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.

Are closed systems of exceptions and limitations outdated? Here are IPKat poll results

How would this Jeremy vote?

On the wave of sexy felon Jeremy Meeks's photographic (and photogenic) success and subsequent hypothetical fan-created fashion campaigns starring this California-based "blue-eyed gang member", on 23 June the IPKat launched a poll [here] asking its readers the following question:

DO YOU THINK THAT EU COPYRIGHT SHOULD HAVE A SPECIFIC EXCEPTION FOR USER-GENERATED CONTENT (UGC)?

The poll closed last night at 23:59 GMT. It attracted 356 votes, so thanks so much to all those who took the time to respond!

An impressive majority (48%, ie 172 votes) thinks that what the EU needs is not just a specific UGC exception, but rather to replace its enumerated system of exceptions and limitations [see Article 5 of the InfoSoc Directive] and go for an open-ended fair use provision, probably modelled on US fair use ("Tell you what! Let's just go for open-ended fair use" was the relevant option). 

Another 20% (73 votes) would favour the introduction of a specific UGC exception ("Yes, it is inconceivable that EU copyright does not have such an exception" was the answer to tick) while maintaining EU-style closed system of exceptions and limitations.

56 readers (15%) think that there is no need for a specific exception, since any lack thereof has not been a deterrent to user creative endeavours ("There's no need, since lack of specific exception for user-generated content has not been a deterrent" was the relevant answer). Curiously, this seems to be currently the position of the EU Commission. In an internal draft of the much-awaited White Paper as leaked by this very blog, the Commission would not appear too keen on having a specific exception for user-generated content. Instead, a combination of different tools could be considered in order to reduce possible grey areas surrounding UGC, including clarifying the application of existing exceptions and limitations and envisaging a licensing mechanism for uses that do not fall within current framework.

With one vote less than those who think that lack of a specific exception for user-generated content has not been really a problem, another 15% (55 readers) believes that the EU should not provide for any additional exceptions, as existing ones are enough, if not too many already (“No way: it seems to me that there are already far too many exceptions” was the relevant option).

A bit more of comment back on the IPKat here.

EU to revise InfoSoc Directive with a FLET approach

Gangnam Style upgraded

Tomorrow the EU Commission will hold an orientation debate on content in the Digital Economy. This will address the points raised in a document released last week (which you can find on the website of  IP Watch), in particular "whether the copyright framework remains fit for purpose in the digital context." [This refrain seems to have become more popular than Gangnam Style, at least in copyright circles]  

Consumers and businesses are said to agree that copyright rules have to be made more flexible and their views were a major factor in the rejection of ACTA. The growth of Pirate Parties in some Member States is another indicator of this trend, explains the document.

Therefore the time is apt for the Commission "to agree on orientations on copyright in the digital economy for the second half of its mandate, taking into account the opportunities and challenges for the full value chain of the internet economy. The European Council has also recognised the need to modernise the copyright system in the Compact for Growth and Jobs."

What the Commission is going to discuss includes the following:

I) The balance of rights and obligations, in particular: the nature and role of the different players in the internet value chain for the production, distribution and consumption of creative content. Particular attention shall be dedicated to user-generated content, aggregators, users' activities online, direct licensing, enforcement.

He's certainly fit and is
also ready to fix copyright

II) The EU copyright framework, as resulting from the InfoSoc Directive. To preserve a fair balance of rights and interests between right-holders and consumers, the directive included a number of possible exceptions and limitations, while leaving significant flexibility to Member States for their transposition. This situation is said to cause fragmentation of the Single Market and legal uncertainty.

Following the adoption of the IPR Strategy in May 2011, the Commission has taken various steps to respond to the challenges of copyright in the digital economy, including the adoption of the Orphan Works Directive, the Memorandum of Understanding on Out-of-Commerce Books, and a proposal for a directive on collective rights management.

But these initiatives have not addressed all the challenges identified above. Therefore, there is a need to review and modernise the copyright framework set out in the InfoSoc directive. In particular, the elements calling for specific consideration are four: Fragmentation - Limitations&Exceptions, Enforcement, Territoriality (FLET, for those who love acronyms or just want to learn things faster).

1.   How best to reduce the fragmentation of the EU copyright market. Currently distinct copyrights exist for the 27 national territories and must in principle be subject to appropriate licensing for distribution in each Member State. Options floated in the 2011 IPR Strategy include the creation of a European Copyright Code, the setting up of an optional unitary copyright title which would exist in parallel with the national regimes, and the obligation of multi-territorial licensing.

2.  The extent to which the current level of harmonisation as well as the scope of the limitations and exceptions to copyright are appropriate for the digital age, given that they were implemented to varying degrees in the Member States.

3.  How to improve enforcement. Any change in the copyright directive will have to be mirrored in parallel revisions of the Enforcement Directive (the IPRED directive). The impact of a possible copyright reform on fundamental rights [have you noticed all those references to fundamental rights in recent CJEU copyright cases?], as well as the consequences on the EU's international obligations in the field and on the EU's position towards third countries would also have to be assessed.

4.  How to mitigate the effects of territoriality in the Internal Market by looking at all options, including introducing a "country of origin" approach or an approach based on the "targeting" of certain publics. [remember what the Court of Justice said in Sportradar (noted here and here)?] This needs to take into account the fact that some restrictions on the provision of services are commercially based and not related to copyright [perhaps the decision in Murphy (noted here) went too far?]

What recipe for EU copyright?

Work to prepare a full revision of the legal framework should be completed by early 2014 so that the Commission is in a position to decide whether to table legislative proposals during this mandate.

III) Specific issues, including cross-border portability, user-generated content, text and data mining,  private copying levies,  the audiovisual sector, and some activities of cultural heritage (in particular format shifting).

The questions which the members of the Commission are called to answer are the following:

1) Do you share this analysis of the developments of the internet economy and its implications for the copyright directive?

2) In particular, do you agree with the terms of the revision of the [InfoSoc] directive outlined in the present note?

3) Do you agree that in parallel rapid progress should be made on the ... issues identified here?  Are there other areas which should be prioritised in the short term?