Levola Hengelo BV v Smilde Foods BV.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2018:618
• Docket Number: C-310/17
• Date: 25 July 2018
• Procedure Type: Cuestión prejudicial - sobreseimiento

Provisional text

OPINION OF ADVOCATE GENERAL

WATHELET

delivered on 25 July 2018 (1)

Case C‑310/17

Levola Hengelo BV

v

Smilde Foods BV

(Request for a preliminary ruling from the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden, Netherlands))

(Reference for a preliminary ruling — Directive 2001/29/EC — Copyright and related rights — Concept of a ‘work’ — Taste of a food product)

1. This request for a preliminary ruling of 23 May 2017, lodged at the Court Registry on 29 May 2017 by the Gerechtshof Arnhem-Leeuwarden (Court of Appeal, Arnhem-Leeuwarden, Netherlands), concerns the interpretation of Articles 2 to 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. (2)

2. The request has been made in proceedings between Levola Hengelo BV (‘Levola’) and Smilde Foods BV (‘Smilde’), two undertakings that produce foodstuffs, concerning the alleged infringement by Smilde of Levola’s copyright relating to the taste of a spreadable dip with cream cheese and fresh herbs, known as ‘Heksenkaas’ or ‘Heks’nkaas’ (‘Heksenkaas’). (3)

3. The referring court considers that, in order to determine the case before it, it is necessary for it to ascertain, inter alia, whether EU law, and in particular Directive 2001/29, precludes the copyright protection of the taste of a food product.

I. Legal framework

A. International law

1. The Berne Convention

4. Article 2 of the Berne Convention for the Protection of Literary and Artistic Works, signed in Berne on 9 September 1886 (Paris Act of 24 July 1971), in the version arising from the amendment of 28 September 1979 (‘the Berne Convention’), provides that:

‘(1) The expression “literary and artistic works” shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.

(2) It shall, however, be a matter for legislation in the countries of the Union to prescribe that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form.

…

(5) Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

(6) The works mentioned in this Article shall enjoy protection in all countries of the Union. This protection shall operate for the benefit of the author and his successors in title.

...’

5. Under Article 9(1) of the Berne Convention:

‘Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.’

2. WIPO Copyright Treaty

6. On 20 December 1996, the World Intellectual Property Organisation (WIPO) adopted, in Geneva, the WIPO Copyright Treaty (‘the WIPO Copyright Treaty’), which entered into force on 6 March 2002 and which was approved on behalf of the European Community by Decision 2000/278/EC. (4)

7. Under Article 1(4) of the WIPO Copyright Treaty, entitled ‘Relation to the Berne Convention’:

‘Contracting Parties shall comply with Articles 1 to 21 and the Appendix of the Berne Convention.’

8. Article 2 of the WIPO Copyright Treaty, entitled ‘Scope of Copyright Protection’, provides:

‘Copyright protection extends to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’

9. Article 4 of the WIPO Copyright Treaty, entitled ‘Computer Programs’ provides:

‘Computer programs are protected as literary works within the meaning of Article 2 of the Berne Convention. Such protection applies to computer programs, whatever may be the mode or form of their expression.’

10. Under Article 5 of the WIPO Copyright Treaty, entitled ‘Compilations of Data (Databases)’:

‘Compilations of data or other material, in any form, which by reason of the selection or arrangement of their contents constitute intellectual creations, are protected as such. This protection does not extend to the data or the material itself and is without prejudice to any copyright subsisting in the data or material contained in the compilation.’

3. The WTO Agreement and the TRIPS Agreement

11. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of 15 April 1994 (OJ 1994 L 336, p. 214, ‘the TRIPS Agreement’), constituting Annex 1 C to the Agreement Establishing the World Trade Organisation (WTO) (OJ 1994 L 336, p. 3, ‘the WTO Agreement’), was approved by Council Decision 94/800/EC of 22 December 1994, concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994). (5)

12. Article 9 of the TRIPS Agreement, entitled ‘Relation to the Berne Convention’, states:

‘1. Members [of the WTO] shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto ...

2. Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.’

13. Article 10 of the TRIPS Agreement, entitled ‘Computer Programs and Compilations of Data’, provides:

‘1. Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).

2. Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.’

B. EU law

14. Article 2 of Directive 2001/29, entitled ‘Reproduction right’, provides:

‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part:

(a) for authors, of their works;

...’

15. Article 3 of Directive 2001/29, entitled ‘Right of communication to the public of works and right of making available to the public other subject matter’, provides:

‘1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

...’

16. Article 4 of Directive 2001/29, entitled ‘Distribution right’, provides:

‘1. Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise.

...’

C. National law

17. Article 1 of the Auteurswet (Netherlands Copyright Law, ‘the Copyright Law’) provides:

‘Copyright is the exclusive right of the author of a literary, scientific or artistic work or his successors in title, to communicate that work to the public and to reproduce it, subject to the limitations laid down by law.’

18. Article 10 of the Copyright Law is worded as follows:

‘1. For the purposes of this Act, literary, scientific or artistic works shall mean:

1. books, pamphlets, newspapers, periodicals and all other writings;

2. dramatic or dramatico-musical works;

3. lectures and addresses;

4. choreographic works and entertainments in dumb show;

5. musical compositions with or without words;

6. works of drawing, painting, architecture, sculpture, engraving and lithography;

7. maps;

8. plans, sketches and three-dimensional works relative to architecture, geography, topography, or other sciences;

9. photographic works;

10. cinematographic works;

11. works of applied art and industrial designs;

12. computer programs and preparatory materials;

and, in general, every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.

…’

II. The dispute in the main proceedings and the questions referred for a preliminary ruling

19. Heksenkaas is a spreadable dip with cream cheese and fresh herbs. It was created in 2007 by a Dutch retailer of vegetables and fresh produce. By an agreement concluded in 2011 and in exchange for remuneration linked to the turnover to be achieved by its sale, its creator transferred to Levola his intellectual property rights in that product.

20. A patent for the method of manufacturing Heksenkaas was granted on 10 July 2012 and the word mark ‘Heksenkaas’ was filed mid-2010.

21. Since January 2014, Smilde has been manufacturing a product known as ‘Witte Wievenkaas’ for a supermarket chain in the Netherlands.

22. Taking the view that the production and sale of Witte Wievenkaas infringed its copyright in the ‘taste’ of Heksenkaas, Levola brought proceedings against Smilde before the Rechtbank Gelderland (Gelderland District Court, Netherlands). Levola defined copyright in a taste as being ‘the overall impression on the sense of taste caused by the...