Sensory and Sensibility - Will Copyright Awake Your Senses?
Reed Smith LLP
24 February 2015
Sensory and Sensibility
Will Copyright Awake Your Senses?
• 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?
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
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,
• Case C-5/08 Infopaq, 
• Case C-393/09 BSA, -
• Joined Cases C-403/08 and C-429/08 FAPL, 
• Case C-145/10 Painer, 
“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?
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)
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?
• 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