In the middle of January, Pirate Party Member of European Parliament, Julia Reda, shared a draft of her report examining the implementation of the Information Society Directive 2001/29/EC (often called the ‘InfoSoc Directive’). This report has been praised by some as groundbreaking for its progressive stance on copyright in the digital age, while others have criticized it as being too radical or even unacceptable. These strong reactions highlight the widespread interest in the report and its potential impact, particularly within digital rights communities.
One area of the report that has sparked debate is its approach to parodies. Currently, Article 5.3(k) of the InfoSoc Directive allows EU countries to create exceptions within their own copyright laws for parodies, pastiches, and caricatures, even if these uses would typically infringe on the exclusive right to reproduce a copyrighted work. The UK, for example, has taken advantage of this provision, incorporating a parody exception into its copyright law. The interpretation of this provision was clarified by the Court of Justice of the European Union in the Deckmyn case, which offered guidance on how national courts should apply this exception in specific situations.
On page 6 of her report, Julia Reda proposes that the exception for caricature, parody, and pastiche should not be limited by the purpose of the usage. This suggestion, presented without further clarification, raises some concerns.
The parody exception is specifically designed to allow limited exceptions to the exclusive rights of copyright holders. Therefore, according to international agreements like the Berne Convention, TRIPS Agreement, and WCT, any national exceptions must adhere to the “three-step test.” This test requires that such exceptions be limited to very specific cases that do not interfere with the typical use of the copyrighted work and do not unfairly harm the original creator’s rights. French authorities have voiced concerns that a parody exception not tied to the purpose of parody is unlikely to meet the “three-step test,” particularly the requirement of being limited to specific cases. This requirement emphasizes the need for a balanced approach that considers the interests of both copyright holders and those using copyrighted material.
The current parody exception, with its focus on purpose, tries to strike this balance by permitting the use of copyrighted material for parody, caricature, or pastiche only in limited situations. This reflects a compromise between the rights of creators to control and profit from their work and the rights of others to use existing works to create new, transformative ones. Removing the purpose limitation could lead to an overly broad exception that contradicts these international obligations.
However, the digital rights group La Quadrature du Net suggests that Julia Reda’s goal is to allow the parody exception to cover creations that are not intended to be humorous. If this is the case, it might be achievable within the existing framework of the parody exception.
The Court of Justice of the European Union, in the Deckmyn case, defined parody as needing to fulfill two criteria: it must be clearly reminiscent of the original work while also being distinctly different from it, and it must convey humor or mockery.
It’s important to note that the requirement for humor or mockery doesn’t preclude expressions of criticism. This suggests that a broad understanding of “humor” should be applied, encompassing playful expressions, homages, or even serious commentary. This broader interpretation aligns with how the parody exception has been applied in French courts, which have a long history of considering a wide range of expressions, including satire, under this exception. The key limitation is that the expression must not be harmful to the original creator or their work. If it is, the original creator retains the right to take action to protect their moral rights, particularly the right to the integrity of their work. Additionally, an individual could pursue legal action for defamation if they believe they have been unjustly portrayed.
The main justification for having a parody exception is to support freedom of expression. This freedom is already acknowledged in the InfoSoc Directive and was reinforced in the Deckmyn case. Julia Reda’s report further underscores the crucial connection between copyright, related rights, and freedom of expression, all of which are protected by the Charter of Fundamental Rights of the European Union.
Many share Julia Reda’s concerns about the challenges of uniformly implementing copyright exceptions across the EU under the current InfoSoc Directive. Her proposal to make these exceptions mandatory is a welcome one that could lead to greater harmonization across the EU.
Finally, it’s important to remember that the report is still in draft form. It will now be reviewed by the Legal Affairs Committee, the Internal Market Committee, and the Culture Committee. The report presents important ideas, but there are opportunities for refinement. As the report progresses, careful consideration should be given to the specifics of each provision, including the parody exception, to ensure that any expansion of the exception maintains the desired balance between the interests of copyright holders and those who create parodies.