Joint BLACA/IPKat

Meeting

Eleonora RosatiReed Smith LLP

24 February 2015

Sensory and SensibilityWill Copyright Awake Your Senses?

Contents

• What does copyright law protect? • Closed vs open-ended subject-matter categorisations

• What is special about tastes, perfumes, etc?

• Is copyright protection available to them? Should it be?

What does copyright law protect?

In the UK: s1(1) CDPA

Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

(a) original literary, dramatic, musical or artistic works,

(b) sound recordings, films or broadcasts, and

(c) the typographical arrangement of published editions.

• Copinger and Skones James on Copyright: “A ‘work’ is a thing which satisfies the statutory description of a literary, dramatic, etc., work.”• A work is a work, though of the right kind

The result:

Still OK? Not really, according to the CJEU

• Protection to vest in subject-matter which is original in the sense that it is its author’s own intellectual creation (free and creative choices, personality, etc)• Case C-5/08 Infopaq, [35]

• Case C-393/09 BSA, [45]-[46]

• Joined Cases C-403/08 and C-429/08 FAPL, [97]

• Case C-145/10 Painer, [87]

Although …

However …

“The [InfoSoc] Directive envisages the protection of all intellectual creations by the same reproduction right and distinctions between literary and artistic works are no longer justified.”

Per Judge Birss QC, Abraham Moon (2012)

→ No longer different rights attached to different works?

“In the light of a number of recent judgments of the CJEU, it may be arguable that it is not a fatal objection to a claim that copyright subsists in a particular work that the work is not one of the kinds of work listed in section 1(1)(a) [CDPA] and defined elsewhere in that Act.”

Per Arnold J, SAS v WPL (2013)

→ Towards open-ended subject-matter categorisation?

So what is required?

If not a work of the right kind …

1. A work“Nevertheless it remains clear that the putative copyright work must be a literary or artistic work within the meaning of Article 2(1) of the Berne Convention … While the definition of "literary and artistic works" in Article 2(1) is expansive and open-ended, it is not unlimited.”

Per Arnold J, SAS v WPL (2013)

2. Original

3. (Fixed in a tangible form)

What is special about tastes, smells, perfumes?

It’s all about your senses

• Mechanical (touch, sight, hearing) vs chemical (taste and smell) senses

• Should copyright be just about mechanics?• Yes because mechanical sense characterised more objectively

• But is that true?

• Yes because drafters Berne Convention did not think of such subject-matter• But can one infer it from the wording of Article 2?

“A production”

• Idea/expression dichotomy • Article 9(2) TRIPS

• Input from the author: originality

• This rules out copyright protection for simple/natural tastes, eg the taste of an orange, and smells, eg the smell of fresh cut grass

How about perfumes and ‘elaborate’ tastes?

• A production in the artistic domain?

• Sufficiently original?

Is copyright protection available? Should it be?

Is it still a matter of law?

• Legal obstacles virtually non-existent• Simple/natural tastes/smells vs elaborate smells/perfumes

• A good idea?• No: copyright long and broad

• Yes: rewarding investment• TM law virtually (un)available

After all …

This

4 November 2005 – Dagbladet Arbejderen, page 3:

TDC: 73% “a forthcoming sale of the telecommunications group TDC which is expected to be bought”

These

Why not also this?

Dripping di pesce

… It’s your (copyright) chance: take it!

Thanks for your attention!

eleonorarosati@gmail.com

@eLAWnora