Food Taste 'Not Protected By Copyright,' EU Court Rules (bbc.com) 107
An anonymous reader quotes a report from the BBC: The taste of a food cannot be protected by copyright, the EU's highest legal authority has ruled in a case involving a Dutch cheese. The European Court of Justice said the taste of food was too "subjective and variable" for it to meet the requirements for copyright protection. The court was asked to rule in the case of a spreadable cream cheese and herb dip, Heksenkaas, produced by Levola. Levola argued another cheese, Witte Wievenkaas, infringed its copyright. The firm claimed that Heksenkaas was a work protected by copyright; it asked the Dutch courts to insist Smilde, the producers of Witte Wievenkaas, cease the production and sale of its cheese. The Court of Justice of the European Union was asked by Netherlands' court of appeal to rule on whether the taste of a food could be protected under the Copyright Directive. In order to quality for copyright, the taste of food must be capable of being classified as a "work" and has to meet two criteria: That it was an original intellectual creation; That there was an "expression" of that creation that makes it "identifiable with sufficient precision and objectivity."
The court found that "the taste of a food product cannot be identified with precision and objectivity." It said it was "identified essentially on the basis of taste sensations and experiences, which are subjective and variable," citing age, food preferences and consumption habits as examples which could influence the taster.
The court found that "the taste of a food product cannot be identified with precision and objectivity." It said it was "identified essentially on the basis of taste sensations and experiences, which are subjective and variable," citing age, food preferences and consumption habits as examples which could influence the taster.
Dumbasses should have used Patents (Score:5, Funny)
The dumbasses should have used patents instead of copyrights. They could have easily patented the process used to make the cheese (process patent), the mechanical properties of the cheese (utility patent), and the appearance of the cheese (design patent), and sued in the Southern District of Texas for 49 Billion dollars in real and imagined damages.
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Re: Dumbasses should have used Patents (Score:1)
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You can Copyright the recipe, but this would only protect yourself if someone posted an other cookbook with the same recipe. Not from someone who read it and made their own product from it.
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You actually can't [paleoflourish.com] copyright recipes in the United States. The only thing you can copyright is the text surrounding the recipe.
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Maybe they could also argue that the name infringes. Witte Wieven are ghostly witches. Heksen are witches. These are honestly the only two Dutch cheeses I know that have supernatural creatures in their name (though I don't claim to know all). If they're also very similar in content, it's rather obvious it's an intentional copy.
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Patents would have expired long ago. They prefer copyright because it's practically forever.
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To make their patent applications foolproof, they could patent the process and design "on a computer."
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I am sure there is prior art for the taste of Dirt and Urine. Kidding aside.
Just because they may not be willing to catch you for Copyright violation, it doesn't mean you are not committing it.
If this Taste was protected by Copyright law, then the food and beer you make (assuming you lived in the EU) was close enough to what some other company made, then you could be in violation. Chances are they are not going to put the hammer down on you, because you are not selling it. But if you were and these compa
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It would only be copyright violation if he'd tasted someone's copyrighted food or drink. Independent creation is a defense against copyright violation.
US precedent is that recipes are not copyrightable, I don't see any way that the courts here would allow an end run by allowing taste to be copyrighted.
unlike music? (Score:5, Interesting)
So totally unlike music? Wonder what sort of precedent this interpretation may be setting.
Re: unlike music? (Score:3)
So totally unlike music?
Totally.
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With music, you write notes on paper. Those notes are then copyrighted. Music copyright covers melody lines, so someone taking a melody and creating an arrangement that sounds very different would still be infringing the copyright if the used the same melody. (and, yes, that covered changing the key too).
Like someone already said above, had they gone after process, ingredients and quantities, and those sort of quantifiable things, they may have done better.
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Like someone already said above, had they gone after process, ingredients and quantities, and those sort of quantifiable things, they may have done better.
Probably not. What you just described is a recipe. And save for specific versions of them, they cannot be the subject of a copyright claim. At best they get trade secret protection and that's about it.
It really was nothing but a waste of court's time for this to have happened. They were grasping at straws for anything to have happened.
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Re: unlike music? (Score:2)
I was under the understanding that it was 4 bars, but I'll be honest in saying that I've never verified that, I just trusted the source. But there are laws and there in a minimum, like you said.
For the Good Morning To You/Happy Birthday, all cases related to copyright here were down to who owned the copyright to the original Good Morning To You song, and whether that copyright was still valid. Happy Birthday was a known violation to the copyright. Splitting the first note did nothing here.
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Re:unlike music? (Score:4, Interesting)
It's kind of interesting when you zoom out a little and think of copyright protections as they apply to the senses. The scent of a perfume has long been ruled as something not protected. Taste, as this rule shows, has also been long considered as not protected. Sound though, whether as intricate as a song, or as simple as the old "Sosumi" of early Macs, has always been protected. Almost everything visual can be copyright protected. The Nike "Swoosh" for example is a pretty simple shape, but good luck using a similar one in any context.
Subjectivity in taste and smell appear to be the largest contributor to the disparity, although I would argue it would be very difficult to prove sight and sound are any less subjective. The true experience of sensory input of someone other than yourself can never be fully understood.
Why is that a cheese, taking years to craft and refine into a product for which the producer is happy in terms of recipe and methodology, is any less protected than a simple song?
Not that I'm arguing for cheese protection or cheese rights. I just think it's an interesting thought-exercise that some forms of sensory input have more legal protections than others.
Re:unlike music? (Score:5, Interesting)
Going a bit further, and to the absurd, can you imagine what it would be like if we treated foods the way we treat music?
No, you cannot give the cheese to someone else. You didn't buy the cheese, you just bought a license to eat it. Sorry, placing it on a cracker does not constitute significant alteration under fair use. If you want to serve the cheese to your patrons, you'll have to pay a licensing fee similar to ASCAP, and the person who came up with the recipe will also need to be paid royalties. Oh, so you did share the cheese? We will file suit, and since we cannot determine which particular cheese you shared, the damages we seek will be based on all the food in your house.
Re: unlike music? (Score:2)
what it would be like if we treated foods the way we treat music?
These days, we do: they're both shat out of someone's ass.
Re: unlike music? (Score:5, Funny)
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Most likely it has something to do with how true and accurate reproductions of the song can be (and similarly for video products), both in terms of the original notation or recorded performance.
Cheese is an agricultural product and technically can never be replicated perfectly identically.
Trademark and production process patent see
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. Almost everything visual can be copyright protected. The Nike "Swoosh" for example is a pretty simple shape, but good luck using a similar one in any context.
Yeah, no. The Nike swoosh is *not* protected by copyright, but by trademark law. Trademark, copyright and patents. Learn them, learn the difference, and punch everyone using the phrase "intellectual property".
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The scent of a perfume has long been ruled as something not protected.
So you are saying they should sell their cheese in an expensive looking bottle out of a boutique store or airport duty free area. The TV ads should feature a model dipped in milk and lounging around some villa, with a breathless voice-over announcing "Heksenkaas" as a bloke with designer stubble sniffs a cheese platter.
Honestly I think they would sell a lot of cheese if they did that. Great idea, pr0t0.
Music taste are subjective. Lyric/song are not (Score:2)
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So totally unlike music?
Yes, totally unlike music. Music can be objectively compared. Taste cannot. Now if they cheese company sued about the chemical composition they may have a case, but they may also find that different chemical compositions can taste incredibly similar.
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I don't know the specifics of EU copyright law, but US law requires that a copyrighted work be "fixed in a tangible medium of expression".
Recorded sound waves, written notes and lyrics, those are fixed. The taste or smell of cheese is not fixed, even if you could argue that cheese is a medium of expression.
Something's wrong here. (Score:2)
If it was that easy... (Score:2)
If it was that easy Coca Cola would have stopped Pepsi years ago
Re: If it was that easy... (Score:2)
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We need judges with better taste buds.
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But they taste nothing alike...
That being said, it's quite common for a company to produce something that tastes the same (or very similar) to another product. Aldi produce a drink called Red Thunder. It's an energy drink sold in 250ml cans, and (certainly to me) tastes exactly like Red Bull, only much much cheaper. Red Bull can't really do anything about it as Aldi (or whomever makes it for Aldi) were careful to ensure that the name and look are dissimilar enough to prevent that.
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But part of the appeal of Red Bull is being seen with the can in your hand. Why do you think Red Bull spends so much money sponsoring stunt airplane races, extreme sports, and so on? It's because that gives you the image of identifying with those activities when you carry the can around.
Being seen with an off-brand knockoff just identifies you as a Grandpa who buys bulk no-name products and drives an old people car.
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I've tried a few own-label ones and some of them taste as good or even better.
I don't buy them to identify with anything, I keep one or two in the fridge for when I'm in too much of a rush to make coffee but I need a hit.
Re: If it was that easy... (Score:2)
Red Bull tastes a lot like any one of a multitude of Japanese energy/vitamin drinks that have been around for decades longer than Red Bull. Lipovitan being one example.
Cola Wars (Score:1)
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Hey - can we now revisit the whole cola war episode? Maybe the EU courts could straighten all that out.
Which cases are you talking about? Are you sure that they are about copyright? Not trademark? Not trade secret?
The problem isn't precision. (Score:5, Interesting)
I bet a food chemist can do a pretty good job of telling you why a food tastes the way it does. Besides the basic taste components of sweet, salty, bitter, sour, and umami, the perceived flavor of food is primarily carried by volatile chemicals that can be isolated by chromatography. The remaining psychophysical element is texture, which can be mechanically analyzed.
Sure, there may be subtle elements that are beyond the state of science at present to characterize, but insofar as elements that can be precisely characterized and are unique, there is just as much fundamental justification for copyrighting them as there is for copyrighting story or melody elements.
The real problem is that we don't customarily copyrighted tastes. Doing so would introduce a change in the way people expect things to work we're not ready for that change.
Property is a social construct if anything is. If you were the last person on Earth, it would be meaningless to worry whether it was morally right to break into a house or circumvent the DRM on a book. When politicians created the notion of "intellectual property" around two to three centuries ago, they were intentionally engineering a change in their society. That change isn't as well integrated in our culture as personal possession or real estate, which have been part of our culture since preliterate times.
Re:The problem isn't precision. (Score:4)
When politicians created the notion of "intellectual property" around two to three centuries ago, they were intentionally engineering a change in their society.
For the ostensible purpose of advancing the arts and sciences.
Since forbidding people to create works using a cartoon mouse from 90 years ago isn't really doing that, we might need to revisit this stuff ...
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Actually, to give the full title,
You're thinking of the American copy 80 years later, though at the time, the arts and sciences covered most learning
Re: The problem isn't precision. (Score:2)
I am very familiar with Multon's essay, but if you think politics didn't exist in Milton's time I don't think you should be worried about *my* historical literacy.
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> When politicians created the notion of "intellectual property" around two to three centuries ago,
*facepalm*
Copyright is an ARTIFICIAL monopoly. Copyright was invented BY PUBLISHERS to prevent _other publishers_ from profiting from printing. Hence the "right" to copy.
* https://en.wikipedia.org/wiki/... [wikipedia.org]
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When politicians created the notion of "intellectual property" around two to three centuries ago, they were intentionally engineering a change in their society.
Significantly longer than that. Patents have existed for almost 600 years, and trademarks date back to ancient Rome.
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Ummmm ... duh? (Score:1)
It's been known for a very long time that you can't really keep a recipe secret from someone with good taste buds.
Take Gordon Ramsey. Yes, he's a bit of a dick ... but I've seen him make contestants on Top Chef recreate recipes just by tasting them. And they do.
Hell, *I* can reproduce many recipes after having tasted something, a little googling, and a couple of attempts.
A spreadable cream cheese and herb dip? You can find tons of recipes to make that, and some combinations of herbs are pretty common --
No. Description, presentation can be (Score:3)
The recipe for a McDonald's Quarter Pounder with Cheese is:
quarter pound of beef
Cheese
mustard and ketchup ("special sauce")
onion
pickles
That's either true or false. The recipe itself, the list of ingredients and their amounts, are facts. There is no copy right on facts.
In a well-known commercial, the ingredients are sung in a certain order to a certain tune. That presentation of the recipe is an artistic expression rather than a fact. There is a copyright on that.
If a recipe book has a paragraph describing
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And McDonalds ripped the special sauce flavor off of Big Boy's "Big Boy."
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Big Mac vs Quarter Pounder with Cheese (Score:2)
I shouldn't have said "special sauce". It's the Big Mac that had "special sauce". The quarter pounder has mustard and ketchup.
Special sauce (Mac sauce) is similar to Thousand Island, except special sauce doesn't have tomatoes or ketchup. Special sauce is:
sweet pickle relish, mayo, vinegar, mustard, garlic powder, onion powder, and paprika.
Copyright the taste of beef (Score:2)
Chickens ... (Score:4, Funny)
Why would taste be protected (Score:2)
When recipes aren't even protected by copyright ?
https://lizerbramlaw.com/2015/... [lizerbramlaw.com]
I disagree (Score:1)
Here we've got potato chips with dill & chives. At-least two manufacturers make them but how wouldn't "a potato chips with dill & chives" be specific and objective? Sure you can argue the actual taste is more complex than that but if we compare with a patent it's easy. Then again I'm not sure just making all current recipe public property and any change onwards protected by copyright law as someones unique creation but I'm unsure I agree with their reasoning.
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How isn't an antenna design or the layout & shape of a controller or phone "just facts"? Then again they aren't protected by copyright.
And I kinda feel like if someone make a new antenna now at-least as long as it's not revolutionary it's based on knowledge from antenna designs from before.
Personally I may think patent systems are worse than what they are good though I'd admit they give a reason to take more risk than otherwise, then again that doesn't mean risk taking wouldn't had happened otherwise an
It's gouda news! (Score:2)
Can we get a cheese pun thread going, since the holidays are coming?
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Oh, come on. Let us see that nice smile. Don't be such a grumpy gus.
Taste isn't in the food, it's in your brain (Score:3)
Taste is a perception, an experience involving food and a brain. It's not simply built into the food. You can easily manipulate how things taste to a person just by changing the context. For example, if you tell people that the same piece of meat is or isn't humanely farmed, it tastes different [plos.org].
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My friend, you are about 10-15 years behind in the neuroscience of perception. Flavor doesn't travel from your taste buds to your brain and cause a reaction. Instead, your brain predicts the flavor based on past experience, well before any sensory input arrives from your tongue. If the input confirms the prediction, then the prediction b
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In Amsterdam you can pay to fuck the cheeses