By Julie Nixon
On the 1st October 2014 a new parody exemption will be introduced into UK copyright law. By an amendment to the Copyright Designs and Patents Act 1988, copyright in a work will not be infringed by any fair dealing with the work for the purposes of “caricature, parody or pastiche”. In determining just how far reaching this new exception might be, it is timely then that the Court of Justice of the EU has just ruled this month, with respect to a case referred to it from Belgium, what constitutes a parody for the purposes of EU copyright law.
The “Deckmyn” case concerned politician Johan Deckmyn (a member of the Flemish nationalist political party, known as the Vlaams Belang) who had parodied a cover of Spike and Suzy (a famous comic strip in Belgium) for a calendar. The rights holders of the comic had sued Deckmyn for copyright infringement, and they also claimed that the calendar “conveyed a discriminatory message”. Because the interpretation of EU law was involved in the case, the Belgian court made the reference to the CJEU.
In its ruling the CJEU stated a “parody” must be defined in line with its every-day meaning, with the term’s main characteristics being to “evoke an existing work while being noticeably different from it” and to “constitute an expression of humour or mockery”. A work of parody does not have to display any original character of its own, or mention the source of the parodied work. The CJEU also ruled that it was up to national courts to decide whether to implement the parody exception under certain circumstances.
Copyright vs Free Speech
But the CJEU said that when applying the exception, courts must strike a fair balance between copyright holders’ interests and the right of freedom of expression of the party seeking to apply the exception. National courts must apply the test and strike this fair balance based on the applicable circumstances, but the CJEU drew particular attention to the “the principle of non-discrimination based on race, colour and ethnic origin”. So while an owner of a copyrighted work can object where their work is used in a parody conveying a discriminatory message, it will be down to the individual national courts to determine the “fair balance” that will be applied.
Can you Define Humour?
Future case law will determine what an acceptable parody is, but there is surely potential for national courts to come to different conclusions when interpreting the CJEU ruling. Whether a parody is “noticeably different” from the original work is subjective, as is whether a parody expresses “humour or mockery”. Unfortunately in Europe there is no autonomous concept of what humour is!
The Deckmyn case will now return to the Belgian court where it will be decided if the calendar “conveys a discriminatory message” and whether the parody exception in this case strikes a fair balance between the parties’ contrasting interests.