Does Advocate General’s opinion in ECJ “Deckmyn” parody case shed light?

Who: Case C‑201/13; Johan Deckmyn, Vrijheidsfonds VZW v Helena Vandersteen and Others

Where: European Court of Justice

When: 22 May 2014

Law stated as at: 2 July 2014

What happened:

On New Year’s Eve in 2011 Vlaams Belang, the Flemish nationalist party, distributed a calendar, the cover of which reproduced and altered a picture from a well-known Suske en Wiske (or ‘Spike and Suzy’ as it was known in the UK) 1991 comic book in order to illustrate the ideas of the party.  Click here to see this.

An interim injunction was initially granted by Belgium’s Court of First Instance, preventing any further distribution of the calendar.

However, this decision was appealed before Belgium’s Court of Appeal with the Appellants submitting that the calendar’s cover fell within the scope of the Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright Act.

The Court of Appeal decided to stay the proceedings and refer the following questions to the Court of Justice of the European Union (CJEU):

1. Is the concept of ‘parody’ an independent concept in European Union law?

2. If so, must a parody satisfy the following conditions or conform to the following characteristics:

a. the display of an original character of its own (originality);

b. and such that the parody cannot reasonably be ascribed to the author of the original work;

c. be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;

d. mention the source of the parodied work?

3. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

On 22 May 2014 Advocate General Cruz Villalón released his opinion on Deckmyn, including his response to the above questions.

The Advocate General’s opinion

The Advocate General considered the questions referred to the CJEU by Belgium’s Court of Appeal and established the following guidance within his opinion.

The concept of parody is an autonomous concept of European Law.  The terms of the 2001 parody, caricature and pastiche exception to copyright law under the Information Society Directive (“Infosoc Directive”) should, therefore, be interpreted independently from the laws of individual Member States and in a uniform manner that pervades the EU.

A parody will, by its very nature, copy an original piece of work whilst simultaneously distinguishing itself from the original.  The audience to whom the parody is directed should still be able to recognise the parody as an imitation of the original and there is, therefore, a necessary balance between imitation and originality.  It should fall upon individual Member States to determine if a parody has sufficient originality and is not simply a duplicate of the original.

A parody may be a parody of an original work or a parody with an original work, meaning that the parody may either ridicule the original work itself or merely use the original work as a channel for its ridicule of something else.

Parody need not be humorous

The Advocate General points out that the various international dictionary definitions of parody are all focussed around the intended effect of the parody and that these usually necessitate some form of comedy, humour or burlesque.  However, the Advocate General does not appear to go so far as to suggest that parody must be humorous in order to be considered a parody for the purposes of the exception.  The important focus for the relevant court of the Member State should instead be to consider the parody as a form of creative expression and as an expression of opinion.

The Advocate General also stated that an author should not be able to prevent the caricature, parody or pastiche of their work on the grounds that they do not approve of the message that the parody is intended to convey.  However, the Advocate General also stated that certain parodies should be prohibited, namely those conveying a message that is radically contrary to the deepest, fundamental values of a certain society.

Why this matters:

The UK is in the process of implementing the caricature, parody and pastiche exception into our national law (the Copyright, Designs and Patents Act 1988) (for my previous Marketing Law article on the UK’s impending parody exception please see here).

As and when it is handed down, the judgment in Deckmyn will provide guidance on how the copyright exception should be interpreted on an EU wide basis, which will, in turn, affect how the UK interprets the exception as part of UK law.  The opinion of the Advocate General is by no means determinative of the final judgment of the CJEU but it provides an insight towards the possible decision.

The Infosoc Directive provides Member States with a list of exceptions that Member States can choose whether or not to adopt as part of their national copyright laws.  These exceptions provide certain situations in which an act of copying will not be deemed to be copyright infringement.

Can “parody” defence be interpreted uniformly across the EU?

Firstly, the confirmation that parody is an autonomous concept of European law requiring uniform interpretation throughout the EU is slightly alarming.  As acknowledged by the Advocate General, parody is, in the majority of instances, intrinsically linked with humour.

Humour is not only a concept that is subject to varying national interpretations but is also fundamentally subjective.  If the judgment on whether an act of copying is deemed to be humorous or not falls on the courts of Member States then there is a substantial risk that national and subjective sensitivities could result in varying interpretations of humour and, subsequently, a lack of uniformity across Member States.

Similar to the national nature of humour, the Advocate General’s comment that the exceptions may not apply to parodies which convey a message that is radically contrary to the deepest, fundamental values of a certain society may potentially expose the exception to further conflicting national interpretations.  This also gives rise to the concerning possibility that a Member State’s ability to prohibit the exception from applying to a given parody will limit freedom of expression, as established by Article 11 of the Charter of Fundamental Rights of the European Union.  This risk could arise because any parody that a Member State deems to be radically contrary to the deepest, fundamental values of a certain society would not fall within the exception and would be deemed an infringement of the original work.  The result is that an author’s work can become subject to the capricious sensibilities of a Member State.

There are instances where this prohibition would appear to be justified, for example had the calendar included a message denying the Holocaust then it may be argued that such a prohibitive power is necessary, as denial of the Holocaust is illegal in Belgium and other EU Member States.  However, such anti-semitic, racist, or otherwise offensive statements would normally be dealt with by criminal, not civil, legislation.

The Advocate General’s opinion has raised some interesting considerations in relation to the caricature, parody and pastiche exceptions but a clearer picture of how the UK’s parody exceptions will eventually be interpreted should be provided when the final CJEU judgment is delivered.

Above all else, the Advocate General’s opinion makes it clear that substantial amounts of case law will be needed in order to establish exactly what confines the exceptions are able to work within.

Finally, it is important to note that the Advocate General’s opinion explicitly disregards moral rights and Article 5(5) of the Infosoc Directive which provides that the exceptions will only apply where they do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightsholder.

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