wievenkaas, infringed its copyright. The firm claimed that Heksenkaas was a work protected by copyright; it asked the Dutch courts to insist Smilde, the producers of Witte Wievenkaas, cease the production and sale of its cheese. The Court of Justice of the European Union was asked by Netherlands' court of appeal to rule on whether the taste of a food could be protected under the Copyright Directive. In order to quality for copyright, the taste of food must be capable of being classified as a "work" and has to meet two criteria: That it was an original intellectual creation; That there was an "expression" of that creation that makes it "identifiable with sufficient precision and objectivity."

The court found that "the taste of a food product cannot be identified with precision and objectivity." It said it was "identified essentially on the basis of taste sensations and experiences, which are subjective and variable," citing age, food preferences and consumption habits as examples which could influence the taster.

Comments

unlike music?

[AarghVark]

> citing age, food preferences and consumption habits as examples which could influence the taster.

So totally unlike music? Wonder what sort of precedent this interpretation may be setting.

Re:unlike music?

[pr0t0]

It's kind of interesting when you zoom out a little and think of copyright protections as they apply to the senses. The scent of a perfume has long been ruled as something not protected. Taste, as this rule shows, has also been long considered as not protected. Sound though, whether as intricate as a song, or as simple as the old "Sosumi" of early Macs, has always been protected. Almost everything visual can be copyright protected. The Nike "Swoosh" for example is a pretty simple shape, but good luck using a similar one in any context.

Subjectivity in taste and smell appear to be the largest contributor to the disparity, although I would argue it would be very difficult to prove sight and sound are any less subjective. The true experience of sensory input of someone other than yourself can never be fully understood.

Why is that a cheese, taking years to craft and refine into a product for which the producer is happy in terms of recipe and methodology, is any less protected than a simple song?

Not that I'm arguing for cheese protection or cheese rights. I just think it's an interesting thought-exercise that some forms of sensory input have more legal protections than others.

Re:unlike music?

[pr0t0]

Going a bit further, and to the absurd, can you imagine what it would be like if we treated foods the way we treat music?

No, you cannot give the cheese to someone else. You didn't buy the cheese, you just bought a license to eat it. Sorry, placing it on a cracker does not constitute significant alteration under fair use. If you want to serve the cheese to your patrons, you'll have to pay a licensing fee similar to ASCAP, and the person who came up with the recipe will also need to be paid royalties. Oh, so you did share the cheese? We will file suit, and since we cannot determine which particular cheese you shared, the damages we seek will be based on all the food in your house.

The problem isn't precision.

[hey!]

I bet a food chemist can do a pretty good job of telling you why a food tastes the way it does. Besides the basic taste components of sweet, salty, bitter, sour, and umami, the perceived flavor of food is primarily carried by volatile chemicals that can be isolated by chromatography. The remaining psychophysical element is texture, which can be mechanically analyzed.

Sure, there may be subtle elements that are beyond the state of science at present to characterize, but insofar as elements that can be precisely characterized and are unique, there is just as much fundamental justification for copyrighting them as there is for copyrighting story or melody elements.

The real problem is that we don't customarily copyrighted tastes. Doing so would introduce a change in the way people expect things to work we're not ready for that change.

Property is a social construct if anything is. If you were the last person on Earth, it would be meaningless to worry whether it was morally right to break into a house or circumvent the DRM on a book. When politicians created the notion of "intellectual property" around two to three centuries ago, they were intentionally engineering a change in their society. That change isn't as well integrated in our culture as personal possession or real estate, which have been part of our culture since preliterate times.