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?