The Central Court of the European Union (CJEU) has confirmed that parody is an autonomous concept of EU law that it is to be interpreted uniformly throughout the EU, thus setting the standard for what is a permitted reproduction of a copyright work under the exception to copyright infringement provided for by Article 5(3)(k) of the Information Society Directive 2001/29/EC (the Directive).
On 3 September, in Case C-201/13 Deckmyn, the court held that the essential characteristics of a parody were:
- to evoke an existing work whilst being different from it; and
- to be an expression of humour or mockery.
It is for the national courts to apply the test and strike a balance between the rights owners of the original works and the creators of any parody work, and such a balance will require consideration of all the circumstances.
- The CJEU decision clarifies the basic characteristics which must exist for an adaptation of a work to be a parody, whilst seemingly preserving the ability of national courts to take into account local interpretation and perception of any parody works.
- However, whilst the CJEU's comments give some comfort to any rights owner where their work may be used in a parody conveying a discriminatory or unsavoury message that they may be able to ensure that their original copyright work is not associated with the parody, it will for the national courts to determine such issues. The national courts will therefore be tested to find the boundaries as to what is an acceptable parody, and what has gone too far in damaging the original work protected by copyright. The potential for different courts to reach different conclusions suggests that this will not be the last reference on the scope of the parody exception, given that starting point for the provisions in the Directive is that they should be given a consistent interpretation throughout the EU.
In the UK, the CJEU decision is a timely one as the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 amending and expanding the UK exception to copyright infringement to take full advantage of the scope of Article 5(3)(k) are due to come into force on 1 October 2014. The amended section retains its reference to fair dealing, which will enable the court to reflect the balancing act articulated by the CJEU.
The Belgian Court of Appeal made the reference to the CJEU in a case which concerned a calendar created to publicise the Flemish nationalist party Vlaams Belang and distributed by Mr Deckmyn. The calendar used as its cover an adapted version of a well-known comic book, Suske en Wiske, dating from some 50 years earlier. The original work had depicted a central character surrounded by people trying to pick up the coins he was scattering and was titled "The Compulsive Benefactor". In the calendar, the central figure was depicted as the Mayor of Ghent, and those picking up the coins were depicted as people wearing veils. The rights holders of the comic book Suske en Wiske objected to the adaptation which reflected the political views of Vlaams Belang on the grounds that it did not have sufficient originality to be a parody work and was therefore an infringement of copyright, having fallen outside the scope of the parody exception to infringement. They obtained an interim injunction to prevent further distribution of the calendar on grounds of copyright infringement.
On appeal, the Belgian Court of Appeal accepted the argument that the cover fell under the Belgian exception for parody, caricature and pastiche, but referred questions to the CJEU on the scope of the exception provided for by Article 5(3)(k) of the Directive. The questions were
whether "parody" was an independent concept in EU law, and
- If so, must a parody satisfy the following conditions:
- The display of an original character of its own (i.e. be original in its own right);
- Such that the parody cannot reasonably be attributed to the author of the original work
- Be designed to provoke humour or to mock, regardless of whether any criticism therefore expressed applies to the original work or to something or someone else; and
- Mention the source of the parodied work
- Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?
3. The CJEU Decision
Having answered the first questions in the affirmative: that parody was an independent concept in EU law to be interpreted uniformly throughout the EU relation to the second and third questions posed by the Belgian Court, the CJEU found only 2 characteristics were necessary for a work to be a parody and fall within the exception to copyright infringement. First, the work must evoke an existing work while being noticeably different from it. Second, the work must constitute an expression of humour or mockery. In restricting itself to these two characteristics, the CJEU has provided a low hurdle for a work to comprise a parody, which at least at face value, appears simple to apply.
The CJEU did not adopt the characteristics suggested by the Belgian court in its reference, i.e. a parody work does NOT need an original character of its own, other than being noticeably different from the original work. It was also not necessary that the parody could be attributed to someone other than the author of the work itself, nor did it need to mention the source of the work parodied.
The national courts must apply the exception for parody in order to strike a fair balance between the interests and rights of authors in the works parodied and the freedom of expression of those creating parody works. In doing so, the national courts will need to take account of all the circumstances of the case. In this case, the parody conveyed a discriminatory message which was contrary to the principles of non-discrimination in EU law, and therefore associated the rights holder of the original work with that message. The rights holders therefore may have a legitimate interest in ensuring that their work is not associated with such a message. The national court must determine whether to permit the adapted work to take the benefit of the parody exception was a fair balance in such a case.