the matter to the Court of Justice, in order to establish whether flavour can be considered a work under European Union law and, consequently, benefit from copyright protection. In its judgment of 13 November 2018 (C-310/17), the Court of Justice ruled that flavour does not fall within the concept of a work. This means that copyright protection cannot be granted to a taste. However, it is interesting to remark that the judgment does not constitute a conclusive and definitive ruling on this matter. In fact, the Court’s reasoning is particularly detailed and is based on the current state of the art, in terms of technical knowledge. Taste cannot be granted legal protection as a copyright work because it is impossible to identify precisely and objectively the content of the sensory experience, which is subjective and lacks objectively describable parameters: ‘The taste of a food product cannot, however, be pinned down with precision and objectivity. Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable since they depend, inter alia, on factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed’ (42). In the following paragraph, however, the judgment seems to leave room for possible changes in the future, since it clarifies that the objective identification of taste is not possible under the current state of technology: “Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind” (43). Therefore, the refusal of copyright protection shall not be understood in an absolute sense, but it is the consequence of the currently limited possibilities offered by the state of technology. This leaves open a question: if, in the future, science would allow flavours and tastes to be described objectively and precisely, would it be possible to extend the concept of a work to flavours and consequently acknowledge copyright protection? The judgment does not provide for a precise answer to this question. On the contrary, the argument of the subjectivity of sensory experience would remain and it would be difficult to overcome it even in case of technological advances. Pending possible technical developments, the question remains open for the future and makes the law of gastronomy, a very interesting field of experimentation in IP law, even more appealing and tasty. 216 PAOLA GELATO | STEFANO VERGANO
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