On September 3, 2014, the European Court of Justice (“ECJ”) issued a judgment in response to a request from the Hof van Beroep te Brussel (“Court of Appeal, Brussels”) for a preliminary ruling on three questions regarding the scope of a “parody” as articulated in article 5, par. 3, sub k, of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (the “InfoSoc Directive”).
Under the InfoSoc Directive, Member States are allowed to exempt a party from obtaining an author’s consent for the use of the author’s work, under the condition the work is used for the purpose of caricature, parody or pastiche. Belgium has decided to allow such exception, which can be found in article 22, §1, 6° Law of June 30, 1994, on Copyright and Neighboring Rights, as amended by the Law of April 3, 1995 (“Belgian Copyright Act” or “BCA”).
In 2011, Mr. Deckmyn, a member of the Vlaams Belang (a Flemish political party), illustrated the cover page of a political calendar by using a drawing resembling a famous Spike and Suzy’s comic book (Suske en Wiske in Dutch or Bob et Bobette in French) without the rightholders’ consent, being under the impression that he handled within the boundaries of the parody-exception as defined in article 22, §1, 6° BCA. The rightholders asserted in front of the Court of Appeal, Brussel, that the political calendar did not fulfill the required conditions and that it aimed to communicate a discriminatory message to the public.
Considering the fact that there was no clear definition for what constituted a “parody”, the Court of Appeal, Brussel decided to obtain clarification from the ECJ on the conditions a work must fulfil to fall under the InfoSoc Directive’s parody-exception.
The ECJ starts off by clarifying that a ‘parody’, which appears in a provision of a directive that does not contain any reference to national laws, must be regarded as an autonomous concept of EU law, which is interpreted uniformly throughout the European Union. The court further explains that the optional nature of the parody-exception does not mean Member States can interpret the limits of such exception in an unharmonised manner.
Subsequently, the ECJ ruled that, considering the absence of a definition in the InfoSoc Directive, the meaning and scope of a parody must be determined by considering its usual meaning in everyday language. According to the ECJ, in everyday language, the essential characteristics of a parody are, “first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humor or mockery”.
In Belgium, in absence of any definition, the case law has developed cumulative conditions that must be fulfilled in order to make use of the parody-exception on basis of article 22 BCA (see for example, in a similar case, Hof van Beroep te Gent (“Court of Appeal, Ghent”), 3 januari 2011 (Lucky Luke), I.R.D.I 2011, p.15). But, according to the ECJ, the scope of Article 5(3)(k) of the InfoSoc Directive must not be restricted by conditions which did not derivate from the usual meaning of the term ‘parody’ or from the language of the InfoSoc Directive, such as, for example, the parody’s own original character as required in the above-mentioned case. It remains uncertain which impact the ECJ decision will have on the cumulative conditions from Belgian case law.
Nonetheless, the ECJ states that when determining the applicability of the parody-exception under article 5, par. 3, sub k, of the InfoSoc Directive, it is for the Member States’ courts (in this case the Court of Appeal, Brussels) to strike a “fair balance” between the authors’ rights and interests, and the rights of those who seek to make use of copyrighted works, by taking into account all the circumstances of the case, including for example, the fact that the parody conveys a discriminatory message which has the effect of associating the protected work with such a message.
The case (C-201/13) can be found on http://www.curia.europa.eu.