EU High Court Parody Ruling Could Create Problems, IP Attorneys Say

A 3 September European Court of Justice decision on the concept of “parody” is a controversial attempt to harmonise copyright law judicially where legislative efforts have failed, and raises more questions than it answers, intellectual property lawyers said. But the decision won’t affect implementation of the United Kingdom’s new copyright exception for parody, the UK Intellectual Property Office said.

The case, Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others, arose from the January 2011 distribution of a calendar whose front page contained a drawing resembling the cover of a 1961 comic book, “De Wilde Weldoener,” which roughly translates as “The Compulsive Benefactor,” the court said. Deckmyn handed out the calendar at a reception by the City of Ghent, Belgium.

The drawing at issue was similar to that of the comic book, which showed one of the main characters wearing a white tunic and throwing coins to people trying to pick them up, the decision said. In the calendar drawing, that character was replaced by the mayor of Ghent, and the people snapping up the coins were replaced by people wearing veils and people of colour, the court said.

Vandersteen and the other complainants claimed the drawing infringed their copyrights. Deckmyn claimed it fell within the scope of parody under Belgian copyright law, which implements the 2001 EC directive (2001/29/EC) on harmonisation of certain aspects of copyright and related rights in the information society.

Complainants disputed that interpretation, arguing that parody must meet certain criteria that hadn’t been met. It must: (1) Fulfil a critical purpose; (2) Itself show originality; (3) Display humorous traits; (4) Seek to ridicule the original work; (5) Not borrow a greater number of formal elements from the original work than strictly necessary to produce the parody. Vandersteen and the others alleged that the drawing conveyed a discriminatory message.

The Brussels Court of Appeal asked the ECJ to determine whether the concept of parody is harmonised across EU law, and if so, what conditions a work must satisfy to be capable of being called parody.

The EU high court ruled that the concept of parody must be interpreted uniformly throughout the EU despite the fact that the exception itself is optional – that is, governments do not have to adopt the exception.

Moreover, it said, since the 2001 copyright directive gives no definition of parody, the meaning and scope of the term must be determined by considering its usual meaning in everyday language. Hence, “the essential characteristics of parody are, first, to evoke and existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery.” It’s not apparent from the usual meaning of the work, or from the language of the directive, that the concept is subject to the conditions claimed by the Vandersteens, the court said.

In addition, copyright exceptions seek to achieve a “fair balance” between the rights and interests of authors and the rights of users of protected subject matter, the court said. Therefore, the parody exception must strike such a balance, it said. The determination of whether application of the exception preserves that balance must be made case-by-case, it said.

In this case, it’s for the national court to decide whether the picture of people wearing veils and people of colour conveyed a discriminatory message, the ECJ said. In such circumstances, holders of rights under the directive have, in principle, a legitimate interest in ensuring their copyright work isn’t associated with such as message, it said.

ECJ “Policy Agenda”

This is a “pretty controversial decision,” said Baker & McKenzie (London) partner Ben Allgrove. It raises questions about the nature of parody itself as well as about the scope of the copyright directive and harmonisation of EU copyright law, he said.

“You can read the ECJ as saying that parody must be intended to be funny and in fact be funny in practice,” Allgrove said. The law now seems to except “good” parodies but not “poor” ones, he said. “Furthermore, many parody exceptions in national law cover parody, pastiche and satire, allowing a range of funny and not-funny works,” he said. “It’s not clear how this decision impacts these wider categories.”

A second issue is that the ECJ said if EU countries choose to have an exception for parody, it can’t fine-tune what’s in the copyright directive’s optional exception list, said Allgrove. That position is different from the view of many IP practitioners that national laws could allow a smaller range of options, he said. According to the ECJ, once a government chooses to grant a particular exception, it must be the same as every other member states’ – a fairly controversial stance, he said.

There’s “no doubt in my mind” that the high court is “engaging in a policy agenda” aimed at forcing greater harmonisation of copyright law where the European Commission has been unable to do so via legislation, Allgrove said. The decision is part of a trend toward limited tolerance for divergence on copyright among member states, he said.

Another part of the ruling “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,” University of Southampton IP lecturer Eleonora Rosati wrote on the IPKat blog. That’s because the copyright directive tries to balance the rights of authors and creators with those of users of copyrighted material, she said.

The ECJ ruling says that in practice, rightholders have a “legitimate interest” in seeing that their works aren’t associated with offensive messages in parodies, Rosati wrote. But how can that be done without prohibiting the parody, and whose standards determine offensiveness? This part of the judgment “creates more problems than it solves” and leaves it to the referring court to resolve, she said.

[Update:] The European Copyright Society in a 1 November opinion [pdf] welcomed the high court’s departure “from the doctrine of strict interpretation of exceptions and limitations in cases in which fundamental rights such as freedom of expression are involved.” The ECS warned, however, against attempts to limit the exception to non-discriminatory expression, saying copyright law shouldn’t apply a “more exacting standard than public or criminal law” to deal with racist or other hate speech.

UK Impact?

The UK recently adopted several copyright exceptions that will come into force on 1 October (IPW, Copyright Policy, 1 August 2014), one of which is parody.

Deckmyn will have no effect on the implementation of the exception, the UKIPO said. “As with all EU case law, the judgment of the ECJ in Deckmyn will be taken into account in interpreting the law in the UK,” it said in an email.

It’s not clear whether a British court faced with the issue will have to decide not whether a parody is intended to be humorous, but whether it actually is, Allgrove said. The question is: Who gets to make that decision?