In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com
Tuesday, 18 November 2014
Still thinking of Deckmyn, parodies and EU copyright? You are not alone!
The original work ...
On 3 September 2014 the Grand Chamber of the Court of
Justice of the European Union (‘CJEU’) issued its decision in Deckmyn[here, here, here].
As 1709 Blog readers will remember, this was a reference for a preliminary ruling from the Brussels court of
appeal, seeking clarification as to the notion of parody under Article 5(3)(k)
of the InfoSoc Directive.
This provision allows Member States to introduce
into their own copyright laws an exception or limitation to the rights of
reproduction, communication and making available to the public, and/or
distribution, for the purpose of caricature, parody or pastiche. It does
so without providing a definition of these concepts.
Having clarified that ‘parody’ is
an autonomous concept of EU law, in its ruling the CJEU held that this must be
understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first,
to evoke an existing work while being noticeably different from it and,
secondly, constitute an expression of humour or mockery.
... and its alleged parody
The CJEU also stated
that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated
with the message conveyed by its parody if it is discriminatory/racist.
I was very much intrigued by Deckmyn, as it also seems to me that this decision is not limited to parody, but is indeed topical
to EU debate on copyright exceptions and limitations in Article 5 of the
InfoSoc Directive, as well discourse around activism – rather than mere
activity – of the CJEU in this area of the law.
Similarly to what has happened in relation to other
aspects of copyright, eg the originality requirement and the notion of work – also
in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.
So, I decided to write an article on this (entitled Just a matter of laugh? Why the CJEU decision in Deckmyn is broader than parody), which has now been accepted for publication in the Common Market Law Review.
My contribution is divided into two parts. The first part explains the background to this
reference, and summarizes the Opinion of Advocate General Cruz Villalón
on 22 May 2014[here] and the
subsequent findings of the CJEU. The second part discusses specific aspects of
the Opinion and the ruling. First, the practical implications of the decision
are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force
of Article 5 of the InfoSoc Directive, as well as whether this ruling has
introduced trade marks concepts into EU copyright (notably tarnishment), or
even harmonized moral rights.
If you are interested in these issues, you can find my article on SSRN here.