Parody and Copyright in the European Union Law

Abstract

This paper will examine the relationship between parody and copyright in the European Union law. In the paper will also be examined how the relationship is regulated in a few EU Member States (Finland, France, the Netherlands and the United Kingdom) and how the EU law compares to Australian, Canadian and US law. The comparison will be done to give a view on which other ways the relationship between parody and copyright may be regulated and to give ideas for the development of the EU law.

Parody and copyright are both linked to fundamental rights in the EU law; parody to the freedom of expression and copyright essentially to the right to property even though it can be seen to advance the freedom of expression as well. The relationship between parody and copyright in the EU law is regulated essentially in the Information Society Directive (The InfoSoc Directive). According to it the Member States may set out a parody exception to copyright holders’ rights found in Articles 2 (right of reproduction) and 3 (right of communication to the public of works and right of making available to the public other subject-matter). The exception means that one can create and publish a parody without violating these rights. Setting out the parody exception is voluntary for the Member States. However, the InfoSoc Directive does not define parody. A change to the lack of definition was provided in the European Court of Justice’s (ECJ) preliminary ruling Deckmyn and Vrijheidsfonds (Deckmyn) in which parody was established as an autonomous concept in the EU law and given a uniform definition in the EU law. The ECJ based the definition on its usual meaning. According to the definition ‘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’. It is argued in the paper that ‘humour’ refers to a humorous intent as opposed to a humorous effect because this is more in line with the freedom of expression and because of practical reasons.

Adding new conditions on the top of the conditions of the ECJ definition is not likely to be possible for the Member States as this would, for example, reduce the harmonization effect of the ECJ definition. Some Member States still have additional conditions for parody that existed already before Deckmyn. Applying them after Deckmyn can be seen to be problematic and it is uncertain whether this would be lawful.

France, the Netherlands and the UK have set out a parody exception into their laws, while Finland has not where parody is allowed under a conversion done in free association or quotation right provisions. Out of the other countries, Australia and Canada have set out an express parody exception into their laws, while the USA has not where parody is allowed under a fair use doctrine which does not exist in the EU law. Australia and Canada have as a condition for parody a comparable fair dealing condition. It is argued in the paper that adding a fair use doctrine into the EU Law could be beneficial in the case the usual meaning of parody changes. Furthermore, it is argued that it would be beneficial for the EU to set it mandatory for the Member states to set out the parody exception as this would increase the legal security in the EU.