Copyright Act, Arts. 29(1), 38g, 74, 82; Charter of Fundamental Rights and Basic Freedoms, Arts. 11, 17, 34; Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 10; Charter of Fundamental Rights of the European Union, Arts. 11, 17(2); Directive 2001/29/EC, Arts. 5(2), 5(3)(k), 5(5); Directive (EU) 2019/790, Art. 17(7)
The defendant, an environmental organisation, modified the original audiovisual advertising spot of the plaintiff, a leading producer and supplier of electricity, by inserting several shocking shots which ironized the original expression of the advertisement portraying the plaintiff as an environmentally friendly producer. The defendant communicated the modified audiovisual spot to the public on its social network account.
The plaintiff claimed to be the exclusive licensee of the copyright in the advertising spot and the owner of the related right of the producer of the first fixation of the film (producer of the audiovisual recording of the spot). It sought an injunction restraining the defendant from further communication of the modified spot to the public and an imposition of publishing the apology to the plaintiff. In its defence, the defendant argued that it had acted in accordance with the limitation of copyright and related rights for parody and caricature under the Copyright Act.
Following the findings of the judgment of the Court of Justice of 3 September 2014, Johan Deckmyn and Vrijheidsfonds VZW v Helena Vandersteen and Others, C-201/13, the Supreme Court held that the statutory limitation of copyright for the purpose of parody according to the Copyright Act includes also the modification of the audiovisual work by inserting new shots and the subsequent use of this audiovisual work in such a modified form.
It must be assessed individually on the specific circumstances of each case, whether such a parody strikes a fair balance between the interests of the author and the freedom of expression of the user of the protected work, as well as, whether the parody does not conflict with the normal way of using the parodied work and does not unreasonably affect the legitimate interests of the author. Existence of the direct or indirect economic benefit derived from the use of the parodied work does not, as such, preclude the free use of the work according to this statutory limitation of the copyright.
Although the Copyright Act, as in the version in force from 20 April 2017 to 4 January 2023, did not explicitly provide for the limitation of related rights for the purpose of parody and caricature, the relevant provision of the Copyright Act on such a limitation of copyright (Article 38g) must be applied mutatis mutandis to the related rights even under this version of the Copyright Act.
The Supreme Court found in this case that the preconditions for the free use of the plaintiff's work and recording under the statutory limitation were established and, thus, affirmed the dismissal of the action.