On 22 May 2014, Advocate General Villalon (the "AG") issued a non-binding Opinion (the "Opinion") for the benefit of the Court of Justice of the European Union ("ECJ") in Case C-201/13, Deckmyn en Vrijheidsfonds. The case concerns the interpretation of the concept of "parody" in Article 5(3)(k) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (the "Directive"). Under the Directive, a "parody" work is exempt from the exclusive rights of the copyright holder to reproduce protected works (Article 2 of the Directive) and to communicate the work to the public (Article 3 of the Directive).
This Opinion follows a request for a preliminary ruling from the Brussels Court of Appeal (Hof van Beroep te Brussel/Court d'Appel de Bruxelles) in the course of proceedings between Mr. Deckmyn and the right holders of the "Suske en Wiske" comic books (See, VBB on Belgian Business Law, Volume 2013, No. 6, p. 5, available at www.vbb.com). In 2011, Deckmyn, a member of the far right party Vlaams Belang, distributed a calendar featuring on the front page an adaptation of the cover of a well-known "Suske en Wiske" album entitled "De Wilde Weldoener" ("The Wild Benefactor"). The modified version of the cartoon depicted the mayor of Ghent flying over the city throwing gold coins to people on the street who were veiled or of different ethnicity, while Suske and Wiske were looking at the scene with an expression of concern. The right holders argued that the calendar cover showed all the general characteristics that are typical for a "Suske en Wiske" comic book cover. They held that the similarities between the two covers could confuse readers who may be led to believe that the "Suske en Wiske" comic books support the political opinion shown.
The Brussels Court of First Instance granted an interim injunction prohibiting the further distribution of the calendar. On appeal, the Brussels Court of Appeal stayed the proceedings and referred questions to the ECJ in response to which the AG has now given his Opinion.
First, the AG found that the concept of parody must be an autonomous concept under EU law. The AG pointed out that the Directive does not give a definition of the concept of "parody", nor does it refer to the Member States to define the concept. According to the AG, a harmonised European interpretation is therefore necessary.
With regard to the conditions to qualify as a "parody", the AG offered the view that parody, caricature and pastiche are all three concepts providing an exception to copyright and can thus be treated together. However, the AG thought that parody differs from the other two concepts in that it is always simultaneously a copy and a creation, in the form of an alteration of the original work. The AG considered that a parody must show enough creativity to avoid being a mere copy of the original work. According to the AG, it is up to the national courts to decide whether this is the case in any given situation.
The AG examined three functional features of a parody: its subject, effect and content. The AG held that the subject of the parody could either be the original work itself, or something or someone else. In the case at hand, the subject of the parody is not the original work, but the mayor of Ghent.
In addition, the AG indicated that the effect of a parody should be, to some extent, humorous. The AG considered that it should be left to the Member State, taking into account national sensitivities, to define whether a parody has a humorous effect.
Finally, the AG discussed the boundaries of the parodist's right to freedom of expression under Article 17(2) of the Charter of fundamental rights. According to the AG, this right may conflict with important values, such as human dignity and non-discrimination on the basis of cultural, religious and linguistic diversity. A parody cannot be prohibited merely because the author of the original work does not support the idea or opinion of the parody. However, the parody can be prohibited if it brings a message that is radically contrary to the fundamental values of society. According to the AG, it should be left to the national courts to balance the right to freedom of expression with the fundamental rights.
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