Genius in a Bottle; Perfume, Copyright, and Human Perception
56 J. Copyright Soc’y 427, 2009
37 Pages Posted: 27 Jun 2014 Last revised: 29 Jul 2014
Date Written: January 1, 2009
Since the establishment of modern copyright law nearly 300 years ago, national and international copyright regimes have accommodated political and technological developments not only by lengthening copyright’s term of protection, but also by expanding the sphere of works eligible for this protection. In recent years, in the U.S. and elsewhere, lawmakers have extended - or are considering extending - copyright protection to works like apparel designs, living gardens, computer programs, and stuffed animals. Those who established copyright law centuries ago never anticipated such works being protected by copyright. These works do, however, share with the books and similar works of authorship that were protected by eighteenth- and nineteenth-century copyright statutes, the basic attribute of being intelligible to humans through our senses of sight and hearing.
Over the past thirty years courts in Europe have wrestled with the question whether works of fragrance should be eligible for copyright protection. The deliberations of these courts have produced a number of inconsistent opinions on the issue. In 2006 the Netherlands Supreme Court held unequivocally that perfume was eligible for copyright protection. This holding, along with those of several French courts over the past ten years have, for the first time, extended copyright protection to works that are neither visible nor audible. Rationalizing their pro-copyright decisions, the Dutch and French courts emphasized the role of the perfume creator, and how it is akin to that of musicians and artists whose works have been protected by copyright from time immemorial. These decisions, however, give short shrift to the role of the user in determining both whether a work should be considered copyrightable expression, and also two dependant issues of the scope of the protected work, and the constitution of an infringing work. Given the law’s increasingly catholic perspective as to works demonstrating copyrightable expression, the role of the user must be given as much weight as that of the author on this question if copyright law is to retain its legitimacy.
This article proposes that works perceived through the chemical senses of smell or taste (as well as those perceived exclusively through the mechanical sense of touch) should not be deemed works of copyrightable expression. They should not because human olfaction and taste (and touch) are less acute than are vision and hearing to such an extent that we cannot perceive through these senses information that stimulates intellection, analysis, and synthesis that lead us to recognize this information as the expression of a particular creator or author. Extending copyright to works that we perceive by senses other than sight and hearing is, therefore, akin to providing copyright protection to a color, or a musical, or literary genre. Protecting colors and genres (and fragrances, flavors, or textures) by copyright would result in the monopolization of elemental tools of creativity, and inhibit those who might otherwise produce innovative and original works.
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