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| Pastiche Kat |
While waiting to see the actual questions referred to the CJEU, I thought that IPKat readers might be interested in this short preview from the second edition of Copyright and the Court of Justice of the European Union (Oxford University Press), which is going to be released on 5 October.
Any feedback is welcome!
‘Parody’ as an all-encompassing term for ‘pastiche’ and ‘caricature’ too?
The referral in Deckmyn and Vrijheidsfonds, C-201/13 concerned the notion of ‘parody’. In its judgment, the Court specifically focused on that. In his Opinion, however, Advocate General (AG) Cruz Villalón indicated that the notions of parody, caricature and pastiche ‘have the same effect of derogating from the copyright of the author of the original work which, in one way or another, is present in the – so to speak – derived work.’ Since ‘[i]t may be difficult in a specific case to assign a particular work to one concept or another when those concepts are not in competition with one another’, it does not appear ‘to be necessary to proceed any further with that distinction’.
‘Parody’ not the same as ‘pastiche’ or ‘caricature’
Based on this part of the Opinion, one might think that no distinction would need to be drawn between the different concepts referred to in Article 5(3)(k) of the InfoSoc Directive. Such a view, however, would be inappropriate also considering the different everyday meaning of the terms ‘parody’, ‘pastiche’ and ‘caricature’.
More correctly, commentators have indicated that ‘pastiche is close to parody, since both signal that a borrowing has been made, but pastiche relies more on imitation whereas parody aims to adopt a critical stance towards the original work.’ (S Jacques, The Parody Exception in Copyright Law (OUP:2019), 11. For a discussion, see also T Kreutzer, The Pastiche in Copyright Law (Gesellschaft für Freiheitsrechte:2022), available at https://freiheitsrechte.org/uploads/documents/Englische-Dokumente/Democracy/Pastiche_in_Copyright_Till_Kreutzer_GFF_english.pdf, 14-23, and A Godioli – J Young, Humor and Free Speech: A Comparative Analysis of Global Case Law (June 2023), Columbia Global Freedom of Expression, Special Collection, available at https://zenodo.org/record/8105760, 26-27.)
In any event, the difference between ‘parody’, ‘caricature’ and ‘pastiche’ refers to a different field of application of these concepts, not also a broader scope for the relevant exception or limitation or even that ‘caricature’ and ‘pastiche’ are not also autonomous concepts of EU law (Cf A Metzger – M Senftleben (on behalf of the European Copyright Society), Comment of the European Copyright Society on Selected Aspects of Implementing Article 17 of the Directive on Copyright in the Digital Single Market into National Law (2020), available at https://europeancopyrightsocietydotorg.files.wordpress.com/2020/04/ecs-comment-article-17-cdsm.pdf, 13-14, suggesting instead that Member States would be entitled to have their own understandings of pastiche when transposing Article 17(7) of the DSM Directive into national law). This is also because all exceptions and limitations under Article 5 of the InfoSoc Directive are subject to the overarching limit set by the three-step test in Article 5(5).
All this said, it is certain that – like ‘parody’ – ‘pastiche’ and ‘caricature’ are also autonomous concepts of EU law, with the result that they need to receive a uniform interpretation and application throughout the EU territory, consistently with the context in which Article 5(3)(k) is situated and the objectives pursued by the InfoSoc Directive.
Parody, caricature and pastiche as sub-sets of quotation
Instead of conflating the different notions referred to in Article 5(3)(k), a more appropriate way to intend ‘parody’, ‘caricature’ and ‘pastiche’ would be by reference to ‘quotation’ under Article 5(3)(d). It is clear that ‘parody’, ‘caricature’ and ‘pastiche’ are ways through which one’s own freedom of expression and information may be exercised by specifically entering into a ‘dialogue’ with an earlier work or protected subject-matter and/or the ideas conveyed therein.
Such an understanding is also reflected in a recent decision of the Italian Supreme Court [commented here]. In a dispute inter alia concerning the lawfulness of a parody of well-known character Zorro under Italian copyright, the Supreme Court held that a parody is a type of quotation for purposes of criticism or review, in accordance with Article 70(1) of the Italian Copyright Act. The right to criticize and review can be exercised in different ways, including by means of a parody.
Article 5(3)(k) of the InfoSoc Directive would be consistent with this interpretation, and the judgment in Deckmyn and Vrijheidsfonds, C-201/13 would demonstrate that. The fair balance mandate that the CJEU referred to is the limitation which the parodic exploitation of a third-party work or character is subject to, also considering that the CJEU has repeatedly held that the protection of IP under Article 17(2) of the EU Charter is not absolute. The three-step test would be also part of such a mandate: the circumstance that a parody is made for profit does not rule out the very applicability of Article 70(1) of the Italian Act: what matters is not that circumstance, but rather whether the alleged parody unduly conflicts with the normal exploitation of the earlier work.
If the approach indicated by the Italian Supreme Court was to be seen from an international law perspective, then an argument could plausibly be made that sub-sets of ‘quotation’ like ‘parody’, ‘caricature’ and ‘pastiche’ are also mandatory exceptions under Article 10(1) of the Berne Convention (The conclusion of the Italian Supreme Court is not dissimilar in substance from the position persuasively advanced in T Aplin – L Bently, Global Mandatory Fair Use (CUP:2020), 114-125. But cf the thought-provoking points made in A Hui – F Dohl, ‘Collateral damage: reuse in the arts and the new role of quotation provisions in countries with free use provisions after the ECJ’s Pelham, Funke Medien and Spiegel Online judgments’ (2021) 52(7) IIC 852, 883-885.)
In addition, by regarding the ‘fair balance’ mandate as a general principle of EU law, the Italian Supreme Court identified a trend towards a greater visibility of the EU Charter and its Article 52, as well as an understanding of the general EU principle of proportionality as also entailing a fair balance mandate.
Furthermore, in line with more recent CJEU case law (Pelham, C-476/17, para 62; Spiegel Online, C-516/17, para 46; Funke Medien, C-469/17, para 61), the three-step test itself contributes to the fair balance between exclusive rights and exceptions and limitations, including having regard to the guarantee of effectiveness of the latter and compliance with the EU Charter rights and interests.
Pelham II: ‘Parody’ as an all-encompassing term for ‘pastiche’ and ‘caricature’ too?
Reviewed by Eleonora Rosati
on
Thursday, September 14, 2023
Rating:
Reviewed by Eleonora Rosati
on
Thursday, September 14, 2023
Rating:
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Concerning your title question: The wording of Article 5(3)(k) of the InfoSoc Directive with the enumeration of "caricature, parody or pastiche" clearly indicates that the EU legislator did not intend "caricature" or "pastiche" to be understood as subcategories of "parody", but as three different, even if in some cases overlapping, categories. Note the difference from the wording of the older French and Belgian laws, which referred to "la parodie, le pastiche
ReplyDeleteet la caricature" (for France: Art. L.122–5 (4), CPI; for Belgium Art. 22 § 1 Copyright Act 1994). Some parodies may be caricatures, some may involve pastiche, but not necessarily so. Some caricatures may apply parody or pastiche or both, but not all caricatures will. And likewise some pastiches may also qualify as caricatures and / or serve parodistic intentions, while others won't (cf. ZGE / IPJ 14 (2022), 47-51).
Concerning the questions now submitted to the CJEU by the BGH (based on yesterday's press release):
(1) whether the exception for use for the purpose of pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC is a catch-all provision at least for an artistic treatment of a pre-existing work or other subject matter, including sampling:
It's certainly not a "catch-all provision". To put the question in this way already suggests the expected answer.
(2) whether restrictive criteria such as the requirement of humour, imitation of style or homage apply to the concept of pastiche:
Some restrictive criteria may apply. But they need to be developed carefully. With regard to the usage of the term in European languages since the 17th century it would be definitely too narrow to construe the meaning of the concept as requiring either expressions of humour or homage or an imitation of style.
(3) whether the pastiche exception could be understood as a general exception for artistic freedom:
Once more, to ask this question already anticipates that the answer of the Court must be negative, along the line of it's previous Pelham decision (2019).
(4) whether the use "for the purpose" of a pastiche within the meaning of Article 5(3)(k) of Directive 2001/29/EC requires a finding of an intention on the part of the user to use an object of copyright protection for the purpose of a pastiche or whether the recognisability of its character as a pastiche is sufficient for someone who is aware of the copyright object referred to and who has the intellectual understanding required to perceive the pastiche:
Purposes of pastiche have been pursued by countless people over many centuries before the concept was even coined. And it was not a widely discussed concept in criticism in most European languages until quite recently. Making use of the freedom of expression cannot be subject to a university degree in critical theory. So the recognisability of a pastiche for someone who is aware of the object referred to and who has the intellectual understanding required to perceive the pastiche should definitely be sufficient.