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Parody After Deckmyn – A Comparative Overview of the Approach to Parody Under Copyright Law in Belgium, France, Germany and The Netherlands
Abstract
Many EU Member States have a well-established approach with regard to the use of copyright-protected works for the purpose of parody. As a consequence of the CJEU’s Deckmyn decision, in which the Court held that parody is an autonomous concept of EU law and defined that concept, their approach may need to change. This article looks at the criteria developed by various national courts to determine the lawfulness of parodies prior to Deckmyn and at the role these criteria can play after Deckmyn. It will be argued that even though the adaptation right is not explicitly harmonized by the InfoSoc Directive, a parody will in principle constitute a reproduction within the meaning of that directive. In addition, it is submitted that Member States are not free to restrict the scope of the harmonized parody exception by imposing requirements not found in the InfoSoc Directive. Consequently, there is very little margin of discretion left for Member States with regard to the legal treatment of parodies. Nevertheless, most of the “old” criteria can still play a role when determining a fair balance of rights and interests that, according to the CJEU, needs to be maintained when applying the exception. When taking account of the essential characteristics of a parody, as defined by the CJEU, and the fair balance in an overall assessment, the parody exception can act as a flexible exception, allowing a wide array of humorous and critical uses of copyright-protected works.
Folklore is not only an essential part of our cultural heritage, it is also an extremely important means of communication and expression. Although many theories try to capture the concept of “modern folklore” that is emerging at the present, only its main characteristics can be considered. When it comes to understanding internet folklore the ground is even more fragile, especially if we wish to examine and assess it not exclusively through a folkloristic lens, but also from a copyright perspective. There is a tendency to identify its natural presence based on a kind of simplicity, and to project that simplicity not only with respect to its use, but also with respect to the legal regulation that applies to it. The present study aims to show how internet folkore has to fit into an incredibly complex set of copyright rules, and how not only its creation but also its use for various purposes and in several different ways raises different copyright issues from one jurisdiction to another. As UNESCO clearly points out, intangible cultural heritage is community-based, but raising awareness and emphasizing its importance is a universal task. In this context, a cultural community needs to find a place for tradition-based modern creations such as internet folklore, without disregarding their copyright status and future.
Focusing on the nexus of humour and the right to free speech, this article introduces the concept of ‘dark parody’ to address parodies that reuse existing material with a dark, humorous twist and explores how courts deal with two of the main interpretive challenges presented by a ‘dark parody’: (1) interpreting the distance between the parody and the copyright/trademark protected work it parodies, and (2) its use of dark humour. Using a metahermeneutic approach, the article analyses how the main features of parody, the legal criteria applied to parody in courts of law, and the role of dark humour influence the judicial interpretation process regarding (dark) parody in the context of copyright and trademark law. Based on this analysis, the article proposes the theoretical framework of ‘parodic distance’ to address the interpretive challenges systematically presented by dark parody via six main categories—content, style, context, message, function and affect—from which the distance between a parody and the original can be interpreted. Applying this framework to two case studies [Mercis c.s. v. Punt.nl, Court of Appeal of Amsterdam; Laugh It Off Promotions v. South African Breweries, Constitutional Court of South Africa], the article provides a comparative analysis of how these courts currently deal with interpretive issues surrounding dark humour in copyright and trademark law and shows how the framework of parodic distance can be a potentially useful conceptual tool that provides a shared vocabulary to complement judicial interpretation and legal discourse at the nexus of dark parody and the law.
This paper analyses the legal regime of parodistic work from an Italian and European copyright law perspective. Taking into consideration that the Italian Copyright Act does not contain any specific parody exception, the author maintains that parodistic works cannot fall within the scope of the quotation and criticism exception. Based on the fact that, as is well known, EU copyright law does not allow Member States and national courts to apply a general “fair use” doctrine to support the lawfulness of using another’s work for parodistic purposes, it is argued that the use of a previous work to create a new parodistic work falls beyond the scope of copyright protection, and that the creation and commercialisation of a parodistic work cannot be prohibited by the author of the parodied work, since the former does not amount to an elaboration of the latter.
This research aims to evaluate the CDSM Directive and DSA regulation effectiveness in protecting the EU copyright exception for parody, caricature, and pastiche set in Article 5 (3)(k) of the InfoSoc Directive and capture quintessential issues of the regulation that make the conditions for potentially reduced ability to disseminate creative parody content in the online content-sharing service platforms in the EU. The subject of this paper is the complex relationship between algorithmic content recognition tools and creative parody content qualification. Based on EU copyright law doctrinal consensus, a legislative move to introduce liability for copyright-infringing content to online content-sharing service providers induces algorithmic content moderation on digital platforms. The triangular challenge to balance EU copyright and exception protection without disrupting the online content-sharing service leads to algorithmic recognition-based parody recognition solutions.
In this paper, an intelligent model is constructed to facilitate real-time dynamic analysis of the factors affecting the export of film and television copyrights and to track the process of spatiotemporal context. The algorithm analyzes the factors affecting the export of film and television copyrights according to actual needs. Through the comparative analysis of experimental models, the influence and optimization of gamma correction and Laplace distribution weighting on spatial context information and confidence map update are verified. In addition, this paper uses the gray relational algorithm to construct an analysis system of factors affecting the export of film and television copyright. The research shows that the analysis model of the influencing factors of film and television copyright export based on the gray relational algorithm can play a very good role in the analysis of these factors.
The enhanced status of the rules and jurisprudence of fundamental rights law under the Lisbon arrangements is likely to have an impact in a number of different areas of EU intellectual property law. In this chapter, we on one particularly interesting aspect of the relationship between these two bodies of law. Art 17(2) of the EU Charter grants intellectual property fundamental status, providing that: ‘Intellectual property shall be protected.’ The intention and effect of this provision are uncertain. Nevertheless, it has already been referred to on a number of occasions within the EU’s intellectual property system. In this chapter, we seek to address some of the uncertainty concerning the aim and scope of Art 17(2) by exploring the interpretation of its historical antecedents. In so doing, we hope to dispel a number of misconceived claims that have been made about its supposed effects.
Modern copyright law is designed so as to accommodate the needs of a dynamic reality through the extensive use of open standards, aimed at reconciling conflicting interests. In the past few decades the tension between the competing interests has intensified, and contemporary global copyright discourse has focused on the relationship and tension between traditional copyright interests and fundamental rights, such as freedom of expression, data protection and privacy. Against this background, a new path is gradually emerging in European and English copyright law, in which a new standard – “proportionality” – is being established to moderate the growing constitutional tension. The notion of “proportionality” is an acknowledged principle in European law. This article attempts to examine the relatively brief and recent history of the proportionality test as implemented in the copyright sphere and to understand its potential trajectories. Proportionality has been adopted as a measure for scrutinizing remedies granted in cases of copyright infringement. A growing body of literature acknowledges that remedies affect the scope of rights. The implementation of the proportionality test as a remedy-based measure in the copyright context firmly supports this position. The development of the new standard in European and English copyright law thus far sketches a picture of a sophisticated vehicle for adjusting remedies to constitutional tensions within the substantive civil copyright arena. The strength of this mechanism lies not only in its flexibility but also in its ability to simplify acute conflicts between competing fundamental rights and transform them into a dialogue which involves a more factually oriented balancing of interests, examined through the prism of remedies. The proportionality test therefore, may indeed take European intellectual property law to its inevitable new constitutional phase.
In this opinion, the European Copyright Society (ECS) puts on record its views on the issues raised by the Judgment of the Court of Justice of the European Union (CJEU) in Case C-201/13, Deckmyn, which departs from the doctrine of strict interpretation of exceptions and limitations in cases in which fundamental rights such as freedom of expression are involved. The opinion welcomes this development for the following reasons: firstly, due to the importance of exceptions and limitations in facilitating creativity and securing a fair balance between the protection of and access to copyright works; secondly, because of the Court’s determination to secure a harmonized interpretation of the meaning of exceptions and limitations; thirdly, because of the Court’s adoption of an approach to the interpretation of exceptions and limitations which promotes their effectiveness and purpose; and, finally, due to the Court’s recognition of the role of fundamental rights in the copyright system: in particular, its recognition that the parodic use of works is justified by the right to freedom of expression. At the same time, the ECS recommends caution in constraining the scope of exceptions and limitations in a manner that may go beyond what might be considered necessary in a democratic society.
Fair use provisions in the field of copyright limitations, such as the U.S. fair use doctrine, offer several starting points for a comparative analysis of laws. Fair use may be compared with fair dealing. With the evolution of fair use systems outside the U.S., fair use can also be compared across different countries. The analysis may also concern fair use concepts in different domains of intellectual property. Instead of making any of these direct comparisons, the present analysis deals with another aspect of comparative analyses: the study of foreign fair use provisions as a basis for the improvement of domestic legislation. More specifically, the analysis will show that important impulses for necessary reforms in the EU system of copyright exceptions can be derived from a comparison with the flexible approach taken in the U.S. For this purpose, the legal traditions underlying the legislation on copyright limitations in the EU (civil law) and the U.S. (common law) will be outlined (section 1) before explaining the need for reforms in the current EU system (section 2). On this basis, strategies for translating lessons to be learned from the U.S. fair use approach (section 3) into the EU system will be discussed. This translation is unlikely to fail because of an inability or reluctance of civil law judges to apply open-ended norms (section 4). Under existing EU norms, however, a degree of flexibility comparable to the flexibility offered in the U.S. cannot be achieved (section 5). To establish a sufficiently flexible system, EU legislation would have to be amended (section 6 and concluding section 7).
In the European Union, copyright law is increasingly a matter for the European legislator. Member states retain ever less competence to regulate intellectual property rights.This study critically examines the 'acquis communautaire' in the field of copyright and related (neighbouring) rights, focusing on the seven copyright specific directives, from the 1991 Software directive to the 2001 Information Society Directive. It also deals with distinct issues that are on the agenda of the EU: After reviewing arguments for and against the extension of the term of protection of phonograms (sound recordings), the authors conclude there is no convincing case for extending the term of protection for sound recordings and performing artists. Neither are there compelling arguments to further harmonize the term of protection of co-written musical works. The issue of 'orphan works' is one that could benefit from an EU wide solution. Having assessed the benefits and drawbacks of the fifteen years of harmonization of copyright, the authors conclude that the European legislator should exercise restraint in further harmonization efforts at least as long as a coherent vision of the role of copyright in the EU is lacking.The Study was commissioned by the European Commission, DG Internal Market (2006) and is available at the Institute for Information Law website.
There appear to be good reasons and ample opportunity to (re)introduce a measure of flexibility in the national copyright systems of Europe. The need for more openness in copyright law is almost self-evident in this information society of highly dynamic and unpredictable change. A historic perspective also suggests that copyright law, particularly in the civil law jurisdictions of Europe, has lost much of its flexibility in the course of the past century. By contrast, with the accelerating pace of technological change in the 21st Century, and in view of the complex process of law making in the EU, the need for flexible copyright norms both at the EU and the national level is now greater than ever.Against this background, the authors argue that the EU copyright acquis leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized. A Member State desiring to take full advantage of all policy space available under the Information Society Directive, might achieve this by literally transposing the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. Less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, can explore the policy space left by distinct exception prototypes. In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for example, fair transformative uses in the context of producing and disseminating user-generated content.
This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is 'to assess the role that the Directive has played in fostering the digital market for goods and services in the four years since its adoption'. The impact of the Directive on the development of digital (chiefly online) business models, therefore, will be the focal point of our enquiry throughout this study.
The three-step test is central to the regulation of copyright limitations at the international level. Delineating the room for exemptions with abstract criteria, the three-step test is by far the most important and comprehensive basis for the introduction of national use privileges. It is an essential, flexible element in the international limitation infrastructure that allows national law makers to satisfy domestic social, cultural, and economic needs. Given the universal field of application that follows from the test’s open-ended wording, the provision creates much more breathing space than the more specific exceptions recognized in international copyright law. EC copyright legislation, however, fails to take advantage of the flexibility inherent in the three-step test. Instead of using the international provision as a means to open up the closed EC catalogue of permissible exceptions, offer sufficient breathing space for social, cultural, and economic needs, and enable EC copyright law to keep pace with the rapid development of the Internet, the Copyright Directive 2001/29/EC encourages the application of the three-step test to further restrict statutory exceptions that are often defined narrowly in national legislation anyway. In the current online environment, however, enhanced flexibility in the field of copyright limitations is indispensable. From a social and cultural perspective, the web 2.0 promotes and enhances freedom of expression and information with its advanced search engine services, interactive platforms, and various forms of user-generated content. From an economic perspective, it creates a parallel universe of traditional content providers relying on copyright protection, and emerging Internet industries whose further development depends on robust copyright limita- tions. In particular, the newcomers in the online market – social networking sites, video forums, and virtual worlds – promise a remarkable potential for economic growth that has already attracted the attention of the OECD. Against this background, the time is ripe to debate the introduction of an EC fair use doctrine on the basis of the three-step test. Otherwise, EC copyright law is likely to frustrate important opportunities for cultural, social, and economic development. To lay groundwork for the debate, the differences between the continental European and the Anglo-American approach to copyright limitations (section 1), and the specific merits of these two distinct approaches (section 2), will be discussed first. An analysis of current problems that have arisen under the present dysfunctional EC system (section 3) will then serve as a starting point for proposing an EC fair use doctrine based on the three-step test (section 4). Drawing conclusions, the international dimension of this fair use proposal will be considered (section 5).
This book details the history and development of the major international agreements affecting copyright and related rights. In particular, it examines the interpretation and application of the following conventions: the Berne Convention for the Protection of Literary and Artistic Works 1886–1970; the Rome Convention for the Protection of Performers, Producers of Phonogram and Broadcasting Organizations 1961; the WIPO Copyright and Performances and Phonograms Treaties 1996; and the TRIPS Agreement (so far as it affects copyright and related rights). Doctrinal analysis exposes gaps and ambiguities in the current text of the Berne Convention and considers the extent to which subsequent international instruments have resolved those questions. Issues concerning new technologies and digital networks thus receive in-depth treatment. The book also addresses questions of subject matter coverage, copyright ownership, duration, nature and scope of rights, and exceptions and limitations to copyright protection. Moreover, it considers private international law matters, looking at problems of international jurisdiction and choice of law.
This Opinion addresses the recent interpretation of the parody exception in the Deckmyn case. Given the impact of the CJEU case law on Member States, it is pertinent to reflect upon the teachings of this decision. The Opinion will demonstrate how this decision is to be welcomed, while advising the courts to adopt extreme care in the assessment of the requirement of humour and the balancing of fundamental freedoms.
Full harmonization of the copyright laws of EU Member States has long been a holy grail for copyright lawyers, but with the reality thus far being only limited harmonization resulting from ad-hoc legislative interventions, there are serious questions over the feasibility and indeed desirability of this goal. Notwithstanding, as this book makes eloquently clear, whilst legislative initiatives have been limited, the CJEU has been acting proactively, establishing through its decisional practice the de facto harmonization of an important principle of copyright: the originality requirement.
Through an assessment of the originality requirement, this work guides the reader in interpreting judicial decisions which are of fundamental importance to current and future understanding of EU copyright. The book’s holistic approach and methodology takes in analysis of; recent decisions of the CJEU in light of broader EU copyright reform debate; the implications of CJEU case law in Member States which have traditionally adopted different approaches to copyright (eg the UK); the originality requirement in EU, UK and continental Member States; recent UK decisions from an EU perspective; and academic copyright reform projects, both in Europe and the US.
Originality in EU Copyright will appeal to academics, policymakers and EU officers, students, practitioners and in-house counsels
The article provides an overview of the most important developments in the field of EU copyright law in the period 2009-2013. It points to the active role the ECJ has taken in interpreting the EU copyright directives, in particular the Information Society Directive.
The article discusses the ECJ's case law covering the condition for copyright protection, the exclusive economic exploitation rights, including a full treatment of the Used Soft case, exceptions to copyright and in particular the case law on fair compensation for private copying. It argues that the ECJ's case law is consistently rooted in the objectives of primary law, notwithstanding certain weaknesses in the interpretation of substantive copyright law in detail. A brief outline of the most important legislative activities since 2009 puts the Court's case law in the overall context of the development of EU copyright in the last 5 years
Directive 2001/29 (the ‘InfoSoc Directive’) contains an exhaustive list of exceptions and limitations that Member States are free to implement into their own copyright laws (save that the exemption for temporary copies is mandatory). Article 5(5) incorporates the three-step test and mandates that exceptions and limitations shall only be applied in certain special cases that do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder. Unlike the three-step test in international copyright law, it is uncertain whether the three-step test in the InfoSoc Directive is addressed to national courts as well as the legislatures of the Member States.
Recent case law of the Court of Justice of the European Union (‘CJEU’) has provided guidance in this respect. The CJEU has held that Article 5(5) is not intended to affect the substantive content of the exceptions contained in Articles 5(1), (2) and (3), and thus cannot extend their scope, and has held that, if acts clearly fall within one of those exceptions, they satisfy Article 5(5). However, it has also ruled that those exceptions must be construed in the light of Article 5(5). More significantly, despite holding that Article 5(5) takes effect only at the time that the exceptions are applied by the Member States, the CJEU has also held that the acts of the defendant in question must satisfy the requirements of Article 5(5). As such, it appears from the CJEU's jurisprudence that the three-step test in the InfoSoc Directive is addressed at national legislators and courts alike.
The consequence of this is that, even in those Member States that have not transposed the language of the three-step test into their own legal systems, courts must determine not only whether the acts of the defendant in question are eligible for the application of a certain exception or limitation, but also whether they comply with the cumulative conditions set in the InfoSoc three-step test.
In this ruling, the Court of Justice of the European Union stated that (i) parody is an autonomous concept of EU law; (ii)
a parody must be understood according to its usual meaning in everyday language and has just two essential characteristics,
namely to evoke an existing work while being noticeably different from it, and constitute an expression of humour or mockery;
(iii) the person who owns the copyright to a work has a legitimate interest in ensuring that his/her work is not associated
with the message conveyed by its parody if it is discriminatory/racist.
Over the past few years consensus has grown around the idea that current EU legislative framework for copyright lacks the flexibility needed to accommodate emerging interests, specifically those arising in connection with technological development. In particular, the principal directive in the area of EU copyright, ie Directive 2001/29/EC, has been widely criticised for having failed to increase legal certainty in the EU and, overall, has been considered a badly drafted, compromise-ridden, ambiguous piece of legislation.
While debate as to whether the InfoSoc Directive should be reformed has gained momentum, limited attention has been devoted to exploring the relationship between this directive, the emerging doctrine of EU pre-emption and the room left for national initiatives. It remains uncertain to what extent Member States are free to legislate in areas affected by the InfoSoc Directive, notably exclusive rights and related exceptions and limitations. This contribution seeks to address two main questions: Are Member States entitled to alter, ie broaden or restrict, the scope of the exclusive rights harmonised by the InfoSoc Directive? May Member States decide (as the UK did) not to transpose the full language of exceptions and limitations once they chose to implement a certain exception or limitation from Article 5 catalogue into their national laws?
The answer should be in the negative in both cases. This is because Directive 2001/29/EC leaves much more limited room for independent national initiatives than what has been so far understood.
This book offers a core concept of intellectual property, considers a range of justifications for the recognition of intellectual property rights, and explores their operation in a number of key areas. It is essential to consider both the concept of intellectual property and the reasons why a legal system might incorporate such a concept. We are increasingly told that the wealth of nations consists in intangible assets. These are the intangible products of human creativity, ingenuity, and effort. It is frequently argued that these assets represent the future of developed economies and that their adequate protection by intellectual property regimes is essential to national, regional, and even global prosperity. We are also told that the creators of such assets have a strong moral claim to them, and that developed legal systems should recognize this claim. This text examines the ethical issues and debates surrounding intellectual property law and focuses on three aspects of the major intellectual property regimes: subject matter; the allocation of the first ownership of rights; and the scope of protection. By exploring these three issues, this book provides a strong sense of the shape and purpose of the most important intellectual property systems.
By now, the so-called "three-step test" is at the core of copyright law. Under international copyright law, all exemptions to copyright and the so-called neighboring rights have to comply with this test. Some countries inserted the test in their national copyright acts. In others, judges apply the three-step test when they are in doubt whether an activity may be exempted. As the test is incorporated in the EU Copyright Directive of 2001, the European Court of Justice may use it while considering whether exemptions are in conformity with EU law. However, the three-step test is seriously flawed and not suited for application by the courts. It was not conceived as a threshold for determining whether certain usage should exclusively be controlled by the copyright owner, but rather as an intentionally vague diplomatic compromise. The second step, according to which usage may only be exempted if it "does not conflict with the normal exploitation" of protected subject matter, poses the main problem. This contribution sets out the problem and proposes a possible solution.
A dispute resolution panel of the World Trade Organization in June 2000 held the United States in contravention of its obligation under art. 13 of the TRIPs accord to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder." In the dispute resolution proceeding, initiated by the European Union at the behest of the Irish performing rights organization, the contested exception, enacted in the 1998 "Digital Millennium Copyright Act," exempted a broad range of retail and restaurant establishments from liability for the public performance of musical works by means of communication of radio and television transmissions. The WTO panel decision marks the first time an international adjudicative body has interpreted either art. 13 of TRIPs, or art. 9.2 of the Berne Convention, the text TRIPs incorporates, and generalizes from the Berne Convention reproduction right to all TRIPs and Berne rights under copyright. Berne art. 9.2/TRIPs art. 13 impose the "three-step test" to evaluate the legitimacy of exceptions and limitations on copyright; the panel's decision extensively analyzes each of the steps. As other multilateral instruments, such as the 1996 WIPO Copyright Treaty (art. 10) and WIPO Performers and Phonograms Treaty (art. 16.2), as well as the pending European Union Information Society Directive (art. 5.4), increasingly adopt the "three-step test," the WTO Panel decision may significantly advance the development of a truly supra national law of copyright. This article will analyze the Panel's interpretation of the test's three steps, and their application to the U.S.-law exemption. The article will also compare the Panel's treatment of the three-step test with the prior analyses proposed by several Berne Convention commentators, in order to reflect on what the Panel's analysis might mean for copyright exceptions more broadly. It is important to recognize, however, that the decision's actual impact on international copyright law will also depend on other considerations that will not be addressed here, including: Member State compliance with Panel decisions; the precedential effect of one Panel decision on later dispute resolution panels; and the willingness of national courts to look to WTO Panel decisions for guidance in evaluating local exceptions.
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