Is It A Parody? The Advocate-General’S Consider Inwards The Deckmyn Case
November 27, 2018
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PhD educatee focussing on the parody exception
at the School of Law, University of Nottingham (UK)
As was expected, the Advocate-General’s opinion (not all the same available inward English) inward the Deckmyn instance was released this morning. This dispute involves interesting questions such every bit the interpretation of the parody copyright exception, the requirements attached thereto as well as its human relationship with other cardinal rights.
The provision concerned is Article 5(3)(k) of the Infosoc Directive which allows Member States to innovate an exception to the reproduction correct (Article 2 of the Directive) as well as the correct of communication to the populace (Article 3 of the Directive) for the purpose of caricature, parody or pastiche.
As the English introduction of a parody exception is existence currently delayed, along with the continuation of criticism surrounding the Infosoc directive, the AG’s persuasion is real much welcome. Additionally, every bit Member States receive got the habit of tailoring copyright exceptions to their legal traditions, the AG’s persuasion (despite its lack of binding effect) is a meaningful clarification of the pregnant as well as orbit of the parody exception at European Union degree as well as provides insight every bit to its interplay with other cardinal rights.
The facts
The facts are pretty straightforward as well as concern the distribution of a calendar of which the front end page reproduces a well-known Spike as well as Suzy (Suske as well as Wiske) album covert distorted inward a means to promote a political message of the Vlaams Belang’s political party (Flemish nationalist political party). Unequivocally, the alleged infringing piece of job represents the City of Ghent’s Mayor, Mr Termont, wearing a white tunic with a belt displaying the Belgian colours, distributing money to people from dissimilar backgrounds. This calendar was distributed during the party’s New Year’s Eve reception as well as later, inward brochures every bit good every bit on the party’s website. Consequently, the heirs as well as rightholders of Mr Willebrord Vandersteen (the writer of the comic albums) claim infringement of their copyright inward the comic albums against Mr Johan Deckmyn (member of the Vlaams Belang’s party) as well as the Vrijheidsfond, the association responsible for the party’s funding as well as promotion.
The 2 works:
The applicants debate that the alleged infringing drawing reproduces the full general aspect of the master copy covert as well as other typical elements of the Spike as well as Suzy album covers such every bit the orangish colour, font, characters, as well as title. The principal differences betwixt the 2 plant prevarication inward the exchange of the Spike as well as Suzy’s grapheme for a depiction of Ghent’s Mayor joined to the characters chosen to alternative upward the coins conveying a discriminatory message as well as the add-on of a handwritten contestation “Fré freely inward the trend of Vandersteen”.
At national level, the courtroom of starting fourth dimension instance granted an interim injunction preventing farther distribution of the calendar. Subsequently, the defendants appealed arguing that the piece of job is allowed every bit it falls nether the parody exception. The applicant too appealed to prohibit the political political party to utilisation the protected plant inward whatever manner.
After recognising the absence of uniformity inward the legal tests applicable to the parody exception, the Brussels Court of Appeal decided to refer to the Court of Justice of the European Union (CJEU).
1. Is the concept of 'parody' an independent concept (read “autonomous concept”) inward European Union law?
2. If so, must a parody satisfy the next weather condition or arrange to the next characteristics:
- the display of an master copy grapheme of its ain (originality);
- and such that the parody cannot reasonably survive ascribed to the writer of the master copy work;
- be designed to provoke humour or to mock, regardless of whether whatever criticism thereby expressed applies to the master copy piece of job or to something or mortal else;
- mention the source of the parodied work?
3. Must a piece of job satisfy whatever other weather condition or arrange to other characteristics inward monastic say to survive capable of existence labelled every bit a parody?
The opinion
Preliminary remarks
Before turning to the analysis of the questions referred past times the Belgian court, the AG notes what is not asked of the courtroom as well as consequently, what is left out of the opinion.
Firstly, every bit moral rights are excluded from the orbit of the directive (recital 19), their ensuing violation is left to the assessment of national judges.
Secondly, the interpretation of the three-step test enshrined inward Article 5(5) of the directive requiring copyright exceptions to survive applied “in for sure special cases which do non conflict with a normal exploitation of the piece of job or other subject-matter as well as do non unreasonably prejudice the legitimate interests of the rightholder” is too left out of the questions referred. Accordingly, the AG emphasises the role of the national guess to verify whether these weather condition are met inward the dispute.
Finally, the AG observes that the Belgian Court does non inquire the CJEU to evaluate the Belgian bound to the exception whereby the exception is applicable if the piece of job is created inward accordance with honest practices (see Article 22(1)(6) of the Belgian Copyright Act 1994).
The analysis of the questions referred
In relation to the starting fourth dimension interrogation referred, the AG states that “parody” is an autonomous concept of European Union law, because the Directive refrains from defining or expressly referring to the Member States for the Definition of that concept. This existence said, the AG adds that when European Union constabulary does non provide sufficient guidelines, the nature of an autonomous concept does non preclude Member States from having a large margin of appreciation to determine the requirements attached to the exception.
Turning to the 2 other questions referred, the AG decides to address these together every bit they relate to the requirements for invoking the exception. Firstly, the AG notes that at that topographic point is no important distinction betwixt the 3 concepts mentioned inward the provision (parody, pastiche as well as caricature) as well as considers them together every bit they all part the mutual characteristic of existence an exception to copyright. After consulting dictionaries to grasp the ordinary pregnant of parody as well as its Greek etymology, the AG establishes mutual features to whatever parody. These comprise structural as well as functional features.
Structural features of parodies
A parody is simultaneously re-create as well as creation. The nature of parody requires borrowing elements from before works. These elements borrowed tin consist inward essential elements of the master copy piece of job every bit for the parody to survive successful the before piece of job must survive recognisable to the public. But the parody is too creation every bit the parodist distorts the master copy piece of job as well as it is inward his involvement that the populace does non confuse the novel piece of job with the master copy work.
Against this backdrop, the AG attributes to Member States the duty to determine whether the novel piece of job incorporates plenty novel elements to non constitute a mere re-create of the master copy with niggling modification. In calorie-free of the foregoing, the AG notes that Member States tin adopt dissimilar requirements such every bit the absence of confusion, sufficient detachment or whether to a greater extent than elements are copied than necessary.
In a nutshell, the parody needs to survive master copy inward a feel that it must non survive confused with the master copy piece of job it borrows from.
Functional features of parodies
To pause downward the reasoning, the AG distinguishes betwixt its subject, number as well as content.
Firstly regarding the subjects (or targets) of parodies, the AG supports that parody plant tin either target the before piece of job or its author, or a tertiary land of report external to the piece of job it borrows from.
Secondly, the number of the parody must survive humorous. However, the AG leaves the assessment of the variety of comical number required to Member States which acquit an of import margin of appreciation to determine whether the parody meets this threshold.
Thirdly inward relation to the content of parody as well as the influence of cardinal rights, the AG examines the human relationship betwixt copyright (Article 17(2) of the Charter of cardinal rights) as well as the parodist’s liberty of aspect (article 11(1), European Union Charter of Fundamental Rights). The national judges must acquit inward hear the importance of preserving the liberty of expression, an essential characteristic of whatever democratic societies. This existence said, this correct is non absolute. Besides the limits on the correct ready out inward Article 10(2) of the European Convention on Human Rights, the Charter protects other values which may conflict with the liberty of aspect such every bit human dignity (Article 1 of the Charter) as well as non-discrimination based on cultural, religious as well as linguistic multifariousness (Article 22 of the Charter). Based on this, the AG notes that the parody exception should non survive refused but because the writer of the master copy piece of job does non approve the comment made through the parody. Nevertheless, the AG suggests an of import bound upon the application of the exception past times stating that the exception is inapplicable where the parody conveys “a message radically opposite to the deepest values of a detail society” (this quote is translated from the French version past times the writer of this post). In conclusion, national judges must weigh the dissimilar cardinal rights inward relation to the circumstances of the detail case.
Comments
As this is the starting fourth dimension parody instance referred to the CJEU, this dispute is probable to attract a lot of attending as well as possibly, criticisms. By making “parody” an autonomous concept of European Union law, the AG follows the CJEU’s consistent approach endorsing the demand for a uniform application of European Union law. For instance with the Padawan determination inward relation to the autonomous concept of “fair compensation”, the Court stated : “according to settled case-law, the demand for a uniform application of European Union constabulary as well as the regulation of equality require that the price of a provision of European Union constabulary which makes no limited reference to the constabulary of the Member States for the purpose of determining its pregnant as well as orbit must commonly survive given an independent as well as uniform interpretation throughout the European Union; that interpretation must accept into line of piece of job organisation human relationship the context of the provision as well as the objective of the relevant legislation” (See Padawan at para 32).
Interestingly, when it comes to defining what parody consists of, the AG chooses non to distinguish the 3 price parody, caricature as well as pastiche. This appears to survive inward line with the nature of parody which is seen every bit a multivalent term roofing with others satire, pastiche, caricature, spoof, irony as well as burlesque.
By the structural feature, the AG acknowledges the detail nature of parody which requires both copying as well as creation. The AG infers that national judges receive got to weigh whether the parody comprehends plenty creation to exclude representing a slavish mistaken of the original. Ultimately, this is where the difficulty lies every bit parodist needs to re-create plenty elements to trigger the retentiveness of the master copy piece of job inward the populace as well as simultaneously, render plenty novel elements to avoid confusion. Against this backdrop, the AG requires the parody to survive master copy rather than a mere re-create with niggling change of the original. One is allowed to wonder what variety of originality is required. Are nosotros talking of the ordinary pregnant of originality or the copyright constabulary pregnant (i.e. “original” plenty to trigger copyright protection)? On this question, the AG seems to travel out the assessment to the national judges.
Moving on to the functional features of parody, the AG appears to allow the application of the exception to both target (commenting either on the piece of job it borrows from or its author) as well as weapon parodies (using the parody to comment on a tertiary subject). This approach departs from the the States distinction made inward the landmark Campbell determination where the the States Supreme Court held fair utilisation applicable solely to target parodies. This existence said, this brings the European Union closer to other jurisdictions such every bit Australia as well as Canada where legislators rejected the distinction betwixt target as well as weapon parodies inward the wording of the provision.
The number of parody needs to survive humorous. The assessment of the required comical number is left to the national judges as well as depends on the detail circumstances of the case. However, the AG appears to survive inward favour of a liberal interpretation every bit the parody exception relies heavily on liberty of aspect considerations. This existence said, i wonders whether the number equals the outcome of the parody itself. Indeed problems could arise if it is the number of the parody on the populace which is required. This is explained past times the fact that this number relies on several accounts such the talent of the parodist but too relies on the populace exposed to the parody.
Finally as well as surprisingly, the AG appears to allow the Member States (and peculiarly the national courts) assess the content of parodies. By weighing the dissimilar cardinal rights at stake, the courts tin bound the application of the parody exception where the message is radically opposite to the cardinal values of a detail social club such every bit xenophobia, racism as well as homophobia but could survive extended to other cultural diversities every bit long every bit these are considered past times national courts jeopardised past times the parody. This terminal betoken promises to attract many criticisms every bit it is an opened upward door to a variety of censorship.
In conclusion, much leeway is left to national judges as well as it is non given that this interpretation amounts to harmonisation with the Member States. Finally, whether the approach of the AG volition survive followed past times the CJEU remains to survive seen.
Barnard & Peers: chapter 9
