According to article L 112-1 of French Intellectual Property Code, copyright “protects the rights of authors of all works of mind, whatever their kind, form of expression, merit or purpose”.
The only conditions laid down by the code for this protection are the originality and novelty of the creation. Originality means that the creation has to reflect the author’s personality. Article L 112-2 contains a list of the works likely to be protected, which does not mention perfume; however, it expressly indicates “among others”, and is therefore not limitative.
The definition of works which can enjoy copyright is extremely broad and can encompass any kind of creation; French courts interpret this provision extensively, granting copyright protection to some works which could, by their nature, be more likely to be qualified as “industrial” than “artistic” (for example, the shape of a roof tile).
One could legitimately think that perfume would be the kind of creation protectable by copyright. Perfume is indeed the result of a long creation process by perfumers who will choose the ingredients and their dosage. Perfume is a personal creation, reflecting the author’s personality.
However, a recent decision of December 10 2013 of the French Supreme Court has confirmed several previous decisions denying copyright protection to perfume. In decisions dated June 13 2006 and July 1 2008, the Supreme Court had already taken the position that perfume was not a creation eligible for copyright protection on the ground that it was only the result of the application of a knowhow, and that it did not reflect the author’s personality.
In the present case, the Supreme Court maintains the principle of nonprotection of perfume by copyright, with an additional legal reason; perfume is also excluded on the ground that copyright protects creations in their tangible form, as long as this form is sufficiently precise to allow its communication. The Court maintains that the process of development of a perfume is not a work of mind; in addition, it considers that the result of this process, namely perfume, does not fulfil this condition of tangible form, and is not therefore eligible for copyright protection.
This decision can be criticised on several points, the most important one being that it creates a new condition for copyright protection, relating to the tangible form of the work. In no way do the legal texts expressly contain this condition, or envisage that it could be raised. There is a non-contested principle that copyright does not protect mere ideas, but only their concrete materialisation. It seems that the Supreme Court has decided to give an extensive interpretation to this principle, deriving therefrom a condition of tangibility of the creation. However, a creation can be material without being capable of being touched. Perfume could be compared to music; it consists in an arrangement of notes, is not tangible but can be fixed on a tangible carrier, under the form of musical score for melodies or chemical formulas for perfumes. It is therefore difficult to justify why they should not benefit from the same treatment.
One can therefore wonder why the Supreme Court added a new condition for copyright protection in general, while it could have remained consistent with its prior decisions on perfume without this notion of tangible work. The future will tell whether this was dictated by the specifics of the case or whether this announces a more severe appraisal of copyrightability.