The Concept of the Copyright Work under EU Law

In Levola Hengelo BV v Smilde Foods BY, the Court of Justice of the European Union was asked, inter alia, to make a preliminary ruling on whether EU copyright law precludes the taste of food from being protected as a copyright work. This generated expectations that the ECJ and the Advocate General would clarify the scope and meaning of the copyright "work" under EU law. Instead, both the Court and the AG essentially concluded that taste could not be a copyright work because it could not be identified with sufficient objective precision. The article supplements the Court's reasoning by expanding significantly on why taste must, and yet cannot, be capable of objective identification, and explaining other essential attributes of the copyright work which exclude taste from copyright. The article then interrogates what clues the ECJ has provided on the scope of the copyright work under EU law, and whether it could, and should, have done more to explain the work's concept and boundaries. The article concludes that while Levola leaves us no closer to a harmonised definition of the copyright work in EU law, it was too ambitious to expect the ECJ to achieve this, particularly given the difficulty of theorising and conceiving of the work in the abstract, and independent to copyright's shaping filters.