15.01.2020
The end of “free use” according to Section 5 Paragraph 2 of the Copyright Act and the reintroduction of free use of works for parody and satire?
I. The ECJ decision
In a decision issued in the summer of 2019 (ECJ 29.07.2019, C-476/17), the ECJ had to assess the admissibility of musical sampling. The starting point for the decision was a long-running legal dispute over the use of a roughly 2-second sequence from the song “Metal on metal“ of the music group “Power plant“.
A obiter dictum this decision in relation to the so-called “free use” in (German) copyright law could now have far-reaching consequences for the copyright provisions of the Member States, including the Austrian Copyright Act and the previous case law of the Supreme Court on the “free use“ in Section 5 Paragraph 2 of the Copyright Act.
The question in the main proceedings was whether the (German) right to free use under Section 24(1) of the Copyright Act could be invoked when using small excerpts from recordings on a sound carrier for one's own work by way of sampling.
Section 24 paragraph 1 d UrhG reads: “An independent work created through free use of the work of another may be published and exploited without the consent of the author of the work used“ and thus corresponds in content essentially to the Austrian provision of Section 5 Paragraph 2 of the Copyright Act. Such exceptions and restrictions, or free uses of works, are understood to be regulations that provide for exceptions to the copyright and ancillary copyright exploitation rights in order to achieve a balance between the interests of the rights holders (usually the authors) and those of the users of their works and services. Examples of this are the provision of Section 42 f of the Copyright Act, which provides for the admissibility of quotations from copyrighted works, or Section 42 e of the Copyright Act, which provides for free use of works for the accidental or incidental use of works, for example when short sections of radio music can be heard in the background of an interview recording in a pedestrian zone.
The ECJ interpreted the question put to it as a question of whether a Member State may provide in its national law for an exception or limitation to the right of the phonogram producer which is not provided for in Directive 2001/29/EC; it answered this question decisively in the negative (paras 58 – 65). It ordered “without much ado“[1] the definition of free use is assigned to the area of free uses of works. He stated that the mechanisms that make it possible to find an appropriate balance between different rights and interests (in particular between the right to intellectual property and the right to freedom of expression or freedom of art) when using copyrighted material are conclusively anchored in Directive 2001/29/EC (other provisions of Union law were not relevant) and that, in addition to the exceptions and restrictions provided for in Directive 2001/29/EC, there was no scope for Member States to provide for other free uses of works.
II. The “Free use” in Austrian copyright law
According to previous German and Austrian doctrine, the definition of “free use” should not necessarily have been interpreted as a free use of the work (but could instead have been interpreted as a mere clarification of the limit of the scope of protection of copyright)[2] – of course, the provision of Section 5 Paragraph 2 of the Copyright Act has so far been treated by Austrian case law as a free use of the work. The provision was viewed by case law as an additional scope, which the ECJ now clearly regards as inadmissible, in order to justify the admissibility of certain acts of use in the absence of a specific exception or restriction of the copyright exploitation rights. For example, in the “Lieblingshauptfrau” decision[3] The provision of Section 5 Paragraph 2 of the Copyright Act was used to determine whether the parody of an election poster was permissible under copyright law.
Now, although Union law provides for an (optional) exception to copyright exploitation rights for the purposes of “Caricatures, parodies or pastiches“ (Article 5 paragraph 3 letter k of Directive 2001/29/EC), but this has not yet been implemented by the Austrian legislator in Austrian copyright law.
In the absence of such a free use of the work, the Supreme Court in the above-mentioned decision resorted to the “free use” in Section 5 of the Copyright Act to conclude that the “The infringements of copyright and related rights alleged against the defendant are doubly justified [are], namely, on the one hand, as a parodistic free adaptation of an election campaign advertisement by the plaintiffs, on the other hand, through the right to freedom of expression“. German case law also took a similar approach and interpreted the provision of Section 24 Paragraph 1 of the Copyright Act “compliant with guidelines“ so that the parody could also be subsumed under it.[4]
The fact that a certain “workaround” had been implemented here also seemed to be apparent to the Supreme Court, which stated that, “because the parody is not included in the catalogue of free use of works [this] can only be legally permissible if it is a new creation according to Section 5 Paragraph 2 of the Copyright Act“ (citing a doctrine of Noll[5]). The legal uncertainty created for artists who choose the medium of parody to express their creativity by the fact that they can only rely on a free use of the work created by case law (instead of on an explicit legal regulation of free use of the work).[6]
According to the decision of the ECJ C-476/17, a balancing of conflicting fundamental rights (the right to intellectual property on the one hand, the right to freedom of expression on the other) is now not permissible outside of expressly stipulated exceptions and limitations (because they are not provided for in the directive) – the regulation of the “free use“ can no longer serve as a catch-all provision for free uses of works not expressly provided for without thereby contradicting the clear case law of the ECJ in this regard.
The above-cited case law of the Supreme Court on parody should also be viewed critically insofar as its definition of “parody” differs from that of the ECJ when assessing the admissibility of a parody within the meaning of Article 5 paragraph 3 letter k of Directive 2001/29/EC,[7] which creates legal uncertainty: According to the ECJ, a parody is characterized by the fact that it is reminiscent of an existing work, but at the same time has noticeable differences from it and is ultimately an expression of humor or mockery. According to the OGH, on the other hand, a parody exists when the new (parodying) work, despite being closely based on the content and form of the parodied work, is nevertheless a sufficiently individually creative and independent intellectual and artistic achievement, whereby the features of the work used must clearly take a back seat to the new, "parodistic" features.[8]
III. Implementation of the Directive on Copyright in the Digital Single Market
The much-discussed Directive on copyright in the digital single market (Directive 2019/790), which must be implemented by the Member States by June 2021, contains in Article 17 paragraph 7 the requirement that users must rely on exceptions or restrictions for “Quotes, criticism and reviews" as well as "Caricatures, parodies or pastiches“ may support.
This results in an obligation to implement free use of works for parodies, caricatures, etc.[9] It is to be hoped that the legislature will opt for a comprehensive solution and adopt the regulation of Directive 2001/29/EC as a general free use of works for parodies, caricatures and pastiches (and not just create a provision limited to "user-generated content" on certain platforms). It will probably not be possible to see the provision of Section 5 Paragraph 2 of the Copyright Act as an - anticipated - implementation of the requirements of Article 17 Paragraph 7 of Directive 2019/790 and to forego a provision in the Copyright Act.[10] In any case, the legislature is required to provide clarification. This is primarily in the interests of legal certainty for artists who, when creating parodies or caricatures in Austria, can only rely on a few supreme court decisions and not on the wording of the law.
[1] Leistner, “All’s well that ends well” … or “Curtains closed and all questions open”?, GRUR 2019, 1008 (1013).
[2] Leistner, GRUR 2019, 1008 (1013) mwN.
[3] OGH 13.07.2010, 4 Ob 66/10z.
[4] BGH 28.07.2016, I ZR 9/15.
[5] Noll, Parody and Variation, MR 2006, 196.
[6] So also Schumacher in Kucsko/Handig (ed.), urheber.recht² (2017) § 5 Rz 50.
[7] See, for example, ECJ 03.09.2014, C-201/13.
[8] OGH 13.07.2010, 4 Ob 66/10z.
[9] See Günther, The Directive on copyright in the digital single market – with particular attention to the rules concerning the use of protected content by service providers for sharing online content (“upload filters”), in Staudegger/Thiele (eds) Jahrbuch Geistiges Eigentum 2019, 277; Thumb, Responsibility of online portals according to Art 17 DSM-RL – Part II, Media and Law 2019, 283.
[10] Thumb, Media and Law 2019, 283.