Can taste be copyrighted?

According to an EU court, the answer is no (or at least not yet).

At least that’s how they ruled this week in a court battle between two cheese companies. The fight was over whether the taste of a spreadable herb-flavored cheese spread was a copyrightable creation. One company, Levola, argued that another company by the name of Smilde had copied the taste of its product, a cheese named Heksenkaa, thus violating its copyright. The Court of Justice of the European Union ruled against Levola, saying taste – at least today – is not copyrightable.

The reason for their decision rests on the belief that unlike other forms of artistic expression such as literary, visual or cinematographic work, “the taste of a food product cannot be identified with precision and objectivity.” Instead, they argue, taste is much more subjective, based on an individual’s experience, their age and eating habits, as well as the environment in which the food is consumed.

Fair enough. There’s no doubt that each person tastes food differently, and the environment –  including everything from temperature to the altitude in which it’s consumed – has an impact on how food ultimately tastes.

But could technology change that? It seems that maybe, just maybe, the court left that door open.

From the court’s public statement (italics my own):

“Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.”

In other words, the court seems to be saying that while the world hasn’t developed the technology to precisely and objectively measure taste yet, they’re not ruling out that it eventually could happen and, if it did, they might want to revisit the idea of taste as copyrightable work.

There’s no doubt researchers are trying to get there. Whether it’s work on biosensors that more accurately replicate the tasting ability of the human tongue, or research on digital olfactory sensors that provide a more multidimensional understanding of smell by factoring in “temporal, spatial, mechanical, hedonic, and contextual correlations,” we are quickly gaining a better understanding of taste through technology.

The reality is measuring taste is tough, in part because taste is not only experienced through multiple senses, but also through the filter of each person’s history and preferences, and changes depending on the context of environmental factors such as air pressure, elevation, and temperature.

But here’s the thing: all this is true of other forms of artistic expression. Movies, for example, are multisensory experiences that are consumed and interpreted by each person through a filter of their own preferences, education, and experiences.  There’s also research that shows that  external environmental factors could impact and could change how people consume things like music.

All of which leads me to believe that the only difference between these other expressions of art and the taste of food is the ability to measure them accurately. But as technology advances, there’s a good chance that could change, and when it does the court might just rule the taste of cheese – or any other artistic expression in the form of food – is copyrightable work.

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