ECJ ruling in Deckmyn provides further clarity to the UK parody exception

A number of changes to UK copyright law came into effect on 1 October 2014.¹ They aim to encourage creativity through allowing the limited use of protected work. S.30A of the Copyright, Designs and Patents Act 1988 (CDPA) specifies that caricatures, parodies or pastiches will not infringe copyright, provided that use of the protected work constitutes "fair dealing". The UK Intellectual Property Office has issued guidance highlighting that "fair dealing" is restricted to using a "limited, moderate amount of someone else's work". A general description of "parody" has also been provided. The preliminary ruling by the Court of Justice of the European Union (ECJ) in Deckmyn provides further clarity on this definition.²

Background to Deckmyn

Proceedings for copyright infringement were successfully brought in the Belgian Courts by heirs of Mr Vandersteen, the author of the Suske en Wiske comics, and the holders of the rights associated with such works. One of Mr Vandersteen's comic covers had a drawing of a man in a white tunic throwing coins to crowds of people (the Drawing).

Mr Deckmyn is a member of Vlaams Belang, a far right political party in Belgium and Vrijheidsfonds is a fundraising organisation for such party (together the Defendants). Mr Deckmyn distributed calendars in 2011 in which he was named as the editor. The cover of the calendars had an image similar to the Drawing, however the man was replaced "with the Mayor of Ghent and the people picking up the coins were replaced with people wearing veils and people of colour".³ The Defendants argued they had relied on the parody exception under Belgian law and such use was therefore permitted. The Belgian Court stayed the proceedings and referred questions to the ECJ concerning the interpretation of Article 5(3)(k) of the InfoSoc Directive to clarify the definition of parody.⁴

Key legislation

Article 5(3) of the InfoSoc Directive states:

Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3[, entitled respectively "Reproduction right" and "Right of communication to the public of works and right of making available to the public other subject-matter",] in the following cases:

(k) use for the purpose of caricature, parody or pastiche……

ECJ preliminary ruling

The ECJ ruled that parody is an autonomous concept of EU law and must be interpreted uniformly throughout the EU. The Court further stated that a parody is not subject to strict conditions. The ECJ noted that the meaning and scope of parody must be interpreted by considering "its usual meaning in everyday language" while also considering the legislative context in which the term is used and the purpose of the legislation. The ECJ agreed with the Advocate General's opinion (issued in May 2014) that the essential characteristics of a parody are to: (i) evoke an existing work while being noticeably different from it; and (ii) constitute an expression of humour or mockery.

The Court noted that the objectives of the InfoSoc Directive must be considered and a fair balance must be achieved between the rights of copyright owners and users in light of all the circumstances of the case. The ECJ highlighted the principle of non-discrimination under the Race Directive.⁵ Right-holders have a legitimate interest in ensuring their work is not associated with a discriminatory message. It is for the national courts to consider if the essential requirements of a parody are met, and to then determine whether a fair balance would be preserved on the application of the parody exception. The Belgian Courts have not, as yet, provided a verdict as to whether the Drawing falls under the parody exception.

Relevance to the UK

The case provides further clarity for the new UK parody exception and reassures right-holders there is protection against parodies which convey a discriminatory message. Following the Deckmyn ruling, judges will have to determine whether the parody is humorous or constitutes mockery before considering the objective "fair balance" test. However, given the subjective nature for part of this test, there are concerns of judges arbitrarily deciding what is humour or mockery. It is advisable that individuals wishing to make use of the parody exception in the UK need to be cautious and obtain clearances until the ambit of the new legislation is tested in the Courts.

Please click on the links below for the other articles in the December 2014 IP/IT newsletter:

• No spec saving for Asda: genuine use of a trade mark considered by Court of Appeal
• Cartier -v- BSkyB: High Court orders ISPs to block access to trade mark-infringing websites
• 1967 Ltd -v- BSkyB: High Court orders ISPs to block access to copyright-infringing music websites
• Revenge porn: a dish that could serve you with a jail term
• TRIPP TRAPP: seat at the table of never-ending rights for shape marks remains elusive

_{Notes:
^1. The Copyright and Rights in Performances (Quotation and Parody) Regulations 2014.
^2. Deckmyn and another -v- Vandersteen and others, Case C-201/13.
^3. Deckmyn and another -v- Vandersteen and others, Case C-201/13, paragraph 9.
^4. Directive 2001/29/EC.
^5. Directive 2000/43/EC.}