‘We Tin Express Mirth At Everything, Simply Non Alongside Everyone!’ Parody Too Limits To Liberty Of Expression: The Cjeu Conclusion Inwards The Deckmyn Case
November 27, 2018
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PhD pupil focussing on the parody exception
at the School of Law, University of Nottingham (UK)
Since the Advocate-General’s opinion (still non available inward English; but this sentiment 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 probable to attract twice equally much attention. As a reminder, the eventful introduction of a parody exception inward UK copyright constabulary is scheduled to motion into into strength on 1st October 2014.
The facts
This dispute concerns copyright too to a greater extent than specifically the interpretation of 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) too the correct of communication to the populace (Article three of the Directive) for the operate of caricature, parody or pastiche. The facts relate to a calendar parodying a well-known Spike too Suzy (Suske too Wiske) album concealment to promote a political message of the Vlaams Belang’s political party (Flemish nationalist political party). The 2 plant are illustrated above.
Against this background, the Belgian courtroom of start instance granted an interim injunction preventing farther distribution of the calendar. Subsequently, the defendants appealed this determination too the Brussels Court of Appeal decided to refer to the CJEU.
The Court’s judgment
First of all, the CJEU ruled, inward conformity with the analysis of the Advocate-General inward his opinion, that that ‘parody’ is an autonomous concept of European Union law, which should hold upwardly given uniform interpretation throughout the Union. The optional grapheme of the exception does non dominion out the regulation of uniform application of European Union constabulary (see Padawan, C-467/08, paras 32-33).
Moving to the interpretation of the parody exception, the CJEU begins past times reminding us that where no Definition is provided, the usual meaning of damage is to hold upwardly preferred. Expanding on the pregnant of the term ‘parody’, the Court holds that ‘the essential characteristics of parody are, first, to evoke an existing piece of occupation land beingness noticeably unlike from it, and, secondly, to constitute an human face of humour or mockery’.
Furthermore, the national courtroom had asked if at that spot were farther requirements applicable before the parody exception could hold upwardly invoked. The CJEU answered that parody does not cause got to hold upwardly master copy (besides carrying apparent differences with the master copy piece of occupation it is borrowing from), the novel piece of occupation does not cause got to hold upwardly attributable to mortal else than the writer of the master copy piece of occupation nor does it cause got to relate to or cite its source.
Finally, the CJEU repeats the application of strict interpretation of exceptions to the rights of reproduction too communication, equally 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 too Others, C‑403/08 too C‑429/08, para 163). The CJEU indicates that a fair balance needs to hold upwardly achieved betwixt the interests of authors too the users’ rights (see Padawan, C-467/08, para 43 too Painer, C-145/10, para 132). This agency that courts must residual the exclusive rights of rightholders with the users’ liberty of expression.
To that end, the courtroom takes the illustration of the facts before it. The drawing at number presenting master copy characters distorted equally to convey a discriminatory message is probable to cause got the lawsuit of associating the message with the protected work. If the national courtroom finds that such association is plausible, the courtroom needs to residual liberty of human face with the regulation of non-discrimination based on race, color too ethnic root (Article 21(1) of the Charter of Fundamental Rights) equally rightholders cause got a legitimate involvement inward non having their piece of occupation associated with such a message.
The ball is straightaway inward the Belgian courtroom to start determine whether the alleged infringing piece of occupation falls inside the pregnant of the Directive too whether the fair residual betwixt rightholders too users is preserved.
Comments
It is non surprising that the Court ruled that parody is an autonomous concept. This is consistent with the CJEU’s instance constabulary on the other provisions of the Directive (most notably inward Padawan, C-467/08). However it is interesting to run across how the Court grasps the concept of parody. By referring to the ordinary pregnant of the word, the Court acts equally if parody has a similar pregnant throughout the Member States. This is absurd equally at that spot are too thence many controversies equally to the ordinary pregnant of the term already inside a unmarried jurisdiction. As a reminder, parody is a multivalent term covering with others satire, pastiche, caricature, spoof, irony too burlesque.
This beingness said, the Court also established the solely 2 requirements attached to the Definition of ‘parody’ nether the Directive. Firstly, the novel piece of occupation has to invoke the before piece of occupation land beingness noticeably different. Essentially, this is the really nature of parody. Through the parody, the parodist aims to select into the public’s heed the piece of occupation it is based on without confusing the populace equally to its creative origin. By the distance operated, the parodist intends to avoid artistic confusion (whereby the populace mightiness believe that the novel piece of occupation is a continuation of the protected work) too economical confusion (signifying the populace believes that the novel piece of occupation was authorised past times the rightholder). In whatever case, parasitism is excluded.
According to the instant requirement, parodies must cause got a humoristic character. Being a subjective term, this status could hold upwardly problematic inward exercise too calls for farther instance law. How should ‘humour’ hold upwardly interpreted? Some jurisdictions cause got interpreted this concept strictly, but around cause got quite broadly expanded it to concealment homage too criticism. Additionally, volition this status hold upwardly interpreted based on the parodist’s intent or the reaction of the populace exposed to the novel work? Lastly, the target of the humoristic human face is non specified. Does it cause got to hold upwardly the before work? The master copy author? H5N1 3rd subject? Following this, the humoristic chemical ingredient appears hard to define.
Consequently, it is apparent that other atmospheric condition must hold upwardly laid aside. This agency that the parodist does non cause got to admit the borrowings, too the sum reproduced from the original, the motivation of the parodist (such equally commercial exploitation), the encroachment of the rightholder’s economical rights, the possible alternatives to the dealing (such equally the likelihood to instruct a license) too the originality (understood equally the score required to attract copyright protection) are non atmospheric condition to the application of the parody exception equally enshrined inward the Directive.
If the higher upwardly paragraph is non probable to arouse passion, the developments of the CJEU regarding the residual betwixt the interests of rightholders too the users’ liberty of human face sure enough will. The CJEU established that rightholders had a legitimate involvement non to cause got their protected piece of occupation associated with offensive messages conveyed past times the parody. It is dubious how this volition hold upwardly interpreted inward exercise too whether this volition annihilate the effectiveness of the exception. Parody has worn many coats since its root inward Ancient Hellenic Republic from beingness playful to nighttime too acerbic. Today, around of these are probable to hold upwardly jeopardised.
*The translation of the championship quotation is mine. Quotation of Pierre Desproges (French comedian known for his acerbic too nighttime humour): “On peut rire de tout, mais pas avec tout le monde”.
Barnard & Peers: chapter 9, chapter 14
