On May 22th, Pedro Cruz Villalón, an Advocate General of the European Court of Justice (ECJ), published his opinion in Deckmyn, C-201/13 (not yet available in English.) This case has been closely followed in the European Union (EU) by intellectual property and free speech enthusiasts as the question asked to the court was about the nature of a parody under EU law.
What is a preliminary question?
The mission of the ECJ is to make sure that EU law is applied consistently all around the Union. Under article 267(b) of the Lisbon Treaty, the court has jurisdiction to give preliminary rulings about the interpretations of EU acts such as a directive. National courts wishing to receive guidance about how a particular EU act should be interpreted may ask the ECJ a preliminary question. When the ECJ answers it, the national court must apply the EU law accordingly as an article 267 ruling is mandatory and not merely advisory. The ECJ has nine Advocates General (AG) which write opinions after oral proceedings when they take a position on how the court should rule in a particular case. However, following the AG’s opinion is not mandatory for the ECJ and so AG Villalón’s opinion may or may not be followed by the court when it will issue its judgment in Deckmyn in few months.
A Calendar Which Parodied then-Ghent’s Mayor
The Deckmyn case started with a free calendar. Mr. Deckmyn is a member of the Belgium political party Vlaams Belang which advocates Flemish independence and strict immigration policies. During a reception at the Ghent city hall in 2011, Deckmyn distributed a calendar spoofing a cover of the cartoon series “Suske en Wiske” created by Willebrod Vandersteen, which is famous in Belgium. The front cover of the calendar showed a drawing of then Ghent‘s mayor flying in the air while distributing money to people wearing burqas and/or having dark skin. The calendar indicated that Deckmyn was its editor and also that the drawing was a “free adaptation of Vandersteen.” The design was also published on a website and in a magazine printed by Deckmyn’s political party.
Vandersteen’s heirs sued, alleging copyright infringement. They won an emergency court ruling against Deckmyn and other involved parties. Defendants appealed to the Brussels Court of appeals, using a parody defense among others. But Vandersteen’s heirs argued that, by parodying a “Surke en Wiske” cover, defendants had given the public the impression that the heirs approved the extreme political views of the Vlaams Belang party .
The Brussels Court of Appeals asked several preliminary questions to the ECJ. It asked whether a parody is an autonomous concept of European Union law. The court also asked the ECJ if a parody must be original, if a parody must be such that it cannot be reasonably attributed to the author of the original work, if a parody must aim at being humorous, whether it must mocks the original work or not, and finally if a parody must mention the source of the work parodied.
Parody is an autonomous concept of EU law
Article 5.3(k) of Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society (the “Information Society Directive“) gives Member States the option to provide an exception to copyright infringement if the infringing work has been used “for the purpose of caricature, parody or pastiche.” Article 22 § 1, 6° of the June 30, 1994 Belgium copyright law provides such an exception.
Should EU law or Member States laws have the power to decide what is a parody? In AG Villalón’s opinion, parody is an autonomous concept of the EU law. Even though providing parody exception is not mandatory under the Information Society Directive, it would be incompatible with the Directive’s objectives to allow each Member States to have its own concept of what constitutes a parody. AG Villalón cited the 2010 ECJ Padawan case, where the court stated, about the private levy exception of the Information Society Directive that Member States cannot be free to determine the limits of a copyright exception as it would lead to inconsistencies throughout the EU and thus would be incompatible with the objectives of the Directive.
What is a parody under EU law?
AG Villalón examined the definition of ‘parody’ in several languages used in the EU and concluded that a parody is essentially a burlesque imitation. As such, it is both a copy and a creation (at 49). A “parody is always in part a tribute or a recognition of the original work” (at 50). Also, in AG Villalón’s opinion, a parody can mock the original work or may merely use the original work to mock a third party. Both types of parodies are within the scope of the Information Society Directive.
AG Villalón noted that the Member States’ courts have each developed their own tests to determine if a parody is creative enough to be given a safe harbor from copyright infringement. The courts examine if the parody can be confused with the original work, if it keeps a sufficient distance from the original work, and if it used more elements of the original work than necessary (at 55). For AG Villalón, such findings are within the margin of appreciation the Directive leaves to the Member States, since recital 32 of the Directive states that the list of exceptions to copyright provided by the Directive “takes due account of the different legal traditions in Member States.”
Parody and Freedom of Speech
For AG Villalón, a parody is “both a form of artistic expression and a manifestation of freedom of expression. In the Deckmyn case, the parody used the original work “to convey a political message in an allegedly more effective way” (at 70).
This message had, however, racist and exclusionary undertones as its authors used the original work to express their opinion that then Gent mayor was too generous towards immigrants. Is such a message nevertheless protected by free speech in the EU?
Free speech is a fundamental right in the EU and is protected by article 11 § 1 of the EU charter of fundamental rights. AG Villalón asked the question: “To what extent the interpretation by the civil courts of the scope of the parody exception may be conditioned by fundamental rights?” (at 76). As noted by AG Villalón, freedom of speech may be limited, such by article 10 § 2 of the European convention of human rights from the Council of Europe. The EU Charter also protects fundamental rights which may conflict with freedom of speech, such as human dignity (article 1) or discrimination based on race or religion (article 21). Judges from Member States’ courts, when interpreting the Information Society Directive, “cannot ignore (…) that the Charter exists “(at 84).
Parody Not Protected if Message is Radically Contrary to Deepest Convictions of Society
This is why AG Villalón concluded that if the message conveyed by the parody is “radically contrary to the deepest convictions of society” then it will not be protected by copyright exceptions. It belongs however to Member States courts to determine if a particular parody, while outrageous, should nevertheless be protected as a parody because it does not reach this extreme level.
AG Villalón explained that:
“in principle and strict view of the concept of parody, a certain image can be excluded from that concept simply because the message is not shared by the author of the original work or may deserve to be rejected by a large part of public opinion. However, we should not accept as parody, and authors of the work with which the parody is created can legitimately argue this point, reworks of the original work, which in form or in substance transmit a message radically contrary to the deepest convictions of society, on which ultimately the European public space is constructed and ultimately exists “ (at 85).
If the ECJ follows the AG’s conclusions, the Brussels Court of appeals will have to judge if the message of the calendar, which is obviously racist and exclusionary, reached this threshold level. It will probably judge that it can be protected as parody, unless the moral rights of the heirs trump free speech. Indeed, the heirs also argued in front of the court of appeals that Deckmyn’s unauthorized use was a violation of their moral rights, as it associated the Suske en Wiske characters with racist political opinions. The court of appeals did not ask a question about the relationship between moral rights and parody to the court and thus the ECJ did not address this issue. However, the court of appeals will have to address the issue in its ruling.
Would the calendar have instead featured instead, say, a message denying the Holocaust, which is illegal in Belgium as in other EU Member States, the court would certainly deny protection as a parody. The US does not recognize extensive moral rights, and the First Amendment protects racist speech. The Deckmyn case is yet another example of the differences between EU and US conceptions of free speech and copyright law, and how to balance these two fundamental rights.
Image is Hyena courtesy of Flickr user U.S. Geological Survey a CC BY 2.0 license
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