ECS’s Opinion on Pelham II and its potential implications for AI-generated pastiches – Part 1

On 6 November last, the European Copyright Society (ECS) published its Opinion on CG and YN v Pelham GmbH and Others, Case C-590/23 (Pelham II), which is currently pending before the Court of Justice of the EU (CJEU) [IPKat here and here]. By referring the case once again to the CJEU, the German Federal Court of Justice (BGH) sought to get clarification on the meaning and scope of the pastiche exception to copyright. While waiting for the Advocate General (AG) Opinion and the CJEU ruling, the ECS came up with its own Opinion, in which it provided four options that CJEU can adopt to define pastiche. The ECS opined that pastiche and parody should be treated as “distinct artistic expressions” having “at least partially … distinct legal requirements”.

A Kat reading ECS's Opinion on Pelham II

Recap on the Pelham saga

As dedicated readers and copyright exceptions enthusiasts would remember, the Pelham saga has a two-decade-long prosecution history [IPKat here]. However, for those who are still enjoying the holidays [Merpel: Oh, I definitely am!] and therefore, struggle to remember the legal battle over the two-second sampling of Metall auf Metall in Nur Mir, here is a brief recap:

At the national level, the last decision – before the 2017 referral to the CJEU – of the BGH was that the reproduction of any part of a sound recording constituted copyright infringement unless it was impossible for the unauthorised party to recreate the relevant sample without reproducing it. Mr. Pelham challenged this decision before the German Federal Constitutional Court, arguing that, with this decision, his artistic freedom under Article 5 of German Constitution was unreasonably limited. Agreeing with Pelham, the Constitutional Court referred the case back to the BGH, which then initiated a preliminary ruling procedure at the CJEU, essentially asking about the lawfulness of unlicensed music sampling under EU copyright law (Pelham I, Case C-476/17).

The CJEU put an end to the first round by holding that, if the sample taken from a sound recording is used “in a modified form unrecognisable to the ear, in a new work”, then such use cannot constitute infringement [para 31].

Another point decided by the CJEU, which seems to be more relevant to Pelham II than to Pelham I, was the unsuitability of section 24 of German Copyright Act (UrhG) – which provided for a US fair use-like clause – with the aims of providing a closed list of exceptions by Directive 2001/29/EC (InfoSoc) [paras 63-64]. Accordingly, the national court ruled that, although it might have been a lawful use of the said sample until the implementation of InfoSoc in 2001 (under section 24 UrhG), it would no longer be possible to consider Pelham’s use as fair or lawful given the repeal of section 24 UrhG.

The second round of the Pelham saga, as suggested by AG Szpunar in his Opinion on Pelham I [para 70], revolves around the applicability of the pastiche exception to Mr. Pelham. Since the last referral to the CJEU, the concept of pastiche has been incorporated into the German copyright law under section 51a UrhG, following the obligations imposed on EU Member States by Article 17(7) of Directive (EU) 2019/790.

With the introduction of this new exception, Pelham got a second chance to contest the infringement claims, however, not without the involvement of the CJEU, as the BGH once again stayed the proceedings and referred the case to the CJEU, seeking clarification on the meaning and scope of the exception (Case C-590/23).

ECS’s Opinion on Pastiche

a. How to approach to pastiche?

In its Opinion, the ECS lists four options that the CJEU can adopt in answering BGH’s questions regarding the definition of pastiche. The first two options are based on treating parody and pastiche (and also caricature) as “identical artistic expressions”, given that they are provided under the same provision (Article 5(3)(k) InfoSoc). It is suggested that these identical practices could demand either identical or distinct legal requirements.

Comment: While straightforward and pragmatic, the first scenario risks oversimplifying diverse artistic practices and could unreasonably limit third parties’ freedom of the arts. Moreover, if the aim of InfoSoc were to refer to a single artistic practice that permits imitating parts of copyright works and to illustrate it with some synonyms, InfoSoc could have used terms like “imitate”, “copy”, or “sample”; instead of naming specific artistic practices. In other words, if the purpose of Article 5(3)(k) were to allow imitation for artistic purposes, InfoSoc would have used a broader language to reflect that intent, rather than listing three specific artistic practices. The second scenario, however, seems even more problematic, since it would be utterly absurd to impose different legal requirements on the same artistic practice on a case-by-case basis.

The third and fourth options, on the other hand, are to treat parody, pastiche, and caricature as “distinct artistic practices” that could either demand identical or distinct legal requirements.

Comment: If different artistic practices are introduced to copyright law and are to benefit from exceptions, then it would be unreasonable to expect them to meet the same legal standards. As exemplified by the ECS’s Opinion, accepting that parody and pastiche are distinct artistic practices conflicts with the idea that pastiche works must be humorous or mocking – qualities already inherent to parody. Thus, the principles of legal certainty and consistency would be undermined if the CJEU were to recognise the differences between the three exceptions listed in Article 5(3)(k) InfoSoc, yet interpret pastiche depending solely on its ruling on parody in Deckmyn (Case C-201/13), requiring imitations to have elements of humour or mockery to qualify for the pastiche exception.

The final option, endorsed by the ECS, is to treat parody, pastiche, and caricature differently, emphasising their nuances and unique characteristics.

Comment: This approach would be the most consistent, as it acknowledges the merits of each practice mentioned in Article 5(3)(k) InfoSoc, respects their intricacies, and avoids unreasonably limiting users’ artistic freedoms – or indeed rights. However, adopting an approach that differentiates the meaning of pastiche from that of parody does not and should not mean that nothing from the Deckmyn judgment is applicable to the other exceptions listed under the same provision. In other words, the foundational principles established by Deckmyn for parody, should also be kept in mind while defining pastiche, especially because of the significance of the statutory context in the process or interpretation. It would be inconsistent to treat parody as an autonomous concept, while not requiring the same for the pastiche exception, which is addressed by the same provision as parody. Likewise, the “usual meaning in everyday language” of pastiche, together with “the context in which [pastiche] occurs and the purposes of the rules of which it is part” should be considered while constituting the meaning of pastiche.

 

b. What should pastiche mean, then?

The ECS identifies several features of pastiche that could be adopted by the CJEU. According to the ECS, pastiche (i) “cannot be intended as a mere imitation of an artistic style” and (ii) “should not require an explicit interaction with the original work”. Moreover, neither (iii) humour or mockery, nor (iv) originality of the resulting work should be necessary requirements for the pastiche exception to be applicable.

To be continued...

These observations on the definition of pastiche offer much food for thought and will be revisited in the new year. For now, though, this Kat will take a pause to continue enjoying the festive season – perhaps by playfully batting at the decorations on her Christmas tree before they disappear for another year...

Image credits: ChatGPT