Why the CJEU decision in Deckmyn is broader than parody
Transcription
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! [email protected] @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