Crucially, the Court held that for there to be a “work” as referred to in the InfoSoc Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity, even though that expression is not necessarily in permanent form.57 Even if the taste of a cheese might meet the originality criterion (arguably, the recipe developer made creative choices), it fails the second criterion. The Court observed that a taste cannot be pinned down with precision and objectivity, unlike a literary or musical work, which has a concrete expression in words or notes.58 By its nature, taste is a subjective, variable sensation, the processing of which occurs differently in each person’s brain. Although people are capable of discerning a scent, they are not adept at describing it or recognising it from a description.59 In the words of the judgment, “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.”60 The Court also noted that there are no technical means available to precisely identify or record a taste in the way one can fix a song in a recording or a painting on a canvas.61 Interestingly, the Court’s language here echoed Sieckmann criteria, importing trademark law’s insistence on precision and objectivity into the definition of a copyright work.62 Thus, lacking any sufficiently concrete expression, the taste of a food is not a “work” under EU copyright law and does not enjoy copyright protection.63 By emphasising “expression” as a distinct component of the EU concept of “work”, the Levola Hengelo ruling confirmed that pure sensory experiences like taste (and by extension, smell) are beyond the scope of copyright.64 Notably, the CJEU grounded its reasoning in part on international copyright norms: it referenced Article 2(1) of the Berne Convention (which implies a work should 57 Levola Hengelo, para. 40. 58 Eleonora Rosati, ‘The Levola Hengelo CJEU Decision: Ambiguities, Uncertainties ... and More Questions’ (The IPKat, 11 2018) <https://ipkitten.blogspot.com/2018/11/the-levola-hengelo-cjeu-decision.html> accessed 28 April 2025. 59 Lopez (n 39) 150. 60 Levola Hengelo, para. 42. 61 Rosati (n 58). 62 Derclaye lists several reasons against using trademark precedents in copyright law: A sign is not a work, the purposes of the two laws are different, as well as the international conventions applying to them, and copyright works do not need to be registered. Derclaye (n 51) 82. 63 Pila (n 54) 70–71; Synodinou (n 47) 16. 64 Synodinou (n 47) 11. 282 MATIJA DAMJAN
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