Artistic Expression, Content Regulation / Censorship, Licensing / Media Regulation
Bakri v. Israel Film Council
Closed Expands Expression
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The European Court of Justice defined the parody exception to copyrights laws within Article 5(3)(k) of EU Directive 2001/29 as one that evokes an existing work while being noticeably different from it along with an expression of humour or mockery. The Court held that the determination of whether a use of parody amounts to an exception requires striking a fair balance between the rights of the person who created the original work and the freedom of expression of the individual who is relying on the exception of parody.
In 2011, the Defendant, a member of Vlaams Belang political party in Belgium, produced and distributed calendars with a drawing that resembled the cover page of a copy-righted comic book written by the Plaintiff.
The Plaintiff subsequently brought a copyright infringement action in the Court of First Instance in Brussels against the Defendant. The court ordered the Defendant to cease all use of the drawing.
The Defendant later appealed the decision, arguing that the drawing did not infringe the Plaintiff’s copyright because it was a political cartoon within the use of parody exception under Article 22(1)(6) of the Belgium’s Copyrights Law, which states that “[o]nce a work has been lawfully published, its author may not prohibit . . . caricature, parody and pastiche, observing fair practice.”
The Plaintiff countered that the drawing was not a parody because it lacked the essential elements of a parody work, such as originality, display of humorous traits, the objective of ridiculing the original work.
The Court of Appeals of Brussels stayed the proceedings and referred the case to the European Court of Justice to address the concept of parody and its essential elements under the European Union law
The Court first determined that the concept of parody under Article 5(3)(k) of Directive 2001/29 is “an autonomous concept of EU law and interpreted uniformly throughout the European Union.” [para. 15]
The Court then analyzed the exception of parody. It defined the essential characteristics of a parody work as “first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery.” [para. 20] It also ruled that contrary to the Plaintiff’s position, the exception of parody does not require the establishment of certain conditions, such as originality and display of a character different from the original work.
According to the Court, the determination of whether a use of parody falls within an exception to EU copyrights law requires striking a fair balance between the interests and rights of the person who created the original work and the freedom of expression of the individual who is relying on the exception of parody. [para. 27]
The Plaintiff argued that the drawing produced by the Defendant conveyed a discriminatory message, capable of associating the original drawing to that message. The Court held that if the domestic court finds the drawing as discriminatory in nature, the Plaintiff would have “a legitimate interest in ensuring that the work protected by copyright is not associated with such a message.”
Accordingly, the Court remanded the case for further proceedings as to whether the Defendant’s drawing conveyed a discriminatory message.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In determining whether a parody work amounts to a copyright exception, the European Court of Justice demanded striking a fair balance between the rights and interests of the copyright owner and the freedom of the expression of the person who is relying on the parody exception.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Court held that “the interpretation of the concept of parody must, in any event, enable the effectiveness of the exception thereby established to be safeguarded and its purpose to be observed.”
The exception of caricature, parody or pastiche.
Case significance refers to how influential the case is and how its significance changes over time.
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