By the opinions published on last May 22nd, the Advocate General, Pedro Cruz Villalón, of the European Court of Justice ruled on nature and meaning of the concept of parody, as defined in the Directive 2001/29, in response to questions, proposed by the Belgian Court of second instance, indicated below:
- whether the concept of "parody" is an autonomous concept of the European Union law;
- if so, whether a parody has to satisfy the following conditions or conform to the following characteristics:
- have an own original character (originality);
- and such that the parody cannot reasonably be ascribed to the author of the original work;
- 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;
- mention the source of the parodied work;
- whether a work has to satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody.
On the first question, the Advocate General has stated that the concept of parody, referred to in Article 5, par. 3, letter.k) of the above-mentioned Directive, is an autonomous concept of European Union law, given the need to ensure the uniform application of the European Union law and to achieve the aim of harmonization of the laws of Member States relating to copyright.
With regard to the second question, the Advocate General, embracing the opinion of the European Commission, noted that none of the requirements set out by the Belgian Court constitutes a necessary element of the definition of parody, although recognizing the particular importance of the element of humor or burlesque.
Having clarified the above, the Advocate General analyzed the parody from three points of view: structural, functional and related to its content.
In particular, from the structural point of view, the parody must "offer a certain balance between the elements of imitation and the elements of originality, based on the idea that the inclusion of non-original elements must actually pursue the effect sought by the parody ".
Under the functional aspect, the Advocate General identified two types of parody: parody whose main intent is facing or has as its object the original work (so-called "parody of") and one in which the original work object of parody is merely used as an instrument intentionaly directed toward a third party or a third object (so-called "parody with"), both of which are worthy of protection.
Finally, with reference to the content of the parody, the Advocate General stated that, in interpreting the exception of parody, it is necessary to take into account certain rights provided by the Charter of Fundamental Rights of the European Union and, in particular, freedom of expression, which, according to the jurisprudence of the European Court of human Rights, holds a prominent position in a democratic society, such as the European civil society, although subject to certain limitations, including compliance with the "most deeply rooted beliefs in the European society". In light of the above-mentioned considerations, the Advocate General pointed out, finally, that "it can not be excluded from such concept (the concept of parody) a particular image just because the message is not shared by the author of the original work or it may seem regrettable by most of public opinion. However, it should not be accepted as a parody - and the authors of the work, with which help the parody is created, are entitled to object - alterations of the original work that, in form or in substance, convey a message radically contrary to the deepest beliefs of the society, on which the European public space is built and lives”. It is up to the national court, then, to determine whether, in this case, altering the original work respects "the beliefs deeply rooted in the European society."