Yesterday Jemima Kelly reported that a second pretender to the throne of Satoshi had emerged* and today we have the Oxford University Press blog asking the headline question:
Copyright is an intellectual property right that vests in original works. We know that works like novels, paintings, photographs, sculptures, and songs are examples of what copyright law protects.....MORE
But how far can copyright protection go? Can copyright protect, say, a perfume or the taste of a food product?
Unlike more traditional works, which are perceived through senses like sight and hearing – that is, through mechanical senses – perfumes and tastes can be only perceived through chemical senses, such as smell and taste. This makes interpretation of what one is trying to protect potentially complicated.
In the past, courts in France and the Netherlands were indeed asked whether a perfume could be protected by copyright. While the French Supreme Court answered Non! on consideration that the smell of a perfume could not be defined objectively, the Dutch Supreme Court said Ja! and considered that a smell could also be protected by copyright. This in practice has meant that, while in France, perfumers could not rely on the additional protection offered by copyright for the life of the perfumer and 70 years after their death, in the Netherlands perfumers found themselves able to prevent copying of their fragrances by using copyright as a weapon.
Recently, in the Netherlands, the producer of a spreadable cheese, Heks’nkaas, sued a competitor over the marketing of a taste-alike cheese, claiming that – by copying the taste of Heks’nkaas – the defendant had infringed the copyright.
The court in the Netherlands that had to decide the action was unsure whether the taste of a cheese could be protected by copyright, so it asked the Court of Justice of the European Union to clarify this point. The court said that, in order to be considered a work and thus be eligible for copyright protection, the object at issue, the cheese, must be expressed in a manner which makes it identifiable with sufficient precision and objectivity. This requirement is meant to allow both competent authorities (e.g. courts) and interested third parties, (e.g. competitors) to identify – clearly and precisely – the object in respect of which protection is claimed.
It’s very difficult to identify the taste of a food product with precision and objectivity. This makes it different from a literary, pictorial, cinematographic, or musical work, which is a precise and objective form of expression....
*Another Satoshi is in the building and Craig Wright is... thrilled
