From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Thursday, 22 May 2014

BREAKING: AG Cruz Villalon says that certain parodies may be prohibited if against fundamental values of society

The original work ...
Shortly preceded by the AdvoKat's Opinion, this morning Advocate General (AG) Cruz Villalon released his much-awaited Opinion [only available in a handful of EU languages, including this Kat's native Italian, but not English yet] in Case C-201/13 Deckmyn

As readers will remember, this reference for a preliminary ruling from the Brussels Court of Appeal concerns a number of questions around the nature and significance of parody within Article 5(3)(k) of the InfoSoc Directive

The background proceedings originated from a calendar distributed during a public event on New Years Eve 2011, and whose cover reproduced a modified version of the cover to a well-known Suske en Wiske 1991 comic book in order to illustrate the ideas of Flemish nationalist political party Vlaams Belang.

The court of first instance granted an interim injunction to prevent further distribution of the calendar, in that it infringed the copyright in the comic book. The decision was appealed before the Brussels Court of Appeal on grounds that - among other things - the calendar cover fell within the scope of Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright Act.

The Court of Appeal decided to stay the proceedings and refer the following questions to the Court of Justice of the European Union (CJEU):

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:
-    the display of an original character of its own (originality);
-    and such that the parody cannot reasonably be ascribed to the author of the original work;
-    be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
-    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?

... and its parody
Parody is an autonomous concept of EU law

Following a disclaimer that this case is neither about moral rights [which remain unharmonised at the EU level] nor the three-step test in Article 5(5) of the InfoSoc Directive, AG Cruz Villalon agreed with this Kat and stated that the notion of parody [which - like many other things - the InfoSoc Directive does not define] must be regarded as an autonomous concept of EU law. 

As the CJEU has stated on a [consistent] number of occasions, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of European Union law which makes no express reference to the law of the Member States  for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the EU.

A parody must be original, can target an earlier work or something/someone else, should be humorous, and should comply with the deepest values of EU society

This said, the AG turned to the second and third questions, which he addressed together. 

Should the concept of parody be considered on its own or alongside the concepts of caricature and pastiche? According to he AG, it is not really necessary to distinguish between the three of them, as they are all aimed at setting an exception to copyright protection. This said, there are some basic features of any parody, both structural and functional.

A picture of Bruno ...
The structural element of a parody: originality

A parody is both a copy (in that a parody always draws upon an earlier work and some of its essential elements) and a creation. The latter is because a parody is an alteration of an earlier work that the author of the parody has made. It is the author of the parody in the first place who does not want his/her work to be confused with the earlier one.

This said, it is left to Member States [or rather their courts?] to determine whether a parody is sufficiently original and not just a reproduction with slight alterations of an earlier work.

The functional elements of a parody: subjects, effect and content

Here the AG distinguished between the subjects of a parody, its effect, and content. In relation to the latter, fundamental rights issues might arise.

As regards the subjects of a parody, these can be either an earlier work [so to make a "parody of"] or something/someone else [so make a "parody with", as is the case here]. According to the AG, within Article 5(3)(k) of the InfoSoc Directive, a parody can be indifferently a "parody of" or "a parody with".

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

Finally, the AG addressed the content of a parody and the relevance of fundamental rights. Of course, the Suske en Wiske book did not have any political aim, and moreover the copyright owners do not approve of the political message of the parody. 

So the question is how to balance copyright (Article 17(2)) and parodists' freedom of expression - including disturbing or upsetting expressions (Article 11(1)) - of the Charter of Fundamental Rights. The latter is not unlimited, as also Article 10(2) of the European Convention on Human Rights states, as other rights might interfere with its exercise.

According to the AG, a parody cannot be prohibited just because the author of the parodied work does not approve of the message of the parody. However, the AG also believed that parodies that transmit a message that is radically contrary to the deepest, fundamental, values of a certain society should be prohibited.

While this Kat understands that the background proceedings concern a parody with xenophobic, racist and homophobic elements, she nonetheless finds this last point a bit like a slippery slope, and fairly dangerous if applied as a general principle of copyright law. It is true that Europe has a history which has not always been an enlightened one, but is is also true that some of its "deepest", fundamental, values have changed over time, more often than not in better. Plus, if a parody has to be humourous, humour may also come in disturbing forms. Should judges prohibit parodies just because they find them upsetting, on grounds that also society as a whole would do so?


Anonymous said...

Let me be the first from this side of the pond to throw a rather large stone at the notion of "fundamental values of society."

Here in the States, one of those fundamental values is more prized than it appears to be on your side. Of course, I am talking about the First Amendment.

Have you not learned anything from your own history? Have you not learned that the ability to control what is being said - even under the guise of "ohhh, that parody is just too much against a 'fundamental value'." just leads to unacceptable political control?

Does anyone really want these ugly americans to (once again) travel across the seas to save yourselves from yourselves?

Anonymous said...

"...However, the AG also believed that parodies that transmit a message that is radically contrary to the deepest, fundamental, values of a certain society should be prohibited."

So, does it mean that the EU should leave other countries alone to uphold their "...deepest, fundamental, values.."?

Slippery customer

Michael said...

I agree with you on this one. Moll Flanders and Annie Hall are both satires, were both banned and are both rather amusing.

Some satire is in poor taste. A lot of satire is. Judges,politicians and clergy may not approve, but Free Speech is important. Values change because people can make fun of holy cows. If we ban satire, then we stifle discussion.
In Israel, we've had attempts to illegalize use of Holocaust images and yellow stars. Some things are in poor taste and cartoons may well be homophobic, racist, anti-Semitic, ultra nationalist of otherwise offensive. The danger of preventing free speech is worse.

Anonymous said...

Once again the Copyright Kat's comments are so off point, superficial and ill thought through. Having observed the absence of any really analysis in her commentary on this case (as with other EU judgments) in the past year despite comments which invited her to consider the fundamental rights' issue, she now appears to be perturbed by something which to give the AG credit remains a serious problem in Europe.

If there is a legal problem with this opinion it is the confusion test. As far as the fundamental rights are concerned, it is for the national court. It may not offend you, but in downtown Ghent or deepest Flanders it may not sit so well with the whole community.For some reason no one minds when internet users cannot get their illegal downloads as this seems an acceptable restriction on the freedom of expression (which includes the right to receive information). However, suddenly that freedom becomes paramount when it concerns stigmatising or mocking members of a particular community.

Anonymous said...

Anonymous at 22:30:00: I take offence at your comment and personal attack. Seriously, this is a FREE blog that Eleonora and others contribute out of the goodness of their hearts. Let's make it a professional community. Worthy comments in the second para, but the first is just not on.

Eleonora Rosati said...

@Anonymous, 22:30: The great thing about freedom of expression is that it consists of both imparting and *receiving* information: if you are not interested in information coming from me, just don't bother reading my posts. Then, of course, if you have something more meaningful than me to say, do please get in touch: I would be delighted to host your views and guest contributions on this blog.

Anonymous said...

Kudos to Eleonora for her handling of a delicate topic and a grouchy reader!

Alberto Bellan said...

Wouldn't it be less slippery requiring that parody just has "some" meaning, irrespective of such meaning being hilarious, melancholic, sad, upsetting, etc? That could help establishing a less arbitrary division between derivative works and parody.

Great take eLAW (and you all: do not feed the troll).

Anonymous said...

This is not unique to this blog as serious commenting on copyright issues in a way which elevates the debate or is useful to practitioners or those pleading cases is rare. Copyright stakeholders (which includes this blog) can be tricky customers.

The difficulty is when an information source which is essentially what this blog started as and which remains its main function veers too much into the realm of personal opinion as opposed to legal views.Then it becomes a platform with supporters and detractors. Looking at the blog's remarks on the opinion, it mixes slight comments with personal remarks including some which go beyond what is necessary for an understanding of the case. Those remarks will undoubtedly get a reaction.

To be fair to whoever posted that anonymous remark, there is an element of this blog especially this part of the blog dishing it out (even the naming and shaming persons just doing their job) but not being able to take it. There is also an element of much more serious comment on the trade marks and patents side.

Sabine Jacques said...

I agree with you Eleonora and thank you for the great work done on a daily basis.

Turning to the opinion itself, the absence of confusion as structural element seems in line with the nature of parody itself and in my opinion, most of the other requirements adopted by member states (judges) are derivatives from this condition.

For the relationship between parody and fundamental rights,I cannot prevent myself from thinking of the BASF decision in France (1987). The facts concerned the airing of a movie which constituted a parody of a TV ad for BASF. Basically, we could see the Austrian President shedding tears while listening to nazi songs. Moreover, the BASF slogan was also reproduced. Eventually the court refused the use despite the humoristic intent underlying the use. Here too, criticisms exposed the ban as being a kind of censorship.

François Coppens said...

Hi and thanks for this first comment.

Have you noticed that in its analysis of the "structural" element, the AG refers to an "imitation" of the original works and carefully avoids (on purpose imo) talking about "reproduction" or "adaptation".

Do you think the distinction is of any relevance ?

I'm happy with some parts of this opinion (especially the one saying parody must not necessarily make fun of the original works, but also of something unrelated), but the conclusion leaves me quite puzzled : the fundamental values of the european society as a criterion to determine whehter an author may oppose a parody of his work or not ?

Michael Thesen said...

I wonder if copyright is the right battleground for this "freedom of speech vs. fundamental values of the society" discussion.

If the content of a publication offends the fundamental values of the society, then the publication should be prohibited by laws other than copyright (e.g. criminal law). It is a duty of the society to defend its fundamental values, not the duty of the author of an original work.

I would eventually make an exception to this rule when it comes to the respect for the personality rights of the author as a tiny part of the fundamental values. However, if the author feels that the parody amounts to a defamation, this would be the general problem of balancing personality rights and freedom of speech and could be treated as libel.

Anonymous said...

but the conclusion leaves me quite puzzled : the fundamental values of the european society as a criterion to determine whehter an author may oppose a parody of his work or not ?

It seems that criteria on allowability of a parody expressed above entirely overlap with the criteria for any expression. In other words, it is just a well known exception of art. 10, clause 2 ECHR.

It would be interesting to derive some limitations on allowability of a parody from a nature of a parody.

For example, a parody can be seen as a creative mapping of an original object into a clear emotionally colored aid object. The parody mapping is constructed to enhance presence/absence of certain features/characteristics in the original object.

Allowability might be in question, for example, when the aid object has been chosen in a way to carry a high amount of additional/new information, initially unrelated to the original object, what can result in a new unexpected attitude to the original work of an average reader/user.

Eleonora Rosati said...

@François: Thanks so much for your v interesting comment. Whether a parody involves a reproduction or is just an adaptation is not irrelevant, considering that the right of reproduction has been harmonised by the InfoSoc Directive, while adaptation has not been expressly harmonised by this piece of EU legislation(but see the leaked IA here:

This means that the parody caricature pastiche exception within Article 5 could strictly apply only to the former and not also the latter ...

Of course, it is very difficult to distinguish in practice whether something is just an adaptation and not also a reproduction. Hence, I guess, the AG's omission.

Anonymous said...

what also can be argued is that a creative mapping between the original work and the parody is a key component of a parody and should dominate the overall impression from the parody, want the parody be allowed to use the original work.

How about to require a parody to have its own creative component, independent from the original work? For example, Suske en Wiske book and its parody are just too similar, for me ...

Anonymous said...

Whilst the 'fundamental values' things is inconvenient, it is useful for our ethics to have particular situations to deal with. From the morality provisions for patents I've learned that a lot of interesting perspectives are gained from the focus on specific inventions, eg in Harvard oncomouse, a mouse that is genetically engineered to get cancer. These decisions and principles get picked up by commentators, academics, non-IP judges and contribute to many different spheres of life.

Andy J said...

Anon @10.17
I think there's a distinction to be made between IP which requires registration formalities, as with patents and trade marks (in the UK at least) where there are public policy / morality criteria which can be applied during the examinaition phase, and rights which exist ab initio such as copyright. Clearly with the latter, the first time a 'fundamnetal values' test can be applied is when infringement is claimed. This means the law lacks clarity until a substantial amount of caselaw is accumulated, and even then, since each case will depend on its individual facts, and society's values at the time of the decision, this sort of approach is highly unsatisfactory.

Anonymous said...

Andy J,

I will disagree with you and place one distinction: the defenses (such as Fair Use) can be written into the law a priori - that is, with public policy and morality informed.

I think you mistake the use of case law to define and sculpt the exceptions.

However, in this regards, case law is no different for defenses as it is to substantive law as all law is shaped in the crucible of judgment to one degree or another.

Further, there will always be someone unsatisfied with the results.


Andy J said...

Anon @ 12:58 Thanks for your response. As we are already at 18 comments, I think is unnecessary to engage in a detailed debate here, especially as AG Cruz Villalon's opinion has yet to be accepted or rejected as the basis of the court's final decision.
Having now read the AG's opinion (in French and with the assistance of Google Translate to supplement my rusty French) I think he has erred in conflating the requirements of the Charter of Fundamental Rights of the European Union with the Infosoc Directive, so as to come to the conclusion at [89] that when interpreting the meaning of parody, the national court must be guided by the Charter and should carry out a balancing test between freedom of expression (Art. 11) and various Articles (principally Arts 20 - 26) which forbid discrimination or foster respect for religion, race, gender etc.
In my view, a parody should be judged a parody if it meets the other criteria the AG lists, but the test on grounds of whether it discriminates or is offensive in terms of the Charter articles should be entirely separate, and certainly should not form part of copyright jurisprudence per se.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':