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.

Wednesday, 3 September 2014

BREAKING NEWS: CJEU says that one has the "right to be forgotten" from offensive parodies

You may now breathe:
the CJEU is back!
At last! After a couple of copyright-free months [sounds incredible, doesn't it?], this morning the Court of Justice of the European Union (CJEU) resumed its charmingly busy activity in this area of the law, by telling us all what a parody is pursuant to Article 5(3)(k) of the InfoSoc Directive

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 court of first instance granted an interim injunction to prevent further distribution of the calendar, finding that its cover infringed copyright in the comic book. The decision was appealed before the Brussels Court of Appeal on grounds that - among other things - the cover fell within the scope of Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright ActThe Court of Appeal decided to stay the proceedings and seek guidance from the CJEU as to the following:

The original work ...
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?

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
What is a parody?

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!
What does this mean? It means that if a parody "conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour [as it is the case here]), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message."

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].


Michael Factor said...

This is scary. The whole point of parody is to be subversive.

The parodied may object, but as long as the parody is clearly parody and there is no likelihood of confusion, it should be allowed.

I don't expect that Nazi Germany showed the Great Dictator when it first came out, but modern Europe is not supposed to be a totalitarian state without freedom of expression.

Sometimes Satire is in poor taste and it can legitimately be criticized. The current decision makes Goodness Gracious Me's sketches illegal. It's rediculous.

SG said...

"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."

That's not how I read it. Aren't they talking about the person holding rights in the parodied work? i.e. the person who created the work that the parody adapts? This is usually not the person being mocked in said parody, so I don't see how it relates to a "right to be forgotten".

Ashley Roughton said...

Well said Michael. My initial reaction was "Not another instance of the tired plodding horse of overall assessment ... please!" but I wish it had been what Michael said.

My reading of the judgment is that the work comprising the creative effort of the author (sometimes called the expression of their personality by our other European colleagues) and the repute of the subject of the work are conflated. In other words denigration of the subject (of the work) is the same as the denigration of the work itself.

Either that or (once again) it is a badly translated judgment - I have not got time to look into it. For an example of badly translated judgments, I commend reading paragraph 80 of the Google decision in both Spanish and English. You have to be a Spanish speaker (as I am) to see how bad (and terrifyingly inaccurate) the translation is.


Michael Factor said...

One of the reasons I read the IP Kat is that I appreciate the parody and satire.

I can imagine that some Freddy Mercury fans may have been terribly upset a few months ago.

We've had a couple of cases of parody in Israel.

During the mass demonstrations against Oslo, posters of Itzhak Rabin wearing an SS uniform were stuck on walls. Certainly poor taste, but I don't think that that type of expression could legitimately be called incitement. After Rabin was murdered it actually transpired that the posters were the work of the Internal Secret Service (Shabak not Mossad), and not right wing extremists.

A neighbor of mine Michael Netzer, who, as Michael Nasser used to illustrate comics for DC and Marvel in the Sixties, made a parody statue of Arafat holding a US flag that was positioned opposite the American Consulate in Jerusalem. The Americans petitioned the court, and then Chief Justice Barak allowed the statue to remain as being legitimate parody and freedom of expression.

Both cases above are public interest freedom of speech.

There is an Israeli children's adventure series called the Samba 5 that I understand has some similarities to Enid Blyton's various series (Famous Five, Secret Seven, etc.). The author managed to get an injunction against a book describing the characters in middle age, where a couple had married, there was an affair, one was homosexual, problems of obesity, etc.

I can see why such an author might see such a parody as problematic, but the books represented the childhood of the readers who are now adults.

I think she did get an injunction against the book.

The problem is that very many political cartoons in newspapers, a not inconceivable amount of political columns, and satirical programs on TV are often offensive to those being ridiculed, which often includes clergy and politicians.

Sometimes satire is poor taste, often it is offensive, but it is important in a democracy. One can argue about the value of blasphemy laws, but these should be strictly limited.

Anonymous said...

The next big copyright day is in fact today -the judgment in C-114/12 Commission v Council has been handed down. The Union (and not MS) is exclusively comptetent in the area of amongst other rights, the rights of broadcasting organisations. Whilst the judgment is about competence (powers)of the Union in the context of international negotiations what it arguably means in practice is that MS are not free to legislate in this or any other area of IPR. This follows the judgment in Daichi of last year.

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