Nexus

A matter of intended or actual laugh? The parody exception under EU and UK laws

Read

Gigi is invariably
great fun to watch ...

A few days have passed since Advocate General (AG) Cruz Villalon issued his Opinion [not yet available in English: will it ever be?] in Case C-201/13 Deckmyn [here], and even more time since UK IP Minister Lord Younger announced that adoption of proposed parody, caricature and parody exception had been [indefinitely?] delayed.

While waiting for further developments in this engaging UK copyright policy saga, a question that has probably arisen in the minds and hearts of parody-loving folks is whether the scope of proposed UK exception is the same as that of the relevant exception under Article 5(3)(k) of the InfoSoc Directive, at least as the AG understood it.

Well, it would seem that the answer may not be a resonant 'Yes!' after all.

This conclusion may follow consideration of whether it suffices that a parody has a burlesque/humourous intention or it is also necessary that it produces a burlesque/humourous effect.

... But does this produce
a humourous effect?
Does it have to?

Starting with the proposed UK parody, caricature and pastiche exception, although the Intellectual Property Office's Guidance for those using copyright works to create new content defines parody as imitating a work for humorous or satirical effect, proposed Section 30A(1) of the UK Copyright, Designs and Patents Act does not mention any such effect. This provision would in fact simply state that: "Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work".

When formulating his conclusions, AG Cruz Villalon merely referred to "burlesque intention" as a requirement of parody.

However, when considering the effect of a parody, he held that it is a common understanding that a parody must have a somehow humorous effect, and that it is left to Member States [national courts?] to define what is humorous, also depending on different national sensitivities.

At paras 67 to 69 of his Opinion the AG stated [WARNING: Kat-translation] that: "parody pursues a specific effect, which somehow follows as a necessary consequence of the ri-elaboration of an earlier work. It is this selective reception, so to say, that must produce a certain effect on the recipients, lacking which the parody is a total failure ... Provided that one can refer to «burlesque» as a common term to describe the intentional dimension of a parody, I believe that Member States enjoy a great degree of discretion to determine if the work in question displays this feature of parody."

While it seems clear that a parody must pursue a burlesque intention, from the Opinion itself it is not really clear whether it also necessary that it produces a burlesque effect.

If the latter was the case, do you think that the work at stake in Deckmyn - which clearly pursued a [questionable?] burlesque intention - would be recognised as a parody ? In other words: does that calendar cover produce a burlesque effect?

Is that enough?

Furthermore, if a humourous effect was required, how easy would it be to find it when there are parodies that are deeply linked [as it is the case in Deckmyn] to specific national realities?

Should the humorourous effect be assessed: (a) only in relation to the particular Member State in which the case is litigated; (b) the broader "European society" to which the AG referred when conducting his fundamental rights analysis; or (c) even the notion of an 'average EU consumer' of copyright-protected content [this trademark-specific notion does not (yet) exist in the EU copyright world, but may well be developed if one starts importing - see Deckmyn questions and AG Opinion - trademark-specific concepts such as that of confusion].

Hopefully the CJEU will clarify whether parody is just about burlesque/humorous intent [as it should be, says Merpel] or also something else, say a burlesque/humourous effect.

Certainly, if the latter was the case, then UK proposed exception - despite reference to "fair dealing" - might be considered broader than the corresponding exception in Article 5(3)(k) of the InfoSoc Directive [by the way, if you are interested in discussing all this further, here's an event for you] ...

What do readers think?

Read More Add comment

Yellow Pages Spider 3.28 Cracked

By 0x000216

Read

0 Comments

Read More Add comment

tutorial - atunes - iTunes/Winamp/Amarok killer

By 0x000216

Read

0 Comments

Read More Add comment

WPF XAML and BAML: XAML Introduction, Advantages and Compilation

By 0x000216

Read

0 Comments

WPF XAML and BAML: XAML Introduction, Advantages and Compilation

This article on WPF XAML covers basic concepts of XAML, Advantages of using XAML into WPF, how XAML elements are related with .NET classes and how XAML in actually compiled in WPF applications. We will get an idea on how WPF XAML code is converted into the BAML and again how BAML code is converted into the XAML and the role of InitializeComponent() method in the process.

XAML stands for Extensible Application Markup Language and is mainly used to create WPF user interface. XAML is also used in Silverlight and WF (Windows Workflow Foundation). You can create XAML using Visual Studio as well as Expression Blend. Basically Visual Studio is for developers and Expression Blend is for designers.

Advantage of XAML in WPF applications

In WPF, due to the introduction of XAML, graphical designer can separately work on user interface and developers can concentrate on the main logic. But it was not possible in Windows Form because any visual element such as label, textbox, button you create in Windows Forms are defined in C# classes. So, the designer could not do anything in that. All the user interface thing had to be taken care by developer itself. Designers could make separate mock-ups for screens in Photoshop etc. which developers had to convert in the C# code which was very much painful. But WPF XAML changed the world. Now designers can directly make screens for developers in XAML and developers just have to bind the elements in the screen with the properties they have made in their C# code.

Relation between XAML Elements and .NET Classes

Every element in XAML document maps to an instance of .NET class. The name of the element matches to the name of the .NET class. For example, the element Button in XAML instructs WPF to create an object of Button class in .NET. XAML element attributes are used to set the properties of .NET classes.

Note: XAML is case-sensitive language.

For example: You cannot write below XAML code

like this

Conversion of XAML into BAML: XAML Compilation

When you compile your WPF application, all your XAML code is converted into the BAML (Binary Application Markup Language) by XAML parser and is embedded as a resource into the final DLL or EXE. BAML is nothing but the binary representation of XAML. BAML is tokenized, which means lengthier bits of XAML are replaced with shorter tokens. Not only BAML is significantly smaller, but it is also optimized in a way that makes it faster to parse at runtime.

Conversion of BAML into XAML: The InitializeComponent() Method

InitializeComponent() method plays a vital role in WPF applications. Therefore, you should never delete InitializeComponent() call in your window's constructor. Similarly, if you add another constructor to your window class, make sure it also calls InitializeComponent().

InitializeComponent() calls LoadComponent() method of the System.Windows.Application class. The LoadComponent() method extracts the BAML(the compiled XAML) from your assembly and uses it to build your WPF user interface.