Tuesday, November 25, 2014
Eleonora Rosati, University of Southampton School of Law, is publishing Just a Matter of Laugh? Why the CJEU Decision in Deckmyn is Broader than Parody in the Common Market Law Review (2015). Here is the abstract.
On 3 September 2014 the Grand Chamber of the Court of Justice of the European Union (‘CJEU’) issued its decision in Case C-201/13 Johan Deckmyn and Another v Helena Vandersteen and Others (‘Deckmyn’). This was a reference for a preliminary ruling from the Brussels court of appeal, seeking clarification as to the notion of parody under Article 5(3)(k) of Directive 2001/29 (the ‘InfoSoc Directive’). This provision allows Member States to introduce into their own copyright laws an exception or limitation to the rights of reproduction, communication and making available to the public, and/or distribution, for the purpose of caricature, parody or pastiche. It does so without providing a definition of these concepts.
Having clarified that ‘parody’ is an autonomous concept of EU law, in its ruling the CJEU held that this must be understood according to its usual meaning in everyday language. A parody has just two essential characteristics: first, to evoke an existing work while being noticeably different from it and, secondly, constitute an expression of humour or mockery. The CJEU also stated that the person who owns the copyright to a work has a legitimate interest in ensuring that this is not associated with the message conveyed by its parody if it is discriminatory/racist.
This decision is topical to EU debate on copyright exceptions and limitations in Article 5 of the InfoSoc Directive, as well discourse around activism – rather than mere activity – of the CJEU in this area of the law. Thus, the relevance of the Deckmyn decision is not confined to the sole topic of parody. Similarly to what has happened in relation to other aspects of copyright, e.g. the originality requirement and the notion of work – also in this case the Court might have pursued some sort of de facto harmonization, notably with regard to moral rights.
The present contribution is structured as follows. The first part explains the background to this reference, and summarizes the Opinion of Advocate General (‘AG’) Cruz Villalón on 22 May 2014 and the subsequent findings of the CJEU. The second part discusses specific aspects of the Opinion and the ruling. First, the practical implications of the decision are reviewed. Secondly, the systematic impact of the Deckmyn case is addressed, including the actual harmonizing force of Article 5 of the InfoSoc Directive, as well as whether this ruling has introduced trade marks concepts into EU copyright (notably tarnishment), or even harmonized moral rights.
Download the article from SSRN at the link.