Why the CJEU decision in Deckmyn is broader than parody

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
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?
Background
Questions referred to the CJEU
• Is the concept of 'parody' an independent concept in EU law?
• What are the characteristics of a parody?
The AG Opinion and the CJEU decision
AG Cruz Villalón
• 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
CJEU
• 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
Practical implications
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
a) Intent
• Freedom of expression as “the right to mock the high and mighty”
• Art 10 ECHR applies to “everyone”
b) Effect
• For whom? Judge? Standard of particular MS? “European society” invoked by AG?
‘Average consumer’ of parodies?
• Free movement
Systematic relevance
1) Exceptions and limitations
in Article 5 of the InfoSoc Directive
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”)
Any change?
• From flexibility …
• 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?
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]
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)?
“Legitimate interest” as a moral right?
• De facto harmonisation as regards:
1. When right can be activated
• Only disparaging treatment?
2. No attribution required
• The French lois
3. Right holder(s)
• Language of three-step test in Article 5(5)
• But what about droit d’auteur countries?
Will CJEU case law
influence
new Commission?
Thanks for your attention!
e.rosati@soton.ac.uk
@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