Parody After Deckmyn – A Comparative Overview of the Approach to Parody Under Copyright Law in Belgium, France, Germany and The Netherlands

Abstract

Many EU Member States have a well-established approach with regard to the use of copyright-protected works for the purpose of parody. As a consequence of the CJEU’s Deckmyn decision, in which the Court held that parody is an autonomous concept of EU law and defined that concept, their approach may need to change. This article looks at the criteria developed by various national courts to determine the lawfulness of parodies prior to Deckmyn and at the role these criteria can play after Deckmyn. It will be argued that even though the adaptation right is not explicitly harmonized by the InfoSoc Directive, a parody will in principle constitute a reproduction within the meaning of that directive. In addition, it is submitted that Member States are not free to restrict the scope of the harmonized parody exception by imposing requirements not found in the InfoSoc Directive. Consequently, there is very little margin of discretion left for Member States with regard to the legal treatment of parodies. Nevertheless, most of the “old” criteria can still play a role when determining a fair balance of rights and interests that, according to the CJEU, needs to be maintained when applying the exception. When taking account of the essential characteristics of a parody, as defined by the CJEU, and the fair balance in an overall assessment, the parody exception can act as a flexible exception, allowing a wide array of humorous and critical uses of copyright-protected works.