|You may now breathe:|
the CJEU is back!
It did so in its decision in Case C-201/13 Deckmyn, a reference for a preliminary ruling from Belgium. The decision is yet to be made available, but we have the relevant press release [UPDATE @10:38am: the judgment is now available here]
As readers will remember, the background national proceedings concern a (Kat-free) calendar that was 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 original work ...|
The AG Opinion
Advocate General (AG) Cruz Villalon issued his Opinion [not yet available in English! This is something perhaps more incredible than not having CJEU copyright decisions for 2 months] last May, and this blog commented on it here and here. Perhaps the most interesting bit of the Opinion was that parodies that transmit a message that is radically contrary to the deepest, fundamental, values the "European society" [is there really such a thing?, wonders Merpel] should be prohibited.
Other parts of the Opinion were equally interesting, possibly because pretty confusing. For instance, it is not really clear whether the AG thought that parodies should have a humourous intent or also a humourus effect, as he employed both phrases almost interchangeably.
Anyway: let there be light!
A right to be forgotten?
What the CJEU thinks, according to the press release, is that "if a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message." So basically the CJEU is saying that there is sort of a "right to be forgotten" also when it comes to offensive parodies.
|... and its spoof|
As regards the characteristics of a parody (which must be defined in accordance with its usual meaning in everyday language), just two are essential: the first element is "to evoke an existing work while being noticeably different from it"; the second element is "to constitute an expression of humour or mockery."
The above suffices. This means that - differently from the AG Opinion - "a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied." Also, "it is not necessary that it could be attributed to a person other than the author of the original work itself, or that it should relate to the original work itself or mention the source of the work parodied."
A balance is needed and not anything goes
In any case, the CJEU holds the view that "the application of the exception for parody ... must strike a fair balance between, on the one hand, the interests and rights of authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception."
|Me being associated with you? |
You're too funny!
How can this be done? The press release does not say.
In any case it is for the national court "to determine, having regard to all the circumstances of the case, whether the application of the exception for parody does strike a fair balance between the differing interests of the persons concerned."
A more detailed analysis will follow as soon as the decision becomes available.
Meanwhile, mark your diaries: the next *BIG* EU copyright day will be next week. On 11 September, in fact, there will be the CJEU decision in Case C-117/13 Technische Universität Darmstadt [digitisation and Article 5(3)(n) of the InfoSoc Directive] and the apparently revived AG opinions in Case C-419/13 Art & Allposters [basically about everything] and Case C-441/13 Pez Hejduk [jurisdiction in online infringement cases in the aftermath of Pinckney].