Say nay to a tastier copyright: why the CJEU should deny copyright protection to tastes (and smells)

Building on the debate engendered by the Dutch Heks’nkaas case and its referral to the Court of Justice of the European Union (Levola Hengelo, C-310/17), this article demonstrates the legal inadmissibility and economic inefficiency of sensory copyright on the basis of a set of systematic and policy considerations. After a brief outline of the background of the referral (Section 2) and of the fragmented national precedents in the field (Section 3), the article offers an overview of the international and European Union (EU) sources—legislative and judicial—defining the notion of protected works (Section 4), and provides an analysis of the risks that sensory copyright would entail for the internal consistency, fairness and economic soundness of the EU copyright system (Section 5), concluding with an interim assessment of the AG Opinion in the Levola Hengelo case through this lens (Section 6).