BREAKING NEWS: CJEU says that one has the "right to be forgotten" from offensive parodies

You may now breathe:
the CJEU is back!

At last! After a couple of copyright-free months [sounds incredible, doesn't it?], this morning the Court of Justice of the European Union (CJEU) resumed its charmingly busy activity in this area of the law, by telling us all what a parody is pursuant to Article 5(3)(k) of the InfoSoc Directive. 

It did so in its decision in Case C-201/13 Deckmyn, a reference for a preliminary ruling from Belgium. The decision is yet to be made available, but we have the relevant press release [UPDATE @10:38am: the judgment is now available here]

Background

As readers will remember, the background national proceedings concern a (Kat-free) calendar that was distributed during a public event on New Years Eve 2011, and whose cover reproduced a modified version of the cover to a well-known Suske en Wiske 1991 comic book in order to illustrate the ideas of Flemish nationalist political party Vlaams Belang.

The court of first instance granted an interim injunction to prevent further distribution of the calendar, finding that its cover infringed copyright in the comic book. The decision was appealed before the Brussels Court of Appeal on grounds that - among other things - the cover fell within the scope of Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright Act. The Court of Appeal decided to stay the proceedings and seek guidance from the CJEU as to the following:

The original work ...

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?

The AG Opinion

Advocate General (AG) Cruz Villalon issued his Opinion [not yet available in English! This is something perhaps more incredible than not having CJEU copyright decisions for 2 months] last May, and this blog commented on it here and here. Perhaps the most interesting bit of the Opinion was that parodies that transmit a message that is radically contrary to the deepest, fundamental, values the "European society" [is there really such a thing?, wonders Merpel] should be prohibited. 

Other parts of the Opinion were equally interesting, possibly because pretty confusing. For instance, it is not really clear whether the AG thought that parodies should have a humourous intent or also a humourus effect, as he employed both phrases almost interchangeably. 

Anyway: let there be light! 

A right to be forgotten?

What the CJEU thinks, according to the press release, is that "if a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message." So basically the CJEU is saying that there is sort of a "right to be forgotten" also when it comes to offensive parodies.

... and its spoof

What is a parody?

As regards the characteristics of a parody (which must be defined in accordance with its usual meaning in everyday language), just two are essential: the first element is "to evoke an existing work while being noticeably different from it"; the second element is "to constitute an expression of humour or mockery."

The above suffices. This means that - differently from the AG Opinion - "a parody need not display an original character of its own, other than that of displaying noticeable differences with respect to the original work parodied." Also, "it is not necessary that it could be attributed to a person other than the author of the original work itself, or that it should relate to the original work itself or mention the source of the work parodied."

A balance is needed and not anything goes

In any case, the CJEU holds the view that "the application of the exception for parody ... must strike a fair balance between, on the one hand, the interests and rights of  authors and other rights holders and, on the other, the freedom of expression of the person who wishes to rely on that exception." 

Me being associated with you?
You're too funny!

What does this mean? It means that if a parody "conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour [as it is the case here]), the holders of the rights to the work parodied have, in principle, a legitimate interest in ensuring that their work is not associated with such a message."

How can this be done? The press release does not say.

In any case it is for the national court "to determine, having regard to all the circumstances of the case, whether the application of the exception for parody does strike a fair balance between the differing interests of the persons concerned."

***

A more detailed analysis will follow as soon as the decision becomes available.

Meanwhile, mark your diaries: the next *BIG* EU copyright day will be next week. On 11 September, in fact, there will be the CJEU decision in Case C-117/13 Technische Universität Darmstadt [digitisation and Article 5(3)(n) of the InfoSoc Directive] and the apparently revived AG opinions in Case C-419/13 Art & Allposters [basically about everything] and Case C-441/13 Pez Hejduk [jurisdiction in online infringement cases in the aftermath of Pinckney].