On 1 October 2014, the government is set to amend the Copyright Designs and Patents Act 1988 to introduce an exception for the use of copyright works for the purposes of parody, caricature and pastiche. This change will bring UK law in line with that of other countries including Germany, France, the Netherlands and Australia.
The Hargreaves Review recommended the introduction of this exception to remove unnecessary regulation and to support freedom of expression and economic growth in creative sectors as well as the broader need for the UK’s intellectual property laws to be updated so that they were fit for purpose in the “internet age”.
However, the new exception will be included under the already well-established heading of “fair dealing” to ensure that it is not misused and that original rights holders do not have their work reproduced wholesale.
The new legislation is being introduced to give effect to Article 5(3)(k) of the Information Society (Infosoc) Directive 2001/29/EC (the “Directive”), implementation of which by EU Member States is optional.
A glimpse of how the new exception might be applied was seen on 3 September 2014 when judgment was handed down by the Court of Justice of the European Union in Case C-201/13, Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others after being referred by the Brussels Court of Appeal for a preliminary ruling concerning the interpretation of the Directive on the harmonisation of certain aspects of copyright – in particular, how the law on the parody exception should be applied.
Willy Vandersteen was the creator of the popular Belgian comic book series “Suske en Wiske” (known as “Spike and Suzy” in English) which was first published in 1945.
At a New Year’s reception in 2011, Mr. Deckmyn, a member of the Flemish right-wing political party Vlaams Belang, distributed a calendar which displayed a modified version of one of the well-known covers of the “Suske and Wiske” comics entitled “De Wilde Weldoener” (meaning “The Compulsive Benefactor”).
The original drawing showed one of the comic’s main characters wearing a white tunic hovering above the streets and throwing coins to people who are trying pick them up off the street. In the drawing used by Deckmyn, that character was replaced by the Mayor of the city of Ghent and the people picking up the coins were all drawn as people of colour some of whom were wearing veils.
Taking the view that the drawing at issue and its communication to the public constituted an infringement of their respective copyrights, Vandersteen and others brought an action against Mr Deckmyn and the Vrijheidsfonds (an organisation which supports the Vlaams Belang political party financially) before the Court of First Instance in Brussels which ordered the defendants to cease all use of the drawing, failing which they would have to pay a penalty.
Deckmyn and the Vrijheidsfonds appealed and submitted before the Belgian courts that the drawing used on the calendar was a political cartoon which therefore fell within the scope of the Belgian exception for parody, caricature and pastiche, pursuant to Article 22(1)(6) of the Belgian Copyright Act.
Vandersteed disputed that interpretation, asserting that parody should meet certain criteria that had not been fulfilled in this case. The criteria were that the parody must: fulfil a critical purpose; show originality; display humorous traits; seek to ridicule the original work; not borrow a greater number of elements from the original than necessary. They also argued that the alleged parody conveyed a discriminatory message.
The Court of Appeal decided to stay the proceedings and seek guidance from the CJEU as to the following points in relation to the Directive:
1. Is the concept of parody an independent concept in European Union law?
The CJEU held that the concept of “parody” must be regarded as an “autonomous concept of EU law and interpreted uniformly throughout the European Union”.
2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
- the display of an original character of its own (originality);
- and such that the parody cannot reasonably be ascribed to the author of the original work;
- be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
- mention the source of the parodied work?
3. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?
The CJEU considered that it was appropriate to consider these questions together. It was found that as the Directive gives no definition of the concept of parody, the meaning and scope of the term must be determined by “considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part.”
On this basis the CJEU provided that the essential characteristics of parody are therefore:
1. To evoke an existing work while being noticeably different from it; and
2. To constitute an expression of humour or mockery.
The exception at Article 5(3)(k) should, it was held, be interpreted strictly. On this basis, the notion that a parody must conform to the restrictive requirements suggested out by the referring court as part of its second question was rejected by the CJEU.
Impact of the Decision
The definition of parody under EU law therefore looks to be very broad. By rejecting the aforementioned requirements, there are now only two relevant considerations to be applied when attempting to establish whether or not something is to be classed as a parody.
National courts will have to use discretionary powers to decide whether any given parody should be considered “noticeably different” to the original. However, difficulties may arise when deciding whether a parody expresses “humour or mockery”. There is clearly no “autonomous and uniform” concept of humour in EU law, so it will be interesting to see how judges determine whether a work satisfies this key criteria.
The CJEU also emphasised the importance of achieving a “fair balance” between the rights and interests of authors and the rights of freedom of expression for users of the protected subject-matter. It was said that in order to achieve this balance, “all the circumstances of the case must be taken into account”.
In this particular case, the circumstances included the fact that the characters who were picking up coins were represented as people wearing veils and people of colour. This, according to Vandersteen, conveyed a discriminatory message which has the effect of associating the protected work with such a message. In view of this, the CJEU stated that the holders of rights under the Directive have, in principle, a legitimate interest in ensuring that their copyright work is not associated with such views.
However, it is not clear if this sits well with the broad definition of parody that the CJEU appeared to wish to allow national courts to apply. The purpose of the parody exception is to allow others to use work produced by the rights holders and to amend or adapt it in some way without permission but if copyright holders can oppose the making of parodies with which they do not want to be associated, not much will be left of the exception.