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Can the taste of a cheese be protected by copyright?

By Chris J Holland, on 6 August 2018

The World awaits the outcome of the deliberations of the Court of Justice of the European Union (CJEU) on this very question. Can the taste of Heks’nkaas be protected by copyright? Advocate General Wathelet’s opinion in the Levola Hengelo (C310/17) case was recently reported here on the IPKAT blog. The text of his opinion is not yet available but the AG’s answer is clearly “no.”
You might think that the answer is obvious, but to get to his conclusion the AG examines some of the fundamentals of EU copyright law, such as:
What are the limits of what qualifies as a “work” in the Infosoc Directive (2001/29)?
Is there a “fixation” requirement to qualify for copyright protection in EU law (as there is in UK law)?
The Court of Justice will eventually make a ruling which may or may not concur with the AG’s opinion. Will the Court confirm AG Wathelet’s standing as the “big cheese” of copyright law? We will have to wait and see!

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