Parody is one of the limitations on copyright, contained in Article 5(3)(k) of the InfoSoc Directive (‘the Directive’). The list of limitations in Article 5 of the Directive is optional, meaning that the Member States are free to decide which of the limitations from the list they will implement into their national laws. The judgment in Deckmyn v. Vandersteen, issued on September 3rd, is about the concept of parody in the EU copyright law and it is meant to clarify two issues: the scope of harmonization of the parody limitation in the Directive and the criteria to be looked at when applying this limitation. The potential impact of the judgment, however, goes well beyond the pure sphere of copyright: at stake here was also the issue of balancing of the fundamental rights, in particular the balance between copyright and freedom of speech. The Advocate General went further than the Court and also looked at the conflict between the right of ‘human dignity’ (para. 82 of the Opinion) or ‘deepest convictions of European society’ (para. 85 of the Opinion) and the freedom of speech. Unfortunately, the brevity with which the CJEU addressed the most controversial aspects of this case, leaves many questions unanswered.
The facts of the case and questions referred
At the center of the proceedings was a calendar prepared by Mr. Deckmyn as a gift for his fellow members of Belgian far-right political party Vlaams Belang. The calendar contained a drawing which was a clear reference to one of the covers of a popular comic book Suske en Wiske, but with some xenophobic undertones. The heirs of Mr. Vandersteen, the author of Suske en Wiske, sued Mr. Deckmyn for infringement of their copyrights and won in the first instance. Mr. Deckmyn appealed, claiming that the drawing in the calendar was covered by the parody exception, in the understanding of Belgian copyright law. The Vandersteen heirs however argued that the specific criteria for the parody exceptions were not met. The Court of Appeal referred the matter to the CJEU, asking it to clarify two main issues: whether parody is an autonomous concept of the EU law and, if so, what conditions must a work meet to be a parody.
The first question could be answered shortly (‘yes, it is’) and this answer is rather uncontroversial in the view of the previous CJEU case law (where it already decided on the autonomous character of the concept ‘fair compensation’ used in Article 5(2)(b) of the Directive). This finding means in practice that the concept parody, as interpreted by the Court, is to be applied uniformly throughout the Member States which opted to implement this limitation into their laws. The Court noticed that: ‘[a]n interpretation according to which Member States that have introduced that exception are free to determine the limits in an unharmonised manner, which may vary from one Member State to another, would be incompatible with the objective of that directive’ (para. 16). This finding will thus have some harmonizing effect, as to date the copyright exceptions were implemented throughout member states in very incoherent manner. It was however the second issue that raised the main controversies in this case.
Scope of the parody limitation in the EU copyright law
If parody is an autonomous concept of EU law, as the CJEU confirmed, then what does it mean? According to the Court, the answer to this issue is quite simple. Based on the settled case law which explained how to define different concepts under the EU law, the CJEU decided to look into 1) the ‘usual meaning in everyday language’ of the term parody, 2) ‘while also taking into account the context in which it occurs and the purposes of the rules of which it is part’. As a result, the Court found that there are two ‘essential characteristics’ of parody:
‘first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery’.
No other conditions need to be met.
The Court has thus opted for a broad reading of the exceptions listed in Article 5 of the Directive. This interpretation can be of course debated. For example, the Advocate General pointed out in his Opinion that there are two elements to the nature of parody: a structural one (which concerns the distinction between a mere copy and a separate original creation) and a functional one (which concerns the purpose of the parody, its effect and content). The structural feature of parody means that ‘of course, a parody, apart from copying certain elements of the original work, should ”display an original character of its own’’’. According to the Advocate General, originality is thus a sine qua non condition for the assessment of a disputed work. In this context, it is curious that the Court considered it was not necessary ‘that the parody should display an original character on its own’ (para. 21). It is however hard to imagine a parody with no such original character which would qualify for the exception pursuant to Article 5(3)(k).
Following the clarification of the concept of parody exception itself, the Court analyzed how it should be properly applied. Pursuant to the judgment, in the application stage the concept is to be scrutinized in one more test: whether the balance between the copyright and freedom of speech of the user is safeguarded.
Balancing freedom of speech and copyright
As a second step in the interpretation of the concept of parody, the Court looked into the purpose of this exception. It noted that the general purpose of the Directive is ‘a harmonization [..]which relates to observance of the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest’ (recital 3 of the Directive). Moreover, the purpose of limitations listed in Article 5 of the Directive specifically is to safeguard a ‘[a] fair balance of rights and interests between […] the different categories of rightholders and users of protected subject-matter’ (recital 31 of the Directive).
Taking this purpose into account, the Court inferred that when applying the parody exception, a fair balance must be struck between the interests of the copyright holder and the freedom of expression of the user who makes the parody of the protected work (para. 27). Such balancing exercise is to be applied on a case-by-case basis by the national courts.
The Court did not stop its analysis there. It went one step further and decided to apply these general rules to the facts of the Deckmyn case in order to give the national courts some first input as to how to apply the foregoing balancing exercise. The CJEU stated that, given the discriminatory message of the parody, copyright holders ‘have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message’ (para. 31).
While the Court’s judgment is helpful in taking the first steps in delimiting the balance between copyright protection and the protection of fundamental rights, the judgment is not without its problems. The Court does not explain very well the criteria relevant to determine the kind of message that parody should not convey. Does the finding in this case mean that copyright holders can prohibit any parody which is offensive? If so, offensive to whom: the copyright holders or the society at large?
These difficult issues were already enunciated in the Opinion of the Advocate General, under the ‘functional characteristics’ of the parody. The Advocate General focused on the issue of whether the national court should take into account the content of the message of the calendar in making its assessment of the parody exception (para. 72 of the Opinion). Considering the discriminatory character of the disputed drawing in the calendar, the issue presented a question of the impact of the fundamental rights on the scope of application of parody exception. This question was, according to Advocate General, the most difficult in the Deckmyn case (para. 76 of the Opinion). Advocate General indicated that, if parody met all the criteria indicated previously, the right of freedom of expression was decisive for the interpretation of this concept. Of course, freedom of expression was not unlimited and should be balanced with other fundamental rights at stake in this case – such as the right to dignity (Article 1 of the EU Charter on Fundamental Rights, ‘EU Charter’) or the prohibition of discrimination on the basis of race or religion (Article 21 EU Charter). Moreover, the Advocate General proposed the main criterion for balancing these conflicting rights: the question whether the parody ‘serves to disseminate the messages completely contrary to the deepest convictions in the society’ (para. 85 of the Opinion).
The Advocate General also made a reference to Article 10(2) of the ECHR which sets out the cumulative conditions under which freedom of speech can be restricted and looked into established ECtHR doctrine from the Handyside case, saying that the freedom of speech is
‘applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population’ (Handyside, para. 49).
Moreover, it would be an interesting addition to the analysis of the Deckmyn case to draw a comparison with the ECtHR case law which dealt with similar issues of balancing the copyrights and the right of freedom of speech (for example the recent case Ashby Donald and others v. France) and to established ECtHR case law on protection of political speech (which under the established case law of ECtHR is given the highest level of protection).