Early thoughts on Deckmyn: fun is OK, but only if politically correct

Following the delivery
of this new CJEU decision,
Pushkina is carefully
inspecting the parcel

Following the breaking news post published this morning [see also The 1709 Blog here], the handy 36-para decision of the Court of Justice of the European Union (CJEU) in Case C-201/13 Deckmyn has become available.

Besides the question whether short judgments have become a thing [do you remember those legendary times when CJEU rulings were - to say the least - 200-para long?], the press release itself prompted some questions, including: How might one practically avoid being associated with a a parody of his/her work that conveys a discriminatory message? What is the threshold beyond which a parody is no longer acceptable and according to what standards should this be determined? 

This Kat optimistically thought that the judgment would shed some light ...

Quick recap

This case concerned the notion of parody pursuant to Article 5(3)(k) of the InfoSoc Directive. The CJEU had to address the following questions:

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?

There are several interesting bits in this decision:

There are fashion rules and ...
1) In search of (in)flexibilities? You bet

The first question was not really problematic: there is consistent CJEU case law [as recent copyright-related examples, see the decisions in ACI Adam, VG Wort ,TV2 Danmark, and Padawan] that suggests that it follows from the need for a uniform application of EU law and the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States [as is the case of Article 5(3)(k) of the InfoSoc Directive] must normally be given an independent and uniform interpretation throughout the EU. 

This is what the Court stated in Deckmyn too with regard to the notion of parody.

It is however interesting to note what is said at para 16 after the clarification that such conclusion is not invalidated by the optional nature of the exception mentioned in Article 5(3)(k): "An interpretation according to which Member States that have introduced that exception are free to determine the limits in an unharmonised manner, which may vary from one Member State to another, would be incompatible with the objective of that directive".

... and InfoSoc-zero tolerance rules
Does this mean that once Member States have decided to import a certain exception from Article 5 catalogue into their national laws, then they cannot alter the scope of the resulting national exception as they please?

In the past ifluential commentators have held the view that in most cases Article 5 ‘shopping list’ would be composed of categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of discretion at the stage of national implementation. 

This is indeed what has happened in practice, but may be (now) wrong [see here].

In its decisions in ACI AdamTV2 Danmark and, prior to these, Padawan, the CJEU seemed to suggest that, unless where the InfoSoc Directive leaves it to Member States to fine-tune the scope of resulting exceptions and limitations, it is not possible for them to alter the scope of the exceptions and limitations that they have decided to transpose into their national regimes.

Deckmyn is another addition to this (new) course of the CJEU, ie zero tolerance for diverging national approaches. 

So: how many WRONG national copyright laws are still out there? This question may prompt those involved in national copyright litigation to push for new references for a preliminary ruling to the CJEU.

Not here, Don
2) How can a parody not be original?

The CJEU decided to examine the second and third questions together.

A parody mus be understood according to its "usual meaning in everyday language[what does this mean? You have been litigating for years over the notion of parody and have now ended up before the CJEU, that tells you that a parody is ... a parody] and has just two essential characteristics: (1) to evoke an existing work while being noticeably different from it, and, (2) to constitute an expression of humour or mockery.

There are no other requirements according to the Court. In particular a parody does not have to be original. But how can a parody be "noticeably different" from the earlier work and "constitute an expression of humour or mockery" if it does not even display a modicum degree of originality? Wouldn't an un-original parody be just a copyright infringement?

Parody as (politically correct) freedom of expression
The final part of the judgment is likely to raise controversy even outside copyright circles, in that freedom of parody as an expression of one's own opinion is not unlimited.
EU-approved comedian
This is also because, as stated in recital 31 in the preamble to the InfoSoc Directive, copyright exceptions seek to achieve a ‘fair balance’ between, in particular, the rights and interests of authors on the one hand, and the rights of users of protected subject-matter on the other.
What does this mean in practice? According to the CJEU (at para 31), it means that one has a "legitimate interest[a phrase which comes from the world of administrative law: what does it mean copyright-wise, ie a world dominated by relationships between individuals?] "in ensuring that the work protected by copyright is not associated[how can this be done if not by prohibiting the parody?] with the offensive [according to what standards?] message conveyed by the parody.
This part of the judgment creates more problems than it solves, and leaves them all to the referring court to address. 
Besides the fact that standards of morality and taste change over time all the time, isn't one of the main purposes of a parody to be - to say the least - irreverent and use "humour or mockery" to also stand against conformism and what is socially acceptable? Or does the CJEU rather wish the EU to become the perfect set for the next remake of The Stepford Wives?
What do readers think?
Early thoughts on Deckmyn: fun is OK, but only if politically correct Early thoughts on Deckmyn: fun is OK, but only if politically correct Reviewed by Eleonora Rosati on Wednesday, September 03, 2014 Rating: 5


Anonymous said...

Political Correctness is all politic and no correct.

Anonymous said...

The above approach sounds very much like one would expect from a fair dealing approach.

I note that, importantly, the court has ruled that the work used in the parody does not itself have to be the subject of the parody.

As for the contention that Member States do not have discretion over implementation of exceptions, I don't think this is what the Court means. Member State do have discretion to implement narrower exceptions, but cannot implement an exception which is wider than the categories set out in the Copyright Directive.

Advocate General Sharpston, at paragraph 37 of her Opinion in the Wort case explains the situation thus:

37. First, an exception or limitation to the reproduction right which goes farther than what is authorised by one or other of the provisions of Article 5(2) or (3) will be incompatible with the Directive. However, given the optional nature of the provisions and the possibility of introducing a limitation rather than an exception, a measure which goes less far will be compatible. For example, a Member State may not, on the basis of Article 5(2)(b), provide for an exception for all reproductions made by a natural person on any medium, without reference to the purpose for which they were made, since that would extend the scope of the exception beyond what is authorised by that (or any other) provision. Conversely, it may, still on the basis of Article 5(2)(b), lay down an exception for reproductions made by a natural person only when they are made on paper and exclusively for the purpose of private study, since the scope of that exception would be narrower than, but still fully encompassed within, what is authorised.

This conclusion is also supported by the judgment in Wort, and various other cases.

François Coppens said...

Such a bad ruling in my opinion...what is the point of defining parody and prohibiting all those little additional conditions that member states have been adopting over time if the Court then opens the Pandora box of possible arguments to refuse the benefit of the exception ?

The regime of exceptions aims at striking a balance between the interests of right holders and those of the public. It does certainly not mean that the "legitimate" interests of both parties must be balanced in every single application of each exception.

This is even worse than the broadest application of the three-step tests in individual cases that we have had nightmares about.

I wonder how this judgement will be analyzed from a fundamental rights point of view. It certainly creates (or makes apparent) a restriction to the freedom of expression, which has to respect the conditions of article 10,§2 of the ECHR. I'm not convinced it does. Comments on this point would certainly be very interresting.

Howard Knopf said...

Dear Eleonora:

Well, this could be a slippery slope. Could there potentially be developing a big humour gap between the EU and the rest of world – at least with the USA? One wonders how the CJEU, in light of this decision, would have looked at the raunchy and arguably anything but “politically correct” rap lyrics of the 2 Live Crew parody lyrics of “Pretty Woman” that pretty soon turns into “Big Hairy Woman” and go rapidly downhill from there….

But it was fine for the US Supreme Court in 1994. See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) http://www.law.cornell.edu/supct/html/92-1292.ZO.html

I've offered the same comment over at Jeremy's 1709 positing on this decision.


Anonymous said...

the slippery slope slides into a quick morass based on exactly who gets to decide what.

1984 comes to mind.

Anonymous said...

Where did they get the idea that "the parody cannot reasonably be ascribed to the author of the original work"? If you watch the Roobarb episode "When Custard Stole The Show" there is a bit at the end with Custard running, under the name "Custard", which is clearly a parody of the show's title sequence - but this is presumably from exactly the same author! Is the referring court really ignorant of such works of culture?

Eleonora Rosati said...

@Anonymous on Wednesday, 3 September 2014 17:16:00 BST: Thanks for your comment. See also ACI Adam for narrower exceptions.
As to the distinction between exceptions and limitations, I have my reservations about AG Sharpston's Opinion, as the phrase "exceptions or limitations" comes from the language of international copyright and has been historically linked to the different language (and understanding) of droit d'auteur (limitations) vs copyright (exceptions) traditions. See tinyurl.com/p6mh9fm, p 2.
There are exceptions (or limitations) in Art 5 that allow fine-tuning (eg Article 5(2)(c) which refers to
“specific acts of reproduction” to be defined at the national level) and other that do not (eg Art 5(2)(a), (b), (d) (e), and Articles 5(3)(d), (f), (h), (i), and (m)).

@Howard: I guess that in the end much will depend on the sense of humour of the author of the parodied work ... Whether this is the right solution is debatable though.

George said...

The new PETA campaign against Fortnum & Masons also raises some concerns about the neccessity for an element of humour and mockery in the parody. The PETA campaign seeks to rely on the copyright exception for parody, but it clearly does not contain any humour. Mockery? Perhaps at a push. This, in my opinion, comes down to the distinction between parody and satire. Satire needs no element of humour because the intent of satire is to teach a lesson. Does the Deckmyn decision create a gap in protection for those who copy a copyright work in order to satirise it? Thoughts please.

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