Levola Hengelo BV v Smilde Foods BV: The Hard Work of Defining a Copyright Work
| Date | 01 September 2019 |
| Published date | 01 September 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12463 |
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Modern Law Review
DOI: 10.1111/1468-2230.12463
Levola Hengelo BV vSmilde Foods BV: The Hard Work
of Defining a Copyright Work
Jani McCutcheon∗
The Court of Justice of the European Union’s judgement in Levola Hengelo BV vSmilde Foods
BV ruled that the taste of food cannot be protected as a copyright work under EU copyright
law. This note descr ibes 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, and
the reasoning of the CJEU in its broad concurrence with the AG. It then critiques the CJEU’s
judgement, which is surprisingly br ief, considering the gravity of the question, 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 br ief 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.
INTRODUCTION
In Levola Hengelo BV vSmilde Foods BV1(Levola), the Court of Justice of the
European Union (CJEU) was asked to make a preliminar y ruling on several
questions prompted by the dispute, which revolved around the issue of whether
the taste of a cheese product could be considered a copyright work under EU
law. The first question was whether Directive 2001/29/EC of the European
Parliament and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society (the InfoSoc
Directive)2precludes the taste of food from being protected as a copyright
work. However, additional questions required the court to engage with more
fundamental inquiries about the very meaning of the copyright ‘work’. As a
discrete and yet curiously under-examined phenomenon, the copyright work
is the fundamental cornerstone of the copyright system, and yet it remains
elusive and undefined in copyright instruments. Understandably, this creates a
significant thirst for any judicial clarification on the point. On 25 July 2018,
Advocate General M. Wathelet (AG) advised the CJEU to rule that taste could
∗Associate Professor, University of Western Australia Law School.
1 Case 310/17 Levola Hengelo BV vSmilde Foods BV ECLI:EU:C:2018:618 (Levola,CJEU)at
http://curia.europa.eu/juris/document/document.jsf?text=&docid=207682&pageIndex=0&
doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1189587. The Opinion of Advo-
cate General M. Melchior Wathelet (Levola, AG) is available at http://curia.europa.eu/juris/
document/document.jsf?text=&docid=204426&pageIndex=0&doclang=FR&mode=lst&dir=
&occ=first&part=1&cid=775332 (both last accessed 19 June 2019).
2 Directive 2001/29/EC on The Harmonisation Of Certain Aspects Of Copyright And Related
Rights In The Information Society [2001] OJ L166/10 (InfoSoc Directive).
C2019 The Author. The Modern Law Review C2019The Moder n Law ReviewLimited. (2019)82(5) MLR 936–950
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