Germany: the legitimacy of the parody under the EU law

On 28th July, 2016, the Federal Supreme Court ruled that the section 24, subsection 1 of the Copyright Act, relating to the free use of a copyright protected work in order to realize a parody, must be interpreted in accordance with the Art. 5 (3) lit. k of the Directive 2001/29/EC.

In this regard, it is relevant the decision issued by the CJEU on 3td, September, 2014 (C-201/13). The CJEU said that concept of ‘parody’, which appears in a provision of a directive, that does not contain any reference to national laws, must be regarded as an autonomous concept of EU law and interpreted uniformly throughout the European Union.

That interpretation is not invalidated by the optional nature of the exception mentioned in Article 5(3)(k) of Directive 2001/29. An interpretation according to which Member States that have introduced that exception are free to determine the limits in an unharmonised manner, which may vary from one Member State to another, would be incompatible with the objective of that directive (see, to that effect, judgments in Padawan, paragraph 36, and ACI Adam and Others, C‑435/12 , paragraph 49). 

In the opinion of the CJEU, the article 5(3)(k) of Directive 2001/29 must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and secondly, to constitute an expression of humour or mockery. On the contrary, the concept of ‘parody’, within the meaning of that provision, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.

Moreover, the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, requires a fair balance between, on the one hand, the freedom of expression of the user of a protected work who is relying on the exception for parody, and on the other,  the interests and rights of persons referred to in Articles 2 and 3 of that directive.