Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others.

• Jurisdiction: European Union
• Celex Number: 62013CC0201
• ECLI: ECLI:EU:C:2014:458
• Date: 22 May 2014
• Docket Number: C-201/13
• Court: Court of Justice (European Union)
• Procedure Type: Reference for a preliminary ruling

OPINION OF ADVOCATE GENERAL

CRUZ VILLALÓN

delivered on 22 May 2014 ( 1 )

Case C‑201/13

Johan Deckmyn

and

Vrijheidsfonds VZW

v

Helena Vandersteen,

Christiane Vandersteen,

Liliana Vandersteen,

Isabelle Vandersteen,

Rita Dupont,

Amoras II CVOH

and

WPG Uitgevers België

(Request for a preliminary ruling from the Hof van beroep te Brussel, Belgium)

‛Directive 2001/29/EC — Copyright — Article 5(3)(k) of Directive 2001/29/EC — Reproduction right — Exceptions — Parody — Autonomous concept of Union law — Fundamental rights — General principles’

1. By the present request for a preliminary ruling, the Hof van beroep (Court of Appeal), Brussels has submitted to the Court several questions concerning the nature and meaning of the concept of ‘parody’, as one of the exceptions to the exclusive rights of reproduction, distribution and communication to the public of works and the exclusive right to make available to the public protected subject-matter, provided for as an option for the Member States in Article 5(3)(k) of Directive 2001/29/EC ( 2 ) (‘the Directive’). The appearance and composition of the graphic representation giving rise to the main proceedings have led the referring court to include the Charter of Fundamental Rights of the European Union (‘the Charter’) in the Union legislation that it considers relevant. Along the same lines, the Court invited the parties referred to in Article 23 of the Statute of the Court of Justice of the European Union to make submissions at the hearing as to the effect that certain rights under the Charter could have on the interpretation of the exception concerned.

2. The origin of this case lies in a calendar distributed at a public event, the cover of which reproduces that of an instalment of a well-known comic strip to which certain alterations have been made with the aim and result of conveying a message that is part of the ideology of the political party Vlaams Belang.

3. On that basis, and following clarification of the abovementioned concept of ‘parody’, the present case gives the Court — albeit only to the extent required to provide a helpful reply — the opportunity of ruling on a matter of unquestionably broad scope, namely: the treatment to be afforded to the fundamental rights by a civil court when applying, in the main proceedings, a concept that is part of European Union secondary law.

I – Legal framework

A – Union law

4. Recitals 3, 19 and 31 in the preamble to the Directive are worded as follows: ‘(3) The proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental principles of law and especially of property, including intellectual property, and freedom of expression and the public interest. (19) The moral rights of rightholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, of the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. Such moral rights remain outside the scope of this Directive. (31) A fair balance of rights and interests between the different categories of rightholders, as well as between the different categories of rightholders and users of protected subject-matter must be safeguarded. The existing exceptions and limitations to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment. Existing differences in the exceptions and limitations to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights. Such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities. In order to ensure the proper functioning of the internal market, such exceptions and limitations should be defined more harmoniously. The degree of their harmonisation should be based on their impact on the smooth functioning of the internal market.’

5. Article 2 of the Directive provides: ‘Member States shall provide for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works; …’

6. The Directive provides in Articles 3 and 4 for the creation of other exclusive rights, namely the right of communication to the public of works, right of making available to the public other subject-matter and the right of distribution.

7. Article 5 of the Directive lays down exceptions and limitations. For the purposes of the present proceedings, attention should be drawn to the following exception: ‘3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases: … (k) use for the purpose of caricature, parody or pastiche; … 4. Where the Member States may provide for an exception or limitation to the right of reproduction pursuant to paragraphs 2 and 3, they may provide similarly for an exception or limitation to the right of distribution as referred to in Article 4 to the extent justified by the purpose of the authorised act of reproduction. 5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.’

B – National law

8. The Law on copyright and related rights (Wet betreffende het auteursrecht en de naburige rechten) of 30 June 1994 provides in Article 1: ‘1. The author of a literary or artistic work alone shall have the right to reproduce his work or to have it reproduced in any manner or form whatsoever (direct or indirect, provisional or permanent, in full or in part). This right shall also comprise the exclusive right to authorise adaptation or translation of the work ... The author of a literary or artistic work shall alone have the right to communicate it to the public by any process whatever, including by making it available to the public in such a way that members of the public may access it from a place and at a time individually chosen by them. The author of a literary or artistic work alone shall have the right to authorise distribution of the original of the work or of copies thereof to the public, by purchase or otherwise. … 2. The author of a literary or artistic work shall enjoy an inalienable moral right in his work. Overall renunciation of the future exercise of this right shall be null and void. This right shall comprise the right to publicise the work. … He shall enjoy the right to respect for his work that shall permit him to oppose any alteration to that work. Notwithstanding any renunciation, he shall retain the right to oppose any distortion, mutilation or other alteration to his work or any other act prejudicial to the same work that may damage his honour or reputation.’

9. Lastly, Article 22(1) reads as follows: ‘Once a work has been lawfully published, its author may not prohibit … 6. caricature, parody and pastiche, observing fair practice’.

II – The facts and the main proceedings

10. The main proceedings are concerned with two joined appeals in which the applicants at first instance claimed infringement of their copyright in the comic strip Suske en Wiske. ( 3 )

11. The applicants are the heirs of Mr Willebrord Vandersteen, creator of the Suske en Wiske comic strip, and also two companies that acquired rights in that comic strip.

12. The defendants at first instance were Mr Johan Deckmyn, a member of the Vlaams Belang political party, and the Vrijheidsfonds, an association whose object is to support that political party financially and materially and to provide multimedia printing and distribution of publications.

13. At a reception in the city of Ghent to celebrate the New Year of 2011, Mr Johan Deckmyn handed out calendars in which he was named as the publisher responsible and on the cover of which there was, inter alia, a depiction of the then mayor of that city wearing a white tunic with the Belgian tricolour flag tied around his waist. According to the applicants, the cover featured the colour characteristic of the covers of Suske en Wiske and on the lower part of the drawing were the handwritten words: ‘Fré [the cartoonist], freely adapted from Vandersteen’.

14. The image on the cover was the following:

15. The same drawing (‘the cover at issue’) also appeared on the Vlaams Belang website and in that party’s publication De Strop, which is distributed in the Ghent area.

16. On 13 January 2011, an action was brought against Mr Johan Deckmyn and the Vrijheidsfonds before the Rechtbank van Eerste Aanleg (Court of First Instance), Brussels. The applicants alleged infringement of their copyright in the cover of an instalment of Suske en Wiske, drawn in 1991 by Mr Vandersteen and entitled De Wilde Weldoener (something along the lines of ‘the compulsive benefactor’), which is reproduced below

17. According to the applicants, the cover of the calendar handed out is broadly similar to that of the abovementioned instalment of the comic strip, apart from the fact that, on the cover at issue, the benefactor from Suske en Wiske has been transformed into a real political figure while...