AG Opinion on nature and significance of "parody", Art. 5(3)(k) of Directive 2001/29/EC

On 22 May 2014, Advocate General (AG) Cruz Villalón released his Opinion in Case C-201/13 Deckmyn, a reference for a preliminary ruling from the Brussels Court of Appeal concerning the following questions around the nature and significance of parody within Article 5(3)(k) of the Information Society Directive 2001/29/EC:

1. Is the concept of 'parody' an independent concept in European Union law?
2. If so, must a parody satisfy the following conditions or conform to the following characteristics:
- the display of an original character of its own (originality);
- and such that the parody cannot reasonably be ascribed to the author of the original work;
- be designed to provoke humour or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
- mention the source of the parodied work?
3. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?

The AG confirmed that, in his opinion, parody must be regarded as an autonomous concept of EU law; a parody must be original, targeting an earlier work or something/someone else, should be humorous and comply with the deepest values of EU society. In his view, it is not necessary to distinguish between parody, caricature and pastiche. However, it is left to the EU Member States to determine whether a parody is sufficiently original and not a mere reproduction with slight alterations of an earlier work.

Finally, the AG also distinguished between the subjects of a parody, its effect and content. In relation to its content, fundamental rights issues might arise, i.e. how to balance copyright and the parodists' freedom of expression. According to the AG, parodies that transmit a message which is radically contrary to the fundamental values should be prohibited.