Comments for ‘Parody’ becomes a concept of EU law: something to applaud or to fear?

Answer to the first question:
All of them – parody, pastiche and caricature have something in common. They express a new view on particular situations, issues and symbols. All of them refer to something, which has already been existing and also they create an original view because they were created by another person who has its own opinion. They can generate debate of public interest – they have a message which should be delivered to the public. And because of this, all of the three should be included in the exception. We have also made a research and found out, that they are not the same. Parody should criticize, pastiche should just show but not criticize and caricature shows some particular person in other view – a person is represented in authors eyes.
All of them should then be distinguished and subsumed into the exception.

Answer to the second question:

– Jan: The freedom of expression relating to the content of a parody – as we know, the freedom of expression may be limited – that is because there exists directives such as 2000/43/EC of 29 June 2000 – we can not make a parody which is discriminatory or, I would like to use a example, in London, the Hyde Park is entitled to listen to free speeches however, there is one limitation – you cannot criticize the Queen. In my country (Czech Republic), if hardly offend my president in a public in front of him, they may accuse me of rowdysism. Or if I say untrue about him and place a poster on a wall with that lie, thay may accuse me as well. However, that is in fact the limitation of my expression. In case of parody, it is a part of freedom of expression – in other words it has the same limitations as the freedom of expression.
I think that it is a development rather to fear than to applaud.

– Nóra: If parody classifies as „an appropriate way to express an opinion” (Deckmyn case, para 27.), then it is protected by freedom of expression, but this also means, that the limits of freedom of expression itself also apply for parodies, the latter have the same limits as free speech. According to the ECHR, freedom of expression can be limited „in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary” (Art. 10, para2. of the ECHR). Consequently, there are some limits to parody, but since freedom of expression is wide and can be restricted only in very justified cases (“necessary in a democratic society”), parody-creators do not have to be scared. Therefore it is a development to applaud, since it will prevent the creators from making eg. discriminatory parodies.

Answer to the third question:

– Jan: In Deckmyn case, paragraph 30: “If that is indeed the case, which is for the national court to assess, attention should be drawn to the principle of non-discrimination base on race, colour and ethnic origin“ – “Council Directive 2000/43/EC of 29 June 2000)“. Paragraph 31 which says “In those circumstances, holders of right provided for in Articles 2 and 3 of Directive 2001/29, such as Vandersteen and Others, have, in principle, a legitimate interest in ensuring thhat the work protected by copyright is not associated with such a message.“ – according to the Exception of copyright: Guidance for creators and copyright owners – they assess a question “What if someone uses my work for something derogatory or distasteful?“. They basically say that the rightsholders are and will be able to take legal actions to prevent such use.

– Nóra: Yes, the two fit each other, they are actually the same (while the CJEU stated that „ the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery” (para 33. of the Decknym case), the Guidance for creators and copyright owners defines parody as the following: „parody imitates a work for humorous or satirical effect. It evokes an existing work while being noticeably different from it” (page 7 of the Guidedance)). Moreover, as well as the EU law, the UK law also mentions the case of derogatory re-use, and they both emphasize the copyright-holders’ right to take legal actions in a case of such use. However, the Guidance defines pastiche and caricature also. Finally, the UK law could not contradict the EU law because of the supremacy of the latter.

Answer to the fourth question:
According to the Council Regulation 27/2009 on Community trade mark, the trade marks must differ from each other (Art 7. (b)), they cannot be “contrary public policy or accepted principles of public morality” (Art. 7. (f)), and they cannot even resemble of an earlier trademark (Art. 8.). However, according to the reasoning of the CJEU in the Deckmyn case, parody has to “evoke an existing work, while being noticeably different from it” (para33. of the Decknym case), which raises and interesting question, how it could be done in compliance with the Regulation.

Before giving the answers to the questions asked, a short summary of the case Deckmyn v. Vandersteen should be reminded. This case deals with the concept of parody in the copyright context. Concerning the facts, Mr Deckmyn, reproduced the drawings of the author of Bob and Bobette on the cover page of a small calendar. To express the anti-immigrant views of his party, he replaced the original character, a man throwing coins, by the Mayor of the city of Ghent, and the people catching it, by people of color and people wearing veils. He claimed that his right to do so was protected by the parody exception provided in the EU Directive as transposed in Article 22(1)(6) of the Belgian copyright law, while the author of the original comics, claimed as a plaintiff that the criteria for parody were not fulfilled : no critical purpose, no originality, no humor, no attempt to ridicule the original work. The Brussel’s Court of Appeal asked for a preliminary ruling in front of the ECJ, who answered that, first, the concept of parody was indeed an autonomous concept of EU Law and that, second, the criteria required for its application are that (1) the work must evoke an existing work while being noticeably different from it and (2) constitute an expression of humor or mockery (which will be appreciated by the national judge).

First of all, based on these informations, it appears that parody should be considered as an all-encompassing concept rather than one of the three categories identified in the directive (the other two being pastiche and caricature). Furthermore, the Court doesn’t seem to make a difference, anyway.

Second, it is normal to have, on one side, the possibility to limit the exception of parody and, on the other side, the possibility to protect it : it is an example of how the liberty of expression works – everyone has a right to freedom of expression as long as such a right is not outweighed by the other rights at stake in a particular where a balance between them is required.

Third, the UK Copyright Act provides something a little different from the provision of EU Law, which is that the exception for parody can only be relied only to the extent that it implies a “fair dealing”. Despite the existence of that additional condition, there is no contradiction with the EU Law exception for parody, since the Court itself allows, on the basis of the freedom of expression and the balance of multiple rights, that the exception for parody may not be applied in certain cases. Under this view, it seems that the UK condition is only a precision of what the Court said.

Fourth, the conditions for a parody to be exempted under trademark law are slightly different from copyright law : no exception is allowed, unless the criteria of confusion is fulfilled. Indeed, parody will be forbidden only to the extent that there is a risk that there might be a confusion between the original work and the work based on it. Compared to the conditions identified by the Court in the field of copyright, there is no need for the expression of humor or mockery, only that the work be different enough from the original work so as to prevent any confusion between them.

First issue:
To answer this question I believe we should refer to the definition and meanings of the notions in usual/day to day language. They might be different in their substances but at their core, they all relate to a form of satire and copy of an original piece of work or style. I thus believe the 3 concepts are good together in the same provision.

Second issue:
I don’t consider it as something that should be applauded or feared. National courts must apply strict scrutiny when they determine to whom the freedom of expression will play in favor of. For instance, the parody of the Suske en Wiske cover is related to discriminatory and pejorative humor, which might alter the real author’s notoriety.
On one side, the freedom of expression protects the author of an original work, itself protected by copyright laws. A restrictive interpretation of parody should thus be given in order to guarantee efficient protection and ensure the message of the original work is being carried on.
On the other side, freedom of expression protects authors of caricature, pastiche and parodies. A more extensive mindset should be adopted when determining if such or such work enters one of those 3 categories.
At the end of the day, it might lead to an unsecure feeling of legal security since plaintiffs have no way of knowing whether the freedom of expression will play in their favor or not.

Third issue:
In the Deckmyn case, 2 conditions are being underlined in order to apply the parody exception:
1. It must evoke an original piece of work while being noticeably different.
2. It must contain a form of mockery or humor.
In the UK’s document, the exception for parody, pastiche and caricature is allowed to such extent that it is a fair dealing. Fair dealing is a non quantitative notion which allows you to make use of an original piece of work protected under copyright as long as it is on a moderated and limited way. Copying and parodying an entire work wouldn’t be acceptable.
The UK document also mentions the 2 EU law conditions that should be applied to any parody. My answer is yes, the UK document fits with the parody concept defined in Deckmyn. However, it also introduces the notion of fair dealing, which is absent from the Deckmyn decision. As a consequence, the parody might find broader protection in EU law than in the UK.

Fourth issue:
With the copyright protections, we have the parody exception (art. 5,3k of the directive). No such exception for trademark, we just rely on the article 10 (2) of the ECHR.
When I want to put my right to parody forward, there are 2 ways to see it:
1. Copyrights and Trademarks are exceptions to the freedom of expression (which allows parody). Consequence? Since Copyrights and trademarks are exceptions, courts will consider them with greater scrutiny, thus allowing a broader application of parody exceptions.
2. Copyrights and Trademarks are principal ant the parody is the exception, the situation is thus reversed, and parodies must be considered with greater scrutiny, narrower application of parody exceptions.

My answer would thus be negative. For trademark, we see an application of article 10(2) of ECHR, which grants the freedom of expression with legal exceptions mentioned in the article, the parody exception will thus be applicable at all times unless we fall in those exceptions.

But using a parody exception under copyright requires to respect a few conditions mentioned in the Deckmyn case and the EU law directive.

The conditions to use a parody exception under trademark and copyright law don’t fit together.

First of all, pastiche is defined by the Merriam-Webster dictionary as:
“1. A literary, artistic, musical, or architectural work that imitates the style of previous work; also : such stylistic imitation
2. A musical, literary, or artistic composition made up of selections from different works”
Caricature is defined as:
“1. Exaggeration by means of often ludicrous distortion of parts or characteristics
2. A representation especially in literature or art that has the qualities of caricature
3. A distortion so gross as to seem like caricature”
And parody is defined as:
“1. A literary or musical work in which the style of an author or work is closely imitated for comic effect or in ridicule
2. A feeble or ridiculous imitation”
If we look at those definitions, it appears they are quite similar, but each term still has a distinct meaning. However, the “common denominator” seems to be parody: while both pastiche and parody are imitations, pastiche doesn’t seem to have the humorous element that parody has. On the other hand, caricature and parody both have this humorous trait, but parody seems a more general concept. Therefore, while an argument in favor of referring to all three terms when talking about this exception to copyright could be supported, it seems acceptable to me that, out of practical considerations, this exception is being referred to as “the parody exception”. In the Deckmyn case, the court underlines that the parody exception is justified by the right to freedom of expression. Therefore, this exception, according to the court, there are no restrictive conditions for a work to be considered a parody. This allows for a broad definition of the word “parody”, which could include pastiches and caricatures. In any case, the rationale behind those three very similar exceptions being the same, it seems to me it doesn’t matter all that much if we refer to only one of them (especially the largest and most known concept of the three).

Secondly, the reasoning of the court, while logical, could prove quite dangerous. Indeed, the court’s reasoning is the following: In theory, because of copyright law, it is illegal to copy a copyright protected work. However, the article 5, §3, k) of Directive 2001/29 provides an exception to copyright law when the purpose of the copy is caricature, parody or pastiche. According to the court, the rationale behind this exception is that those kinds of works are the expression of the right to freedom of speech. Indeed, not providing such an exception for those kinds of works would mean an automatic censuring of all those works, thereby substantially limiting the right to freedom of expression. According to the court, national courts should thus proceed with a balance of interest between copyright and the right to freedom of expression in such cases. Essentially, national courts must ask themselves if a certain parody is a legitimate use of the right to freedom of expression, and if this is the case, if it is more important to protect the interest of the creator of the parody or to protect the interest of the author of the copyright protected work. As the right to freedom of speech is not an absolute right, it can be limited and some types of “speeches” are not protected (for example hate speech). Thus, if we follow the court’s reasoning, if a parody is a type of speech not protected by the right to freedom of speech, it would not benefit from the parody exception (for example if a parody is actually hate speech, it would not be protected by the right to freedom of expression and would thus, according to the court, not fall within the parody exception, even if sensu stricto it is a parody). In a similar way, if we push the court’s reasoning a little further, a copy of a copyright protected work which is sensu stricto not a parody, but which does constitute a legitimate use of the right to freedom of expression could still benefit from the parody exception (because the court gives the concept of parody a broad meaning). Thus, according to the court, freedom of expression can both favor and limit speech for parody purpose. This could prove to be quite dangerous, as it gives national courts the power to determine not only what parody is, but also what a “legitimate parody” is, without any criteria or guidelines. In practice, judges would thus be allowed to censure parodies thanks to copyright law. This is quite preoccupying. In my respectful opinion, it would have been better to determine some criteria for the parody exception to apply (just like there are criteria for determining if a measure is proportionate under the ECHR).

Concerning the third issue, the UK Copyright Act adopts the same purposive approach as the CJEU but adds a criterion: the “fair dealing” criterion: a parody can copy a protected work, as long as the use is considered reasonable and fair. There is however, no reference to freedom of speech or any other fundamental right. Also the UK Copyright Act seems to adopt a more restrictive concept of parody, caricature and pastiche. In that respect, this Act substantially differs from the Deckmyn case, which could be a problem later on.

Regarding the fourth issue, it must be noted that an essential condition of Trademark is distinctiveness. This makes it difficult for parodies to be allowed under Trademark law: one of the essential purposes of trademark protection is to guarantee the authenticity and origin of the protected work. Thus, a sign must be distinctive to be trademark protected: if there’s any confusion possible, trademark law does not apply. One could consider parodies are confusing and thus it would be counterintuitive to allow exceptions to trademark law for something which adds confusion, the main thing trademark law is combatting.
However, one could argue that if it is clear enough that it is a parody, if there is only likelihood of association and not likelihood of confusion, such an exception could be acceptable. One could indeed argue that parody should be possible, if there’s enough contrast between the parody and the original. The difficulty however is to determine when there’s such a contrast and when there’s intent to parody (and not only to copy).
As such, the criteria advanced by the Advocate General in the Deckmyn case (“to evoke an existing work while being noticeably different from it and to constitute an expression of humor or mockery”) could be used to determine whether a parody benefits from a parody exception to Trademark law or not. While the court claims these are criteria contained within the “everyday language” meaning of a parody under copyright law, I would argue that an explicit reference to the “noticeably different” criterion is required under trademark law. Indeed, it seems to me that, because of the specific nature, purpose and effect of trademark law (and its difference in scope, namely the duration of protection) the use of a “noticeably different” criterion to determine if something qualifies as a parody under trademark law would be justified.
Gilles Hachez & Mathieu Gombault

1st issue:

According to me, having an exception covering solely parody brings more interpretation power to the judge. The problem occurring when you have an exception concerning parody as well as caricature or pastiche is that the provision will seem exhaustive. It numbers three things that are slightly different, but they still belong to one same family, which is parody (broadly defined). Maintaining only the exception of parody would add flexibility to the exception, which would then be more in line with the fundamental right to freedom of expression.

2nd issue:

Parody undeniably favors from the right to freedom of expression. The viable existence of parody depends on that right. Though it is true that freedom of expression belongs to everyone, so would it be possible that the parody at stake infringes someone else’s freedom of expression? How should the judge rule in such a case? This situation seems highly theoretical, but is worth mentioning. It would lead to a balance of interests such as we see so often at a European level.

3rd issue:

The UK copyright Act allows one to use another person’s material as long as the amounts of material is limited which is called the obligation of “fair dealing”. Parody evokes a work while being noticeably different from it. You cannot take over the whole work itself. If someone used someone else’s work in order to deliver hate messages or defamatory speech, the right holder of the work can require the parody to be taken down. That is exactly what the CJUE did in the Deckmyn case: it basically held that when the parodied work is used in a defamatory way or in a way which is contrary to the public public order, it may be censured by the right holder of the work at stake. So there is a clear parallelism between European and English law in that matter.

4th issue:

Article 5(3)(k) of the 2001/29 Directive states that material used as parody, caricature or pastiche shall be protected. However, in the Deckmyn case, the CJUE holds that “If a parody conveys a discriminatory message, a person holding rights in the parodied work may demand that that work should not be associated with that message”. This sentence is somewhat mysterious. Does it grant the property right holder the right to censure someone else’s freedom of expression? I suppose it does, in a way. However, neither international nor national law tend to consider freedom of speech as an absolute right. Hate speech and discrimination cannot be encouraged in any way for example.
There is no doubt about whether Article 5(3)(k) is to be considered as an absolute right or not. It is a matter of public interest that some speeches be, if not prohibited, at least strongly discouraged. That is when the judge intervenes: in the Deckmyn case, the CJUE confirms this exception of freedom of expression when discrimination is at stake. Furthermore, in an organization like the European Union, that consists in people from different countries, different cultures, and different ethnicities, it would have been rather bold to leave a door open to discriminative speech.

“Parody” becomes a concept of EU law: something to applaud or to fear?

1st issue: Since parody, pastiche and caricature cover three different realities, it might seem more appropriate to have a different law provision for each of them. This way, they’ll benefit of a higher protection. In fact, if we separate the three concepts and attribute different conditions to each of them, the protection is higher because the specific conditions for each have to be fulfilled in order to invoke them as an exception to copyright.

2nd issue: Here comes the question of a fair balance of the interest. In fact, on the one side, freedom of speech permits the exception of parody to copyright. The author of Vlaams Belang can express himself through a parody if it respects 2 conditions : evoke an existing work, while being different from it and constitute an expression of humour or mockery.
And on the other side, the author of Suske and Wiske can invoke his freedom of expression in order not to be copied, and to have his work respected.
The right of freedom of expression is not an absolute right. Therefore, a fair balance of the interests at stake has to be done by the national judge, taking into account all the circumstances. This way, the judge can evaluate which of those two freedoms of expressions has to prevail on the other.
In each case, one of the parties will be prejudiced.

3rd issue: No, the UK copyright act does not fit the concept of parody and criteria defined in Deckmyn because this Act doesn’t the two conditions highlighted in the Deckmyn case. In fact, the UK copyright Act only requires for the parody to use “limited amounts of another’s material”. Moreover, concerning the condition of mockery, the Act seems to imply that the parody “does not have to comment on the original work of the author. It can be used to comment on any theme or target”. Whereas the Deckmyn case seems to say that, in any case, the image of the author is harmed, even if the mockery concerns another theme or target than the author himself.

4th issue: The conditions for a parody to be exempted under trademark law (under EU law) do not exactly fit with the requirements recently outlined by the CJEU in Deckmyn. In fact, the conditions seem to be stricter under trademark law, the courts are required to proceed to a ‘likelihood of confusion” test. In trademark law, if there is just a likelihood of confusion between the trademark protected work and the parody, the parody will be set aside. The two European provisions (First Council Directive 89/104/EEC [Directive 2008/95/EC Amendments 46] in Article 5(1) (a) 47 and Trademark Regulation No. 40/94 in Article 9 (1)(a) 4) include special provisions for the “identity” case. Here the protection seems even stricter since they « afford trademark owners an absolute right to prohibit third parties from using signs that are identical on products that are exactly alike ».
We see that American law, compared to EU law, is less severe concerning trademark law and parody. They assimilate cases where identical marks are used for identical products to cases where the resemblances are just similar.

In Deckmyn v. Vandersteen case of the ECJ (after under « Deckmyn »), the court states that the notion of parody (of art. 5(3)(k) of Directive 2001/29/EC) is an autonomous concept of EU law. And that the essential characteristics and conditions are twofold : (i) to evoke an existing work while being noticeably different from it and (ii) to constitue an expression of humour or mockery.
This art. 5(3)( k) is an exception to art. 2 and 3 of the Directive so the the Copyright owner rights.

First of all, we will talk about the three types of « genre » covered by the art. 5 (3)(k) of Directive 2001/29/EC and ; second, we will analyze the parody exception in face with the freedom of expression and see how this freedom both extend and prohibit parody. We will then see if the parody exeption of the UK Copyright Act fits with the concept and criteria defined in Deckmyn. Finally, We will discuss if the conditions for parody to be exempted under trademark law (under the EU law) fit with the requirements outlined by the CJEU in Deckmyn.

So, first of all, we think it is worth to refer to those three types of genres (parody, pastiche and caricture) because they don’t cover the same reality. As explained in the Intellectual Property Office online guide, parody imitates a work for humorous or satirical effect ; pastiche is musical compostion made up of selections from different sources to imitate the style of another artist or period and caricature portrays someone in a simplified or exaggerated way.
But on the other hand, there are arguments for having a law provision referring to a parody solely. First of all, even if we can see differences between the three oncepts, their goals is more or less the same : making fun of the original work, person or author. Second, if we have a look at the common name of the provision they talk about the « parody exception ». Third, since Deckmyn we know that we have an autonomous concept of parody in EU law but we will have to wait 2 other judgements to know if there are some autonomous of pastiche and caricature concepts in EU law.

The CJEU has clarified that the parody exception is to be applied as a very broad concept in European law in order to guarantee a fair balance between copyright enforcement and the right to freedom of expression and information but parody could be prohibited on the basis of freedom of expression.
Indeed, the court at §25 of the decision holds that « it is not disputed that parody is an appropriate way to express an opinion » thus freedom of express justify and protect the parody exception. The court chooses for a wide and flexible parody concept (see D. Voorhoof and I. Hoedt-Rasmussen, EU Court of Justice delivers preliminary ruling in Belgian Parody Case, 8 Sept. 2014 p. 3) to follows its objectives that are (i) to safeguard its purpose and ( ii) to enable the effectiveness of that opinion.
But … the court seems to support a restrictive interpretation too. How ?
The court opens the door to a « fair balance ». Even if art. 10 ECHR and art. 11 EU Charter (consacre) freedom of expression and thus justify and protect parody ; this provision can prohibit parody too. At art. 10(2) ECHR, it is written that any limitation to the right of freedom of expression can only be justified if it is « prescribed by law and necessary in a democratic society ». So there is a need of a fair balance of interest and it is a condition to the parody exception. While doing so the court might balance freedom of expression (here : discrimination) and copyright owner rights. In that case (discrimination case) the freedom of expression and the fair balance can prohibit the parody exception.
So this is something to applaude if the « fair balance » is well done. But it is up to the national courts to make the balance and we agree on the fact that it is something to fear because, as said by Voorhof and Hoedt-Rasmussen the CJEU « returns hot potatoes to national court ». The courts may use any pretext to reduce freedom of expression and thus parody wich is totally in contradiction with the first objective of the court.

The UK Copyright Act of Oct 1, 2014 also provides for an exception for the purpose of parody. We will analyse if it fits to the criteria defined in Deckmyn.
The parody exception as defined in Deckmyn must fulfilled two conditions : (i) evoke an existing work while being noticeably different and (ii) constitue an expression of humour or mockery.
In the IPO online guide, the « parody exception » only permits use for the purpose of caricature, parofdy pastiche to the extent that it is « fair dealing ». they refer to this concept that allows to make use or a limited, moderate amount of someone else’s work. There is no statutory definition of such notion but some factor scan be identified by the courts are relevent in determining wheter a particular dealing with a work is furst such as (i) whether the work affects the market for the original work or not (whether it could be use as a substitute) and (ii) whether the amount of the work taken is reasonable and appropriate (usually only part of a work may be used. At the light of the particular meaning of this notion, we can say that the first condition is fulfilled.
They also require that parody involve an expression of humour or mockery (but it does not have to comment on the original work or its author) so the second condition is fulfilled.

The fourth question requires to compare the conditions for not having an infringement under trademark law and copyright. Indeed, if the conditions for exempting an use under trademark law are different from exempting an use under copyright, there is a risk (in case of cumulation or overlap) that something prohibited under one right might be allowed under another IP right.
Regarding copyright, the parody exception is rarely laid down in national laws as in France, Belgium and in Germany. The parody exception is also guaranteed under the EU Infosoc Directive of 22 May 2001 (Art. 5 (2) (k)). The two conditions to constitute a parody in the meaning of this directive are for the reproduced piece of work :
(i) to evoke an existing work while being noticeably different from it and
(ii) to constitue an expression of humour or mockery.
As to trademark law, there is no express exception in most European laws and there is nothing when you look at national laws and CTM. Moreover, the criterion of confusion in principle allows parody, but it is more complicated to make claims based on freedom of expression in the field of trademark law than in the field of copyright, partly because there are these exception for irony for copyright while in the case of trademark you can only rely on article 10 ECHR §2.
Art 10 ECHR: “2. The exercise of these freedoms since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security […] for the protection of the reputation or rights of others […]”
Conditions:
(i) Prescribed by a law (trademark/copyright act)
(ii) Protection of copyright and trademark as a « right of others »
(iii) Necessity means proportionate to a legitimate goal, necessary to a democratic society to limit freedom of expression. In order to assess if it is necessary, you have to assess whether the interference is proportionate to a legitimate objective.

In its decision in “Deckmyn v. Vandersteen”, the European Court of Justice states that “parody” is an autonomous concept of EU law. It also defines the parody as made up of two main characteristics: first, it must evoke an existing work while being “noticeably different from it”; secondly, it must constitute an expression of humour or mockery.

Article 5 (3) (k) of the 2001/29 Directive on copyright in the information society provides an exception to copyright “for the purpose or caricature, parody or pastiche”. This exception is often referred as the “parody exception”. Then, is it necessary to make a distinction between these three concepts? We believe so. Even if they share common characteristics, they refer to different realities.

Pastiche, parody and caricature all consist in the use of a protected work and in its distortion to create a new work. But, while parody and caricature use this work for humorous or satirical effects, pastiche does not. Pastiche only consist in the imitation of the style of an artist or period. We still have to state the difference between caricature and parody. The main characteristic of caricature is that it always consist in exaggeration. We reckon that gathering these three concepts under one provision referring to parody solely would be a big mistake. By doing so, many works would lose the protection of this provision because parody is not always caricature or pastiche, at least if we refer to the definition of parody given by the European Court of Justice.

The parody exception to copyright is, of course, justified by the freedom of expression. But, in this decision, the European Court of Justice also seems to state that parody could be prohibited on the basis of freedom of expression… Thus, can freedom of expression both favour but also limit speech through parody?

Parody is protected by the freedom of expression. In this purpose, the European Court of Justice defined “parody” in broad terms, allowing this concept to cover many different sorts of works. It is also the reason why the parody exception exist. But the freedom of expression itself is not absolute. Indeed, it can be restricted by other fundamental rights such as, in this case, the right to non-discrimination. By seeking the protection of the freedom of expression, you also have to deal with its limits.

In this case, the European Court of Justice provides that “holders of copyright rights have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with a discriminatory message or hate-speech”. Even more, a fair balance must be stroke between the interests of the rights owner and those of the user of the work in the purpose of parody. Some authors wrote that, by doing so, the Court restricts the scope of the parody exception on an irrelevant ground. We support this opinion. By doing so, the Court allows an exception to the parody exception. As copyright holders are not expected to authorise spontaneously the transformative use of their original work, this could open the door to many abuses, and, at the end of the day, to the breakdown of the parody exception.

Moreover, as “parody” now benefits from an autonomous definition by EU law, member states have to adapt their national legislations to community law. The UK Copyright Act states that you can use someone else’s work without his permission for the purpose of caricature, parody or pastiche, to the extent that it is “fair dealing”. Fair dealing means that you can only use the work like a fair-minded and honest person would, in a moderate amount. Therefore, the UK legislation adds a third condition, in order to benefit from the parody exception. This does not fit with the parody concept and criteria defined by the European Court of Justice in “Deckmyn”, because it is more restrictive.

To conclude, in this case, the parody exception is only dealt with in copyright law. But the question could also be raised in relation with trademark law. There is no explicit exception for parody in the Trademark Directive. So, should we apply the “Deckmyn” requirements to trademark law, even if these two intellectual property rights are different?
In the “CJEU clarifies scope of exception for parody: not just joking around” article by A. Flerens and R. Schoefs, we found some tracks to define the conditions for a parody to be exempted under trademark law.
First, the parody must be distinct from the original work, in such a way that it does not create confusion for the public. We reckon that this idea is close from the criteria set out by the European Court of Justice under which a parody must “evoke an existing work, while being noticeably different from it”.
Then, the humoristic criteria is also taken into account by trademark law. The work must constitute an expression of humour or mockery of the copyright or trademark work.
Finally, a third criteria related to exception to trademark can be found in the Benelux Convention on Intellectual Property. A trademark for parody is allowed when there is a “due cause”. We can link this criteria with the “fair dealing” concept added by the UK in its Copyright Act.

We believe that trademark should also be allowed to be parodied. This is fundamental for the right to freedom of expression (for example, you should be able to parody a company’s logo to criticize its policy). To do so, courts should be allowed to apply in a trademark case the same criteria for parody as those developed in the “Deckmyn v. Vandersteen” case.

First issue : In my opinion, the word “parody” includes caricature and pastiche. According to the Oxford dictionnary, a caricature is “an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect”. The same dictionnary proposes the words pastiche and caricature as synonyms. So I do not think it was worth to add these two last words. However, it does not really change anything, so why bother ? The importance is put on the object. As soon as it is a parody as the Directive defines it, it falls under the parody exception regardless of the unesefull debate to know whether it is considered more like a caricature or pastiche…

Second issue : On the one hand, it is important that parodies are protected by freedom of expression. It is a fundamental right to criticize public authorities or other public figures by the use of humor and in particular, humoristic drawings. In Belgium, Kroll for example is a well-knows “caricaturer” who is present in the poltiical debates in TV programms and regurlarly gives his opinion through caricatures. On the other hand, this right should not be absolute. Other fundamental rights such as the right to privacy are in stake. It is important for judges to have the possibility to make a balance between fundamental rights to decide wheter one should prevail on the other on the basis of the principle of proportionnality.

Third issue : In a few words, without going to much into details, the UK regime seems to be far more precise than the directive. It is, as far as I am concerned, related to the Common Law approach of UK law regime. The Common law is a casuastic regime that enjoys the precision of good definitions. It does not function with asbtract law as we know it in our civil law system. The clearest illusration of this is that the UK regime defines the three ideas of pastiche, caricature and parody where as we do not have such definitions in EU law where the directive imposes an abstract idea of parody that the judges have to deal with.

Fourth issue : Article 5(3)(k) of the 2001/29 Directive on copyright in the information society provides that Member States might exempt from copyright a “use” of a protected element “for the purpose of caricature, parody or pastiche“. On the other side, the two conditions outlined by the case are the following : first it must evoke an existing work while being “noticeably different from it”; secondly, it must constitute an expression of humor or mockery. The main problem is that the directive does not say anything about humor where as the case does. It is understandable that the directive would not talk about humor since it is a subjective opinion. What is funny ? A directive should not tell us that. But can a judge decide what is funny or not ? this is in my opinion where the debate is. I would say that this decions is not a good decision since the Court falls into the deep dangers of subjectivity. This case seems to allow the Court to control a national court decision that decided if the work constituted an expression of humor. As stressed in the text before, the EU is a union of very different States regarding their historical and cultural background. Something funny in Belgium would not be in Bulgaria and vice versa… Furthemore, judges are from all the countries in EU, so how would they agree ? It would be quite a mess to assist a judge reunion where they have to argue if something is funny or not. It is not the role of the EU judges. It seems to me, regarding the words of the directive that it actually leaves a great hand, a great discretionnary room to the member states and not on the contrary to the Court. One could argue that this case does not interpret the directive as it should be. It is my opinion. The case should have left the matter to the Court of Appeal. We can see that Belgian case law is less protective for caricature since “to qualify as parody, a reuse of a protected work must fulfil a critical purpose; itself show some originality; display humorous traits; seek to ridicule the original work; and not borrow a greater number of formal elements from the original work than is strictly necessary”. With these elements taken into account the case holding could be different if we regard the EU or Belgian interpretation of parody. However, since the CJ’s interpretation prevails on Belgian judges’ one, Belgian case law should bow the head. It is quite a pity since Belgian judges know better about this issue than the EU… In Conclusion, I think that this decision was not a smart move from a EU institution point of view since it became a new argument for the growing number of euro-sceptics against the EU.