The Court of Justice of the European Union ("CJEU") rendered its judgment on 3 September 2014 in case C-201/13 (ruling) relating to the copyright exception for parody.
The facts of the case are simple. Mr Deckmyn, a politician of the Flemish nationalist political party “Vlaams Belang” handed out calendars on which appeared on its cover page a drawing resembling the work of Willy Vandersteen, the author of Suske en Wiske. The disputed work replaced the main character of the comic book entitled “The compulsive benefactor” with a drawing of the socialist mayor of the city of Ghent scattering coins picked up by people wearing veils and people of colour.
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Vandersteen and Others submitted that the disputed work constituted an infringement to the author's exclusive rights and disputed Mr Deckmyn's attempt to rely on the exception for parody. While the court of first instance ruled that the parody exception did not apply and that the calendars infringed Vandersteen's rights, the Brussels Court of appeal decided to refer three questions to the CJEU.
The case relies on Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the “InfoSoc Direcive”), and more particularly on article 5(3)(k) which provides for an exception to the author's exclusive rights in case of “use for the purpose of caricature, parody or pastiche” (the "exception for parody").
Such provision is transposed in Belgium under article 22(1)(6°) of the Copyright Act of 30 June 1994, which provides that “once a work has been lawfully published, its author may not prohibit: (…) caricature, parody and pastiche, observing fair practice”.
Parody is an autonomous concept of EU law
Anybody acquainted with the CJEU's case-law in the field of copyright will not be surprised that, similarly to cases relating to the notions of “communication to the public”, “reproduction in part” or “fair compensation”, the CJEU held that the concept of “parody” is an autonomous concept of EU law. Accordingly, the margin of discretion left to Member States is considerably reduced with regard to such concept.
Remains then the question with respect to the Belgian specific wording of the exception for parody which stipulates that an author cannot prohibit a parody of his work, provided that the author of the parody is “observing fair practice”.
The contours of the exception of parody are outlined by the CJEU
In the absence of a clear definition of “parody” in the InfoSoc Directive, the CJEU has been led to define its meaning and scope. The CJEU accomplishes such task relying on the “usual meaning in everyday language”, noting however that it also requires taking into account “the context in which it occurs and the purposes of the rules of which it is part”.
Accordingly, following the CJEU, the characteristics of “parody” are twofold: (i) to evoke an existing work while being noticeably different from it; and (ii) to constitute an expression of humour or mockery.
In its efforts to provide guidance, the CJEU also lists conditions that are irrelevant when considering parody. Consequently it is not required that the parody:
- displays an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work;
- could reasonably be attributed to a person other than the author of the original work itself;
- relates to the original work itself or mention the source of the parodied work.
By notably reaching the conclusion that the parody needs not be original, dismissing one of the conditions listed in the Court of Appeal’s second question, one may believe that the CJEU has decided to depart from the view of Belgian’s most eminent scholars.
We believe however that the CJEU decided not to require originality as a mandatory additional condition that must be fulfilled in order for a work to be qualified as a parody. This does not change the fact that in practice a parody will in most likelihood be original.
Freedom of expression versus copyright
In a third and final step the CJEU is compelled to rule on the delicate question of the balance between two fundamental rights.
Relying on Recital 31 of the preamble to the InfoSoc Directive, the CJEU rules that it is for national courts to strike a fair balance – taking into account all circumstances of the case – between the right to property, which includes intellectual property rights, and the freedom of expression of those relying on the exception for parody.
In this context, the CJEU further puts forth as an additional test the principle of non-discrimination based on race, colour and ethnic origin enacted in Directive 2000/43/EC on equal treatment and the Charter of Fundamental Rights of the EU.
To conclude its reasoning, the CJEU indicates that if a work of parody is deemed to be discriminatory by the national court, the author of the original work has a legitimate interest in ensuring that his work is not associated with such message.
The latter conclusion is meaningful. It is not because a parody is found to be lawful from a copyright perspective that it cannot be prohibited on the basis of another legal test, such as balancing fundamental rights.
In addition, it shall be reminded that the judgment of the CJEU is issued in the context of parody, meaning that the work created is derived from an existing work. In our view, the ruling does not preclude the creation of original works and is therefore not inconsistent with the freedom of expression.
The limits of the CJEU's judgment on the exception for parody
It is essential to note that the CJEU’s does not address all copyright issues. Indeed, the moral right of authors, which is a so-called personality right, is passed over in silence. This is rather logical since the question of the compatibility with moral rights had not been raised by the Court of Appeal, although the referring judgment expressly raises the issue of moral rights.
Also, it should be noted that the InfoSoc Directive expressly excludes moral rights from its scope. Remains then open the question as to how the CJEU would have handled a question in relation to moral rights. Also, it is still uncertain how parody interacts with moral rights, and in particular the right of integrity pursuant to Article 6bisof the Berne Convention which provides that any author has the right to object to any derogatory action prejudicial to his honour or reputation. Would the CJEU go so far as to conclude that parody is an exception to the author's moral rights?
The debate on the exception for parody remains thus open.