1. University of Southampton Joint iCLIC/CIPPM Seminar
Not just a court of laugh resort Why the CJEU decision in Deckmyn is broader than parody
Eleonora Rosati
University of Southampton
Joint iCLIC/CIPPM Seminar
26 November 2014

2. Contents
Background
The Opinion of AG Cruz Villalón (22 May 2014) and the decision of the Grand Chamber of the CJEU (3 September 2014)
Practical implications
A matter of actual or intended laugh? For whom?
Systematic relevance of the decision
The (in)flexibility of Article 5 of the InfoSoc Directive
What does “legitimate interest” mean?

3. Background

4. Questions referred to the CJEU
Is the concept of 'parody' an independent concept in EU law?
What are the characteristics of a parody?

5. The AG Opinion and the CJEU decision
AG Cruz Villalón
CJEU
Structure: original
Subject: can target an earlier work or something/someone else
No need to distinguish between parody, caricature and pastiche
Effect: humorous (intent or effect?)
Content: compliant with the deepest values of EU society
Features:
evoke an existing work while being noticeably different (no originality though)
constitute an expression of humour or mockery (according to whom??)
“Legitimate interest” not to be associated with discriminatory parody

6. Practical implications

7. A matter of actual or intended laugh?
Ambiguity also due to AG Opinion
But not isolated …
New s30A CDPA (“for the purposes of … parody”) vs IPO Guide (parody imitates a work for humorous or satirical effect)
Scope of exception is what is at stake
Intent
Freedom of expression as “the right to mock the high and mighty”
Art 10 ECHR applies to “everyone”
Effect
For whom? Judge? Standard of particular MS? “European society” invoked by AG? ‘Average consumer’ of parodies?
Free movement

8. Systematic relevance

9. 1) Exceptions and limitations in Article 5 of the InfoSoc Directive

10. How precise is Article 5 “shopping list”?
Just “categorically worded prototypes” (Hugenholtz-Senftleben)?
In practice diverging national implementations
Just think of private copying
But also parody!
New s30A CDPA: fair dealing
Article L 122-5(4) French IP Code: compliance with “lois du genre”
All this despite:
Recital 31 (“Existing differences in the exceptions and limitations … have direct negative effects on the functioning of the internal market”)
Recital 32 (“Member States should arrive at a coherent application of these exceptions and limitations”)

11. Any change? From flexibility … … To inflexibility
AG Trstenjak in Padawan (“considerable flexibility”)
Confirmed in Painer
AG Sharpston in VG Wort (“certain freedom of action”)
… To inflexibility
CJEU in Padawan [36], TV2 Danmark [36], ACI Adam [33]-[34], and Deckmyn
In past year alone CJEU has quashed number of national copyright laws
(Svensson,) OSA, ACI Adam
Misunderstanding, internal market or both?

12. 2) “Legitimate interest”
“holders of the rights provided for in Article 2 and 3 of Directive 2001/29 … have, in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with [a discriminatory] message.” [31]

13. Possible interpretations
Public law/fundamental rights perspective: non-discrimination
IP perspective: right to object tarnishment (trade mark concept)
Copyright perspective
From 3-step test
Moral right of integrity (and attribution)?

14. “Legitimate interest” as a moral right?
De facto harmonisation as regards:
When right can be activated
Only disparaging treatment?
No attribution required
The French lois
Right holder(s)
Language of three-step test in Article 5(5)
But what about droit d’auteur countries?

15. Will CJEU case law influence new Commission?

16. Thanks for your attention!
@eLAWnora
See further E Rosati, ‘Just a matter of laugh? Why the CJEU decision in Deckmyn is broader than parody’ (forthcoming) Common Market Law Review