Europe's Highest Court Introduces New Limitation To EU Parody Exception

from the legitimate-interest? dept

Under the European Copyright Directive, Member States may bring in an exception to copyright that allows works to be used without consent for the purposes of caricature, parody or pastiche. Following a long-drawn-out process, the UK will be doing exactly that, with effect from October 1. But a new judgment from Europe's highest court, the Court of Justice of the European Union, has added a new limitation to the parody exception (pdf). Here's the background to the case, as explained by the court's press release:

At a reception held by the [Belgian] city of Ghent to celebrate the New Year, Mr Deckmyn, a member of the Vlaams Belang (a Flemish political party), handed out calendars for the year 2011. The cover page of those calendars featured a drawing which resembled that appearing on the cover of one of the Suske en Wiske -- known in English as Spike and Suzy -- comic books with the original title 'De Wilde Weldoener' (which may be rendered as 'The compulsive benefactor'), produced in 1961 by Willy Vandersteen. The original drawing represented an allegorical character in the series wearing a white tunic and surrounded by people trying to pick to pick up the coins he was scattering all around. In the drawing appearing on Mr Deckmyn's calendars, that character was replaced by the mayor of the city of Ghent, while the people picking up the coins were replaced by people wearing veils and people of colour.

Several of Vandersteen's heirs and other holders of the rights to the comic book series brought an action against Deckmyn and the organization that financed the Vlaams Belang, claiming copyright infringement. These last two said that the calendar was satire, and therefore was covered by the EU's parody exception. The copyright holders asserted that parody must display originality, and that anyway the drawing conveyed a discriminatory message. Faced by all these claims, the Court of Appeal in Brussels asked the EU Court of Justice to clarify the conditions that a work must fulfill in order to be classified as parody. Here's the good news from the EU court's decision:

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.

But there's less-good news in the form of this additional comment:

The Court notes that the application of the exception for parody, established by the directive, must strike a fair balance between, on the one hand, the interests and rights of authors and other rightsholders and, on the other, the freedom of expression of the person who wishes to rely on that exception. In that context, the Court declares that, if a parody conveys a discriminatory message (for example, by replacing the original characters with people wearing veils and people of colour), 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.

As is usual, the EU Court of Justice has passed the case back to the original Belgian court to apply its judgment. The latter will have to decide whether the parody in this case does indeed convey a discriminatory message, and whether the copyright holders can therefore require that the work is not "associated with such a message" -- which presumably means that they can insist that it is not distributed.

What's problematic here is that, by its very nature, parody is pushing the boundaries of good taste; it's quite likely to use images that upset some people, and that are maybe borderline discriminatory in some way (whatever that means). The risk is that the rather vague ruling from the European court will encourage more legal action to be taken against works of parody, and for social and political commentary to suffer as a result.

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Filed Under: copyright, deckmyn, eu, eu court of justice, moral rights, parody