Opinion of the Advocate General — ECLI:EU:C:2014:458
Date: 2014-05-22
Language of the case: Dutch
Subject matter: Right of establishment;Intellectual, industrial and commercial property;Approximation of laws;Freedom to provide services;Fundamental rights;Copyright and related rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Grand Chamber), 3 September 2014 1. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction, right of communication to the public of works and right of making available to the public other subject-matter — Exceptions and limitations — Use for the purpose of parody — Parody — Autonomous concept of EU law (European Parliament and Council Directive 2001/29 Art. 5(3)(k)) 2. Approximation of laws — Copyright and related rights — Directive 2001/29 — Harmonisation of certain aspects of copyright and related rights in the information society — Right of reproduction, right of communication to the public of works and right of making available to the public other subject-matter — Exceptions and limitations — Use for the purpose of parody — Concept of parody — Application of that exception which must strike a fair balance between the interests and rights at issue — Assessment by the national court (European Parliament and Council Directive 2001/29, Arts 2, 3 and 5(3)(k)) 1. Article 5(3)(k) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the concept of ‘parody’ appearing in that provision is an autonomous concept of EU law. (see para. 17, operative part 1) 2. Article 5(3)(k) of Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society 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. 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. The application, in a particular case, of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, must strike a fair balance between, on the one hand, the interests and rights of persons referred to in Articles 2 and 3 of that directive, and, on the other, the freedom of expression of the user of a protected work who is relying on the exception for parody, within the meaning of Article 5(3)(k). It is for the national court to determine, in the light of all the circumstances of the case in the main proceedings, whether the application of the exception for parody, within the meaning of Article 5(3)(k) of Directive 2001/29, on the assumption that the drawing at issue fulfils the essential requirements of parody, preserves that fair balance. (see paras 33-35, operative part 2)