Lagförslag | Sverige | 2019-06-20
When you play a game of thrones you win or you die.
The End of Memes? Legislation Implementation Possibilities of Article 17 DSM Directive
When you play a game of thrones you win or you die.1
The Spring 2019 has been long awaited by the Game of Thrones fandom. With the new batch of episodes came the endless possibility of sparking the fans creative impulses in fusing the onscreen images of favourite scenes and characters and infusing them with witty comments and remarks. Some of them pictured more dark humour fusion of flying dragon and a real-life burning image of cultural heritage sites such as the church of Notre Damme in Paris, and some were light hearted commenting the endless pursuit of unrequited love interests. At the same time when the fandom was exiting the Earth time zone and entering the Westeros time zone, the EU completed the legislative process of adopting the new DSM Directive2 that on the face of it allowed the reckless mischief of the fandom. Article 17 (7) paragraph 2 (b) of the DSM Directive states that Member States shall ensure that users in each Member State of the EU are able to rely on the existing exceptions or limitations when uploading and making available user generated content for the use in purpose of caricature, parody or pastiche. And although the battle of the memes has been won on the EU level, the question remains whether the memes win or die in the great war of national implementation of the DSM Directive?
Catch 22 of the DSM Directive and the Parody Exception
The text of Article 17 (7) paragraph 2 (b) of the DSM Directive focuses on already existing parody exception in the national legislation and does not provide for any novelty approach in this regard. In light of that one needs to asses two issues. The first one is how is parody exception regulated on the EU level and the second one is how is parody exception regulated on the national level. This is done in order to gain a vague idea of the actual impact of the new provision.
Parody Exception on the EU Level
The parody exception has been introduced in the EU secondary legislation in the InfoSoc Directive 3 that provides for one mandatory exception and limitation, and a closed list of optional ones. The parody exception, as an optional exception, was not included in the first proposal of the InfoSoc Directive, however it found its way in the final version in Article 5(3)(k). This was due to the fact that the European Parliament recognised its importance for the vitality of the democratic debate and the need to strike a balance between the interest and rights of the creators and original characters and the right to freedom of expression of the user of a protected work who is relying on the parody exception.4
That same vitality of the democratic debate was the casus belli that sparked a preliminary ruling procedure in the Deckmyn case,5 a case on the assessment of application of the parody exception on a work of a political figure, that provided the contours of defining the exception on the EU level. In that case, the CJEU implicitly recognised the fact that not all Member States are privy to the parody exception, but those ones that are, should have a uniform application of it, since it forms and autonomous legal concept.6 Since the InfoSoc Directive does not give a definition on the concept of parody, this concept should be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part.7
The CJEU in assessing the above, provided guidelines for the national courts by stating that the essential characteristics of parody, are (a) to evoke an existing work, while being noticeably different from it, and (b) to constitute an expression of humour or mockery. This concept is not subject to the originality criteria, other than that of displaying noticeable differences with respect to the original parodied work, the creator of the parody should be a person other than the author of the original work, and the parody should relate to the original work or mention the source of the parodied work.8Additionally, the application of it, must strike a fair balance between, the right holders and, the freedom of expression of the user of a protected work who is relying on the exception for parody.9
However, in the application of optional exceptions, as confirmed in the Cordoba case, it is still the Member States that are masters of their domain, and they are free to define the scope of exceptions in the confinement of the criteria stipulated by the InfoSoc Directive’s provision.10
Kaleidoscope of National Implementation
The reflection on the modes of national implementation has been done on the basis of the 2013 EU Commission study on the implementation of the InfoSoc Directive.11 It is fair to point out the fact that there is a new pending study on the same issue that reflects the changes in national legislation that were made in order to adapt to the rapid changes in copyright landscape made by the CJEU case law. For example, the 2013 study does not encompass all current Member States of the EU, but only 27 of them, and some Member States of the EU had in the meantime amended their national legislation to incorporate the parody exception, such as the UK12 and Slovenia.13 However, the study does provide a glimpse in the varying degree of recognition of the parody exception in the EU.
The study demonstrates14 that Member States can be roughly grouped into six categories when it comes to parody exception. Firstly, there are Member States that do not have the parody exception in their national legislation (Austria, Bulgaria, Cyprus, Czechia, Greece, Latvia, Poland, Romania, Slovakia), secondly, there are Member States that have an explicit parody exception (Belgium, Croatia,15 Estonia, France, Lithuania, Luxembourg, Malta, Netherlands, Slovenia,16 Spain, UK17), thirdly there are Member States that cover it under the umbrella of transformative use and adaptation rights (Denmark, Finland, Sweden), fourthly, there are Member States that have it covered under the ‘free use’ defence (Germany, Hungary (an altered version of it), Portugal), fifthly, there are Member States that have it covered under constitutional safeguards of freedom of expression (Italy), and lastly, there are Member States that have it covered under fair dealing (Ireland).
This kaleidoscope of national choice in introduction of an optional provision of the InfoSoc Directive does not provide for a firm ground of uniform application of the new add-on on the ‘meme protection’ in the DSM Directive.
Much Ado About Nothing?
In the realm of Game of Thrones fandom, the battles are of a definitive nature, you either win or you lose, and usually losing is the most probable outcome. The new Article 17 (7) paragraph 2 (b) of the DSM Directive seems to be in line with that sentiment. The essence of this provision just reaffirms the status quo and does not provide for any new added value. It points to the fact that the battle has been lost, and that we have been served with a piece of legislation that in the area of online parody, leaves us in the same limbo of legal (un)certainty.
 George R.R. Martin A Game of Thrones (Bantam 1996) p 395.
2Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Text with EEA relevance.) OJ L 130, 17.5.2019, p. 92–125 (the ´DSM Directive´).
3 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (the ‘InfoSoc Directive’).
4 European Parliament, ‘Harmonisation of certain aspects of copyright and related rights: European Parliament resolution of 9 July 2015 on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (2014/2256(INI)) P8_TA(2015)0273, para 47.
5 Case C-201/13, Johan Deckmyn, Vrijheidsfonds VZW v Helena Vandersteen and Others, ECLI:EU:C:2014:2132.
6 Ibid  paras 14-16.
7 Ibid  para 19.
8 Ibid  para 33.
9 Ibid  para 34.
10 Case C-161/17, Land Nordrhein-Westfalen v Dirk Renckhoff ECLI:EU:C:2018:634 para 43.
11 European Commission’s Study on the application of Directive 2001/29/EC on copyright and related rights in the information society (the "InfoSoc Directive") available at https://publications.europa.eu/en/publication-detail/-/publication/9ebb5084-ea89-4b3e-bda2-33816f11425b.
12 Lionel Bently and Brad Sherman, Intellectual Propery Law (4th edn, Oxford University Press 2014) p 241.
13 Slovenia introduced parody exception in Article 53 (2) of the Slovenian Copyright Act available in Slovenian at http://www.pisrs.si/Pis.web/pregledPredpisa?id=ZAKO403.
14 Ibid  p 476- 481.
15 Croatia was not covered by the study since it acceded to the EU on 1 July 2013. The parody exception is regulated by Article 94 of the Croatian Copyright Act available in Croatian at https://www.zakon.hr/z/106/Zakon-o-autorskom-pravu-i-srodnim-pravima.
16 Ibid .
17 Ibid .