Brussels, 22/05/2014 (Agence Europe) - A work which constitutes a “parody” must be subject to the delicate balance between the freedom of expression and the other fundamental rights, such as human dignity or a ban on discrimination, said Advocate General Cruz Villalon, in his conclusions returned before the Court of Justice of the EU, on Thursday 22 May.
The definitiojn of the notion of “parody” and the legal implications of it are the two questions to be answered by the European judges in a case (C-201/13) involving the Belgian extreme right-wing political party Vlaams Belang and the owners of copyright to the cartoon series, Bob et Bobette. The owners brought the matter before the Court of Appeal of Brussels, accusing Vlaams Belang of violating their copyright by using one of their book covers as inspiration for a drawing (representing the mayor of the city of Ghent as benefactor to immigrants), which was used in the political party's publications. The leaders of this party argue that the picture is a political caricature which comes under the heading of parody and therefore cannot be prohibited by the authors of the original work, as provided for by Belgian legislation, under Community law.
The problem in this case lies in the fact that there is no definition of the notion of “parody” in the directive on copyright (2001/29/EC). The Advocate General draws the conclusion that parody is an “autonomous notion of EU law”. He defines it as an imitation of a burlesque nature. As regards imitation, it is up to the member states to determine whether a parody has sufficient elements of creativity compared to the original work not to be considered a copy. As regards the burlesque nature, the parody must “aim to amuse or to mock” and the national authorities also have considerable leeway to decide on this.
The case is complicated still further due to the political nature of the parody in question. In the view of the Advocate General, it is necessary in this context to use a system of weighting between the freedom of expression and fundamental rights. If a work remodels an original in such a way as to put across “a message which is radically contrary to the most profound beliefs of society”, then it cannot be seen as a “parody”, according to Mr Cruz Villalon. However, the author of an original work cannot object to this work being parodied, simply on the grounds that he or she, or the public at large, do not agree with the message. It is therefore up to the national judges to determine on a case-by-case basis whether an imitation can be accepted as a parody. (JK)