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CJEU considers parody exception in Deckmyn case

8 September 2014

Art. 5(3)(k) of the Infosoc Directive (regarding protection of copyright) provides that member states may provide an exception to the exclusive rights of reproduction and communication granted to an author, in cases of “use for the purpose of caricature, parody or pastiche“. The exception was implemented under Belgian law.

However, because the Infosoc Directive requires a ‘fair balance of rights and interests between … rightsholders and users of protected subject-matter’ the CJEU in Deckmyn suggested that the exception may not apply where a new work conveys an undesirable message with which the original author does not wish to be associated. In this case the authors of the original work argued that the new work (which the CJEU described as depicting people “wearing veils and people of colour” collecting coins thrown on the street) conveyed a discriminatory message.

This judgment is problematic not only because parody is by its very nature often controversial, but also since our perception of what is and isn’t undesirable or socially acceptable is prone to frequent change.

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