know-how, likening perfumers to craftsmen rather than authors.69 The French court stressed that copyright protects only the expression of an idea in a tangible form, and a fragrance’s aroma in the air, being intangible and evanescent, could not be placed under the umbrella of literary and artistic works.70 These opposing national outcomes created an uncertain landscape in Europe. In the Netherlands, at least one lower court later extended similar reasoning to the taste of a product, which set the stage for the Levola Hengelo dispute when a Dutch cheese spread maker tried to enforce rights in a taste. The CJEU in Levola Hengelo effectively harmonised the law at the EU level, rendering the Dutch pro-protection view obsolete in light of EU harmonised criteria. It is now clear that no EU member state can extend copyright to smells or tastes, because doing so would conflict with the uniform standard that a protectable work must have an identifiable expression.71 The Levola Hengelo decision has settled any lingering doubts by firmly stating that the essence of copyright – a work – must be something that can be communicated or identified with clarity, which an individual’s taste perception cannot.72 Accordingly, there is no category for “olfactory art” or “gastronomic work” under EU copyright law. This result avoids complex issues that would arise when applying other copyright rules to taste and smell, e.g., what constitutes a communication to the public of a smell and how one could quote a taste? Proving an infringement would also be problematic if the plaintiff had to prove that two products taste or smell the same.73 If gas chromatography indicates that two scents have similar molecular structures, this does not yet prove that there is a substantial similarity between the two competing works, since similarity should be determined by normal human perception rather than by mechanical analysis.74 3.3. United States’ Approach The US Copyright Act explicitly requires a work to be fixed in a tangible medium of expression.75 A work is only protected if it can be perceived, 69 ibid; Silva (n 52) 147. 70 Koelman (n 67). 71 Rosati (n 58). 72 ibid. 73 Derclaye (n 51) 82. 74 Carl Christian von Scholten Illum, ‘On Copyright Protection of Smell, Taste and Texture’ (2012) 34 European Intellectual Property Review 704, 708. 75 Lopez notes that the Act enumerates eight categories of copyrightable subject matter, none of which explicitly encompasses scent or flavour. Congress clearly intended the list to be illustrative, yet, for practical purposes, it is often treated as exhaustive. Lopez (n 39) 357–358; Fabris (n 2) 706. 284 MATIJA DAMJAN
RkJQdWJsaXNoZXIy MTE4NzM5Nw==