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Saturday, 31 May 2014

A matter of intended or actual laugh? The parody exception under EU and UK laws

Gigi is invariably
great fun to watch ...
A few days have passed since Advocate General (AG) Cruz Villalon issued his Opinion [not yet available in English: will it ever be?] in Case C-201/13 Deckmyn [here], and even more time since UK IP Minister Lord Younger announced that adoption of proposed parody, caricature and parody exception had been [indefinitely?] delayed.

While waiting for further developments in this engaging UK copyright policy saga, a question that has probably arisen in the minds and hearts of parody-loving folks is whether the scope of proposed UK exception is the same as that of the relevant exception under Article 5(3)(k) of the InfoSoc Directive, at least as the AG understood it.

Well, it would seem that the answer may not be a resonant 'Yes!' after all.

This conclusion may follow consideration of whether it suffices that a parody has a burlesque/humourous intention or it is also necessary that it produces a burlesque/humourous effect.
... But does this produce
a humourous effect?
Does it have to?

Starting with the proposed UK parody, caricature and pastiche exception, although the Intellectual Property Office's Guidance for those using copyright works to create new content defines parody as imitating a work for humorous or satirical effect, proposed Section 30A(1) of the UK Copyright, Designs and Patents Act does not mention any such effect. This provision would in fact simply state that: "Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work".

When formulating his conclusions, AG Cruz Villalon merely referred to "burlesque intention" as a requirement of parody. 

However, when considering the effect of a parody, he held that it is a common understanding that a parody must have a somehow humorous effect, and that it is left to Member States [national courts?] to define what is humorous, also depending on different national sensitivities. 


At paras 67 to 69 of his Opinion the AG stated  [WARNING: Kat-translation] that: "parody pursues a specific effect, which somehow follows as a necessary consequence of the ri-elaboration of an earlier work. It is this selective reception, so to say, that must produce a certain effect on the recipients, lacking which the parody is a total failure ... Provided that one can refer to «burlesque» as a common term to describe the intentional dimension of a parody, I believe that Member States enjoy a great degree of discretion to determine if the work in question displays this feature of parody." 

While it seems clear that a parody must pursue a burlesque intention, from the Opinion itself it is not really clear whether it also necessary that it produces a burlesque effect. 

If the latter was the case, do you think that the work at stake in Deckmyn - which clearly pursued a [questionable?] burlesque intention - would be recognised as a parody ? In other words: does that calendar cover produce a burlesque effect?
Is that enough?

Furthermore, if a humourous effect was required, how easy would it be to find it when there are parodies that are deeply linked [as it is the case in Deckmyn] to specific national realities? 

Should the humorourous effect be assessed: (a) only in relation to the particular Member State in which the case is litigated; (b) the broader "European society" to which the AG referred when conducting his fundamental rights analysis; or (c) even the notion of an 'average EU consumer' of copyright-protected content [this trademark-specific notion does not (yet) exist in the EU copyright world, but may well be developed if one starts importing - see Deckmyn questions and AG Opinion - trademark-specific concepts such as that of confusion].

Hopefully the CJEU will clarify whether parody is just about burlesque/humorous intent [as it should be, says Merpel] or also something else, say a burlesque/humourous effect. 

Certainly, if the latter was the case, then UK proposed exception - despite reference to "fair dealing" - might be considered broader than the corresponding exception in Article 5(3)(k) of the InfoSoc Directive [by the way, if you are interested in discussing all this further, here's an event for you] ...

What do readers think?

2 comments:

Andy J said...

Just as the courts have stayed clear of making judgements about the artistic merits of artistic works when considering the subsistence of copyright, so I believe they have to remain detached from making subjective value judgements about the success or failure of a parody based on its comedic merits. And in particular the courts should certainly not be trying to evaluate the success of a parody from the perspective of a (notional) average EU consumer.
Since the Art 5 (3)(k) and the proposed s. 30A exceptions are effectively defences against infringement claims, the onus should lie with the defendant(s) to satisfy the court that the intention of their parody was to be comic or have a burlesque effect. In the process, the defendant might well define their specific target audience, and thus allow the court to decide whether that specific audience are likely to have seen it as comedic. For example if the parody is aimed at children, a different, possibly less subtle approach might be required than when addressing a highly sophisticated, well-read audience with some kind of literary spoof.
The more the courts introduce artificial 'average persons' to the equation, the less overall certainty the law provides.
In the case of Deckmyn, I suggest that what is being attempted is a form of unsubtle dog-whistle politics, wherein the savvy voter will get the message, but the naive or disinterested viewer will just see a silly cartoon spoof. Either reaction seems to me to be a valid one in terms of making the work a parody.

patently said...

And J is right. This is dangerously close to developing an ECJ-approved definition of "Eurocomedy" which would be the only form of comedy allowed [to use copyright-protected works].

That in itself must surely be capable of parody... but would the ECJ agree that it was funny?

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