Advocate General Cruz Villalon released his eagerly awaited opinion on 22 May 2014, in the case of Johan Deckmyn [C-201/13]. The opinion confirms that “parody” is an autonomous concept of EU law and that to qualify as a parody for the purpose of a copyright exception, the work must have an element of originality and humour. However, significant discretion is left to the courts of Member States to determine whether works will meet the parody criteria in light of domestic sensitivities. It remains to be seen whether this uniform interpretation of parody throughout the EU will have any effect on the UK government's proposal to introduce a copyright exception for parody.
Background to the case The case of Johan Deckmyn, Vrijheidsfonds VZW v Helena Vandersteen & others arose after Johan Deckmyn distributed calendars at a public New Year’s Eve event hosted by his far-right political party, Vlaams Belang, in 2011. The calendar included an image adapted from the cover of a comic book of Mr Vandersteen's “Suske en Wiske” series (“Spike and Suzy”' in English), entitled De Wilde Weldoener (The Wild Benefactor). In Vlaams Belang's adaptation, the mayor of Ghent was depicted as one of the comic book characters, strewing gold coins to immigrants. The heirs and rightholders of the original work issued proceedings in the national court for infringement of copyright. At national level, the court granted an interim injunction preventing further distribution. The decision was appealed before the Brussels Court of Appeal where the defendant argued that the image should fall within the Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright Act 1994 and Article 5(3)(k) of the InfoSoc Directive (2001/29/EC).
Questions referred to the Court of Justice of the European Union (CJEU) The Court of Appeal referred the following questions to the CJEU:1. Is the concept of “parody” an independent concept in European Union law?
1. Is the concept of "parody" an independent concept in European Union law?
2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
a) The display of an original character of its own (originality)
b) And such that the parody cannot reasonably be ascribed to the author of the original work
c) Be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to someone else
d) Mention the source of the parodied work?
3. 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’s opinion To the first question, the Advocate General (AG) determined that, in the interests of equality and a uniform application of European law, parody should be considered an autonomous concept of EU law.
The AG then addressed the second and third questions together. No distinction is drawn between parody, caricature and pastiche because, together, they provide the same exception to copyright. The AG’s opinion draws out several common characteristics of “parody”.
A parody must be both a copy and a creation. The nature of a parody is such that it will draw upon an earlier work as a reference point and modify it in some way to emphasise its point. The AG leaves it for the courts of Member States to determine whether a modification is sufficient so that it would not be confused with the original and would be considered “original”.
The AG opines that the subject of the parody does not need to be the original work. The parody could be of the author of the original work, the original work itself or some other third party altogether (as in the present case).
The parody must be humorous. Conscious that humour can be considered in very different ways in different countries, the AG leaves it for the courts of the Member States to determine what should be considered humorous – you had better hope they get the joke!
While the copyright owner does not have to approve the parody, it must be considered in light of individuals’ fundamental rights. In particular, courts of Members States will likely have to consider the potential conflict between freedom of expression (Article 11(1) EU Charter of Fundamental Rights) and non-discrimination based on cultural, religious and linguistic diversity (Article 22 of the Charter). Parodies which are “contrary to the deepest, fundamental values of a certain society” should be prohibited by the courts of Member States.
Impact Despite confirming that parody is an independent concept in EU law and setting out key criteria to establish if a work is a parody, there is still significant scope for the courts of Member States to determine whether individual cases will pass the various criteria. Whilst we expect the AG's opinion to be followed by the CJEU, we will not know the outcome of the reference until later this year.
There is currently no copyright exception in the UK for parody. However a draft proposal, following an extensive government consultation process has now been shelved (together with draft exceptions in relation to quotations and personal copies for private use). This followed concerns raised by the House of Lords Secondary Legislation Scrutiny Committee in relation to the proposed “contract override” provision. We expect to see a revised draft parody exception proposal re-tabled by the Department for Business, Innovation and Skills and the Intellectual Property Office later this year. It remains to be seen whether this will, in addition to the House of Lords Committee's concerns, also take account of the fact that parody is likely to be deemed an autonomous concept in the European single market.