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Parody as an exception to copyright infringement

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01/07/2014

The case upon which the Advocate General delivered his opinion [1] concerns Johan Deckmyn of the right-wing Vlaams Belang political party. Deckmyn distributed a calendar including an image adapted from a comic book entitled “De Wilde Weldoener”. In Deckmyn’s version, the mayor of Ghent is shown showering coins on immigrants. The rights holders in the original work instituted copyright proceedings in the Belgian court. Before the Brussels Court of Appeal, Deckmyn argued that the image should fall within the Belgian exception for parody, caricature and pastiche. The Belgian law reflects Article 5(3)(k) of the Information Society Directive [2], which allows Member States to introduce an exception to the reproduction right and the right of communication to the public for the purpose of caricature, parody or pastiche.

The Court of Appeal referred a number of questions to the Court of Justice of the European Union:

  • Is the concept of parody an independent concept in EU law?
  • If so, must a parody satisfy the following conditions or conform to the following characteristics: (i) originality; (ii) such that the parody cannot reasonably be ascribed to the author of the original work; (iii) be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to someone else; (iv) mention 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?

The Advocate General considered that:

  • parody should be considered as an autonomous concept in EU law. (The Advocate General did not distinguish parody, pastiche and caricature for these purposes)
  • a parody must be both a copy and a creation. It is for the national courts to determine whether a modification is sufficient so that it would not be confused with the original and would, itself, be considered “original”
  • the subject of the parody does not have to be the original work
  • the parody must be humorous. Again, it is for the national courts to determine whether it is humorous (a more subjective assessment is hard to imagine!)
  • the courts must have regard to the potential conflict between freedom of expression and anon-discrimination based on cultural, religious and linguistic diversity. Parodies which are “contrary to the deepest, fundamental values of a certain society” should be prohibited.

It bears emphasising that an Advocate General’s opinion does not bind the Court of Justice. It is effectively a recommendation and, as such, it is not unknown for the Court to depart from an Advocate General’s reasoning.

If followed by the Court, however, the parody exception will leave considerable leeway with the national courts.

At present, the UK does not have a parody exception. Proposed regulations governing new copyright exceptions for parody (and also private copying) have recently been delayed, with October 2014 the earliest possible date for their implementation and 2015 arguably more likely.

[1] Case C-201/13
[2] 2001/29/EC

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