The ECJ has given a preliminary ruling on the interpretation of the exception to the rights of copyright owners for the purposes of parody under the Copyright Directive (2001/29/EC). The ruling comes
The ECJ has given a preliminary ruling on the interpretation of the exception to the rights of copyright owners for the purposes of parody under the Copyright Directive (2001/29/EC). The ruling comes at a particularly opportune moment as the UK parody exception will come into force on 1 October this year.
The Law
The Copyright Directive provides that authors have the exclusive right to authorise the reproduction and communication to the public of their works. There is an exception to this, however, that a work can be used, without the author's consent, for the purpose of caricature, parody or pastiche.
Background
Belgian politician Johan Deckmyn attempted to parody comic book "Suske en Wiske" or "Spike and Suzy" produced in 1961 by Willy Vandersteen. Mr Deckmyn's political party produced a calendar which depicted the mayor of Ghent in place of the original character scattering coins to people of Ghent. According to Vandersteen's heirs, this was an infringement of their copyright and the ethnicity of the people collecting the coins combined with the fact that they were depicted wearing veils meant the parody conveyed a discriminatory message, which had the effect of associating the protected copyright work with that message.
Ruling
The ECJ firstly confirmed that parody is an autonomous concept of EU law and must be given uniform interpretation throughout the EU. On the meaning of parody itself, given the Copyright Directive gives no definition of the concept of parody, the ECJ ruled that it must be defined in accordance with its usual meaning in everyday language and in everyday language, the essential characteristics of parody are, on the one hand, "to evoke an existing work while being noticeably different from it" and, on the other, "to constitute an expression of humour or mockery". The ruling went on to say that a parody need not display an original character of its own, other than that of displaying noticeable differences when compared to the original work parodied. There is, therefore, a tricky subjective element in that the national courts must decide what constitutes a noticeable difference. Clearly, the exception will not encompass blatant reproductions, but we will have to wait to find out just how subtle a difference can be.
The ECJ ruled that the application of the exception for parody must strike a "fair balance" between the interests and rights of the rights holders, and the freedom of expression of the user. To preserve a "fair balance", all the circumstances of the case must be taken into account. In that context, the ECJ declared that Deckmyn's depiction was discriminatory on the grounds of "race, colour and ethnic origin" (the principle of non-discrimination being laid down in the Charter of Fundamental Rights of the European Union). The ECJ went on to conclude that if a parodied work conveys a discriminatory message, the rights holders have a "legitimate interest" in disassociating their work from that message.
Comment
Following this decision, rights holders will now have a potential argument that a parody falls outside of the scope of the exception based on discrimination, potentially significantly limiting its application. The Charter of Fundamental Rights aims to protect many fundamental values but those values may well conflict with the concept and very nature of parody. When considering these fundamental rights, it is difficult to imagine a parody that is not discriminatory, for example, where it is based on religion or belief, age and sexual orientation. Consider also "political or any other opinion", also included in the Charter. Does the ruling mean that a political parody would fall outside the scope of the exception?
In practice, in order to satisfy the "fair balance" test, it will be for the national courts to decide whether an expression of humour or mockery is in fact, discriminatory. It seems sensible that the ECJ did not lay down any set criteria to make this assessment given the social and cultural differences that exist between Member States. It will also be interesting to see how the national courts assess whether a parody displays a "noticeable difference" whilst still evoking the original work.
The Law
The Copyright Directive provides that authors have the exclusive right to authorise the reproduction and communication to the public of their works. There is an exception to this, however, that a work can be used, without the author's consent, for the purpose of caricature, parody or pastiche.
Background
Belgian politician Johan Deckmyn attempted to parody comic book "Suske en Wiske" or "Spike and Suzy" produced in 1961 by Willy Vandersteen. Mr Deckmyn's political party produced a calendar which depicted the mayor of Ghent in place of the original character scattering coins to people of Ghent. According to Vandersteen's heirs, this was an infringement of their copyright and the ethnicity of the people collecting the coins combined with the fact that they were depicted wearing veils meant the parody conveyed a discriminatory message, which had the effect of associating the protected copyright work with that message.
Ruling
The ECJ firstly confirmed that parody is an autonomous concept of EU law and must be given uniform interpretation throughout the EU. On the meaning of parody itself, given the Copyright Directive gives no definition of the concept of parody, the ECJ ruled that it must be defined in accordance with its usual meaning in everyday language and in everyday language, the essential characteristics of parody are, on the one hand, "to evoke an existing work while being noticeably different from it" and, on the other, "to constitute an expression of humour or mockery". The ruling went on to say that a parody need not display an original character of its own, other than that of displaying noticeable differences when compared to the original work parodied. There is, therefore, a tricky subjective element in that the national courts must decide what constitutes a noticeable difference. Clearly, the exception will not encompass blatant reproductions, but we will have to wait to find out just how subtle a difference can be.
The ECJ ruled that the application of the exception for parody must strike a "fair balance" between the interests and rights of the rights holders, and the freedom of expression of the user. To preserve a "fair balance", all the circumstances of the case must be taken into account. In that context, the ECJ declared that Deckmyn's depiction was discriminatory on the grounds of "race, colour and ethnic origin" (the principle of non-discrimination being laid down in the Charter of Fundamental Rights of the European Union). The ECJ went on to conclude that if a parodied work conveys a discriminatory message, the rights holders have a "legitimate interest" in disassociating their work from that message.
Comment
Following this decision, rights holders will now have a potential argument that a parody falls outside of the scope of the exception based on discrimination, potentially significantly limiting its application. The Charter of Fundamental Rights aims to protect many fundamental values but those values may well conflict with the concept and very nature of parody. When considering these fundamental rights, it is difficult to imagine a parody that is not discriminatory, for example, where it is based on religion or belief, age and sexual orientation. Consider also "political or any other opinion", also included in the Charter. Does the ruling mean that a political parody would fall outside the scope of the exception?
In practice, in order to satisfy the "fair balance" test, it will be for the national courts to decide whether an expression of humour or mockery is in fact, discriminatory. It seems sensible that the ECJ did not lay down any set criteria to make this assessment given the social and cultural differences that exist between Member States. It will also be interesting to see how the national courts assess whether a parody displays a "noticeable difference" whilst still evoking the original work.