PhD student
focussing on the parody exception
at the
School of Law, University of Nottingham (UK)
Since the Advocate-General’s opinion
(still not available in English; but this opinion has been commented upon here),
parody has attracted a lot of attention. Today, the Court of Justice of the European Union (CJEU) issued its judgment
which is likely to attract twice as much attention. As a reminder, the eventful
introduction of a parody exception in UK copyright
law is scheduled to enter into force on 1st
October 2014.
The facts
This dispute concerns copyright
and more specifically the interpretation of Article 5(3)(k) of the Infosoc Directive which allows Member States to introduce an exception to the reproduction right (Article 2 of the
Directive) and the right of communication to the public (Article 3 of the
Directive) for the purpose of caricature, parody or pastiche. The facts relate
to a calendar parodying a well-known Spike and Suzy (Suske and Wiske)
album cover to promote a political message of the Vlaams Belang’s party (Flemish nationalist political party). The two works are illustrated above.
Against this background, the
Belgian court of first instance granted
an interim injunction preventing further distribution of the calendar.
Subsequently, the defendants appealed this decision and the Brussels Court of
Appeal decided to refer to the CJEU.
The Court’s judgment
First of all, the CJEU ruled, in
conformity with the analysis of the Advocate-General in his opinion, that that ‘parody’
is an autonomous concept of EU law, which
should be given uniform interpretation throughout the Union. The optional
character of the exception does not rule out the principle of uniform
application of EU law (see Padawan,
C-467/08, paras 32-33).
Moving to the interpretation of
the parody exception, the CJEU begins by reminding us that where no definition
is provided, the usual meaning of
terms is to be preferred. Expanding on the meaning of the term ‘parody’, the
Court holds that ‘the essential characteristics of parody are, first, to evoke
an existing work while being noticeably different from it, and, secondly, to
constitute an expression of humour or mockery’.
Furthermore, the national court
had asked if there were further requirements applicable before the parody
exception could be invoked. The CJEU answered that parody does not have to be original (besides
carrying apparent differences with the original work it is borrowing from), the
new work does not have to be
attributable to somebody else than the author of the original work nor does it have to relate to or mention
its source.
Finally, the CJEU repeats the
application of strict interpretation
of exceptions to the rights of reproduction and communication, as these are
derogations from exclusive rights. However, strict interpretation must enable
the effectiveness of the exception (see
recital 31 of the Directive, Football
Association Premier League and Others, C‑403/08 and C‑429/08, para 163). The CJEU indicates that a fair balance needs to be achieved
between the interests of authors and the users’ rights (see Padawan, C-467/08, para 43 and Painer,
C-145/10, para 132). This
means that courts must balance the
exclusive rights of rightholders with the users’ freedom of expression.
To that end, the court takes the example of the facts before it. The
drawing at issue presenting original characters distorted as to convey a
discriminatory message is likely to have the effect of associating the message
with the protected work. If the national court finds that such association is
plausible, the court needs to balance freedom of expression with the principle
of non-discrimination based on race, colour and ethnic origin (Article
21(1) of the Charter of Fundamental
Rights) as rightholders have a legitimate interest in not having their work associated
with such a message.
The ball is now in the Belgian
court to first determine whether the alleged infringing work falls within the
meaning of the Directive and whether the fair balance between rightholders and
users is preserved.
Comments
It is not surprising that the Court
ruled that parody is an autonomous concept. This is consistent with the CJEU’s
case law on the other provisions of the Directive (most notably in Padawan, C-467/08). However it is
interesting to see how the Court grasps the concept of parody. By referring to
the ordinary meaning of the word, the Court acts as if parody has a similar
meaning throughout the Member States. This is absurd as there are so many
controversies as to the ordinary meaning of the term already within a single
jurisdiction. As a reminder, parody is a multivalent term covering among others
satire, pastiche, caricature, spoof, irony and burlesque.
This being said, the Court also
established the only two requirements attached to the definition of ‘parody’
under the Directive. Firstly, the new work has to invoke the earlier work while
being noticeably different. Essentially, this is the very nature of parody.
Through the parody, the parodist aims to bring into the public’s mind the work
it is based on without confusing the public as to its creative origin. By the
distance operated, the parodist intends to avoid artistic confusion (whereby
the public might believe that the new work is a continuation of the protected
work) and economic confusion (signifying the public believes that the new work
was authorised by the rightholder). In any case, parasitism is excluded.
According to the second
requirement, parodies must have a humoristic character. Being a subjective
term, this condition could be problematic in practice and calls for further
case law. How should ‘humour’ be interpreted? Some jurisdictions have
interpreted this concept strictly, but some have quite broadly expanded it to
encompass homage and criticism.
Additionally, will this condition be interpreted based on the parodist’s
intent or the reaction of the public exposed to the new work? Lastly, the
target of the humoristic expression is not specified. Does it have to be the
earlier work? The original author? A third subject? Following this, the
humoristic element appears difficult to define.
Consequently, it is
apparent that other conditions must be set aside. This means that the parodist
does not have to acknowledge the borrowings, and the amount reproduced from the
original, the motivation of the parodist (such as commercial exploitation), the
encroachment of the rightholder’s economic rights, the possible alternatives to
the dealing (such as the likelihood to acquire a license) and the originality
(understood as the level required to attract copyright protection) are not
conditions to the application of the parody exception as enshrined in the
Directive.
If the above
paragraph is not likely to arouse passion, the developments of the CJEU regarding
the balance between the interests of rightholders and the users’ freedom of
expression certainly will. The CJEU established that rightholders had a
legitimate interest not to have their protected work associated with offensive
messages conveyed by the parody. It is dubious how this will be interpreted in
practice and whether this will annihilate the effectiveness of the exception. Parody
has worn many coats since its origin in Ancient Greece from being playful to
dark and acerbic. Today, some of these are likely to be jeopardised.
*The translation of the title
quotation is mine. Quotation of Pierre
Desproges (French
comedian known for his acerbic and dark humour): “On peut rire de tout,
mais pas avec tout le monde”.
Barnard & Peers: chapter 9,
chapter 14
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