, Bob &Bobette and VlaamsBelang: analysis of the reasoning of the CJEU

Bob &Bobette and VlaamsBelang: analysis of the reasoning of the CJEU

I told you the day before yesterday: the Court of Justice of the European Union delivered its judgment in the Bob and Bobette case (C – 201/13).

The judgment is interesting in more than one way.

1. As to the definition of “parody”

The Court of Justice indicates first of all that in the absence of any definition in Directive 2001/29 of the concept of “parody”, it is necessary to refer to the usual meaning of this term (paragraph 19 of the judgment) .

Now, says the Court of Justice, in the usual sense, “parody” has the following characteristics (point 20):

  • it evokes an existing work;
  • while presenting differences (which the Court qualifies as “perceptible”) with this existing work;
  • it constitutes a manifestation of humor or a mockery.

This definition delivered by the Court of Justice takes up the structural characteristic  and the functional characteristic  of the parody that Advocate General Cruz Villalon had put forward.

This being the case, the Court of Justice stands out clearly from its Advocate General when it specifies that originality is not a condition of parody (paragraphs 21-23):

 This interpretation is not called into question by the context of Article 5 (3) (k) of Directive 2001/29, which sets out an exception to the rights provided for in Articles 2 and 3 of that directive and which must , therefore, be the subject of a strict interpretation (see, to that effect, ACI Adam and Others, EU: C: 2014: 254, paragraph 23).

 Indeed, the interpretation of the concept of parody must, in any event, make it possible to safeguard the useful effect of the exception thus established and to respect its purpose (see, to this effect, the Football Association Premier League and Others judgment , C – 403/08 and C – 429/08, EU: C: 2011: 631, point 163) ”.

In other words: it is enough that the parody presents perceptible differences compared to the parodied work. On the other hand, it is not necessary that the elements of distinction be as such original, any more than it is necessary that the parody be as such an original work.

The rejection by the Court of Justice of the condition of originality seems intended to allow a broader interpretation of the notion of parody.

Another interesting point: the Court of Justice does not differentiate between what the Advocate General had called “the parodies of the previous work” (the parody mocks the earlier work) and “the parodies by means of the work. previous ”(the parody aims to mock a third subject or object). Both types of parody fall under the parody exception under Article 5 , paragraph 3, k) of Directive 2001/29. This clarification is very interesting because until now, in Belgian law, the parody exception seemed limited to parodies of the earlier work, to the exclusion of parodies by means of the earlier work (see eg A Strowel , “Copyright and neighboring rights”, in trademark public domain , 2nd ed., Bruxelles, Larcier, 2013, p. 351; and A. Berenboom,The new copyright – and neighboring rights -, 4th ed., Brussels, Larcier, 2008, p. 177).

2. As to the necessary balance of rights and interests

The other interesting aspect of this decision (although it is certainly more political and less legal) is that of the application of the parody exception.

Can we invoke parody in all circumstances if its structural and functional characteristics are present?

As we can imagine, the answer is no.

The Court of Justice indicates, in this regard, that the exceptions to copyright provided for by Directive 2001 are intended to maintain a “fair balance” between (i) the rights and interests of authors and (ii) the rights and interests of users of copyrighted works (item 26). And in particular, the parody exception guarantees the freedom of expression or opinion of users of protected works (point 25).

But says the Court, it is necessary to verify  inconcreto whether the fair balance between the rights and interests of each (that is to say of the parodist and the parodied) is assured (point 28).

In other words:

  • the parody exception is intended to guarantee the freedom of expression of the author of the parody;
  • but this exception is not absolute: if the parodist exaggerates and unduly or unnecessarily infringes the rights and interests of the parodied, the parody exception may not apply.

And this is where we see the political dimension of this judgment emerging: after recalling that it is for the national judge to assess whether this fair balance between the rights and interests of the parodist and the parodied is respected, the Court of justice dictates in a thinly veiled manner to the Brussels Court of Appeal the solution it must arrive at (paragraphs 29-31):

“Thus, as regards the dispute before the referring court, it should be noted that, according to Vandersteen and Others, since, in the drawing at issue in the main proceedings, the characters who, in the original work, picked up the discarded coins have been replaced by veiled and colored people, this design conveys a discriminatory message having the effect of associating the protected work with such a message.

If that is indeed the case, which is for the referring court to assess, the importance of the principle of non-discrimination based on race, color and ethnic origins, as well as this principle was concretized by Council Directive 2000/43 / EC of 29 June 2000 on the implementation of the principle of equal treatment between persons without distinction of race or ethnic origin (OJ L 180, p. 22), and confirmed, in particular, in Article 21, paragraph 1, of the Charter of Fundamental Rights of the European Union.

 In these circumstances, however, holders of rights provided for in Articles 2 and 3 of Directive 2001/29, such as Vandersteen and others, have, in principle, a legitimate interest in the protected work not being associated with such message”.

In plain language: if it was proven that the drawing produced by the VlaamsBelang (i) conveys a message of discrimination based on race and (ii) has the effect of associating the work Bob etBobette with this message, the Brussels Court of Appeal must reject the application of the parody exception.

3. Conclusion

A parody (i) evokes an existing work (ii) while presenting perceptible differences with this existing work and this (iii) for a humorous or mocking purpose (it does not matter whether the parody concerns the parodied work or an object or subject third).

A parody does not have to be original. It suffices that it be distinguished in a “perceptible” way from the existing work.

The parody exception can only be applied if it ensures a “fair balance” between the rights of the parodist and the parodied.

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