|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.
I'm not convinced that the Deckmyn judgment has implications for moral rights. The court seems to be addressing throughout the rights holders (i.e. copyright owners), and it is their "legitimate interests" that the court is saying should be protected/balanced against the parodyist's freedom of expression rights. This is based upon the requirement in the Berne three-step-test that exceptions such as the parody exception should not unreasonably prejudice the legitimate interests of the copyright owner. Even if those legitimate interests are fundamentally economic rather than moral/personal, they can still be prejudiced by reputational damage through association with (for example) discriminatory parodies.
Thanks for you comment, Anonymous! In the article I suggest that "legitimate interest" might be read from both a public law (non-discrimination) and private law perspective (three-step test, trade mark, moral rights). I think that in some cases the "legitimate interest" would be considered a moral right. If so, then the CJEU might have defined the scope of such legitimate interest.
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