Dr Sabine Jacques (University of Liverpool)
In just a few days, a new parody exception in Danish copyright law will come into effect (Section 24 b). This change follows significant developments in the Little Mermaid case, which reached the Danish Supreme Court in 2023. The case highlighted the issues linked to the absence of a statutory parody exception in Danish copyright law, sparking debates about whether copying copyrighted works for humorous purposes was permissible. This was despite Section 4(2) of the Nordic Act on ‘free use,’ which allows the use of copyrighted works if it results in a new, independent, and original work.
In this case, a Danish newspaper created unauthorised satirical images of the iconic Little Mermaid statue, a symbol of Denmark’s cultural identity. The first image, showing the statue as a zombie on the front cover, commented on the ongoing immigration debate. The second image depicted the Little Mermaid wearing a face mask, linking the fear of the coronavirus with potential political affiliations (see below).
Although lower courts initially rejected the parody exception, the Danish Supreme Court’s controversial May 2023 decision overturned these rulings. The Court recognised these uses as legitimate parodies under EU law, despite preparatory works for the Danish Copyright Act implementing the InfoSoc Directive stating that “[a]n exception of this kind does not exist in the current law, and it is not proposed to make use of the authorization” (Appendix 3 to Bill L 19 (FT 2002-2003)).
In response, Denmark is now introducing a specific parody exception. This new exception aligns partially with EU standards but also includes unique features. EU copyright law protects parody under Art. 5(3)(k) and (4) of the InfoSoc Directive and Art. 17(7)(b) of the DSM Directive. The latter requires Member States to allow users of social media to upload user-generated content containing caricature, parody, or pastiche. This provision has been explicitly implemented in Denmark and can be found in Section 52c(10) of the Danish Copyright Act (introduced by Act No. 1121 of 4 June 2021). Therefore, for uses covered by the DSM Directive, Danish law now includes an explicit exemption for parody.
Notably, the new Danish parody exception does not include a framework to help courts distinguish legitimate uses from infringement. Unlike other jurisdictions that adhere to ‘the rules of the genres’ (France), ‘fair dealing’ (UK), or ‘fair practices’ (Belgium), Danish courts have greater flexibility. They can weigh the interests at stake while respecting the requirements of humorous character, absence of confusion, and proportionality as set out in the CJEU’s Deckmyn decision (C-201/13).
While the new exception does not address contractual override, it is unique in explicitly stating its inapplicability to computer programs and databases. This could impact how effective the exception is in practice, particularly in cases involving Generative AI systems. Such systems might find it harder to justify copyright infringement under this defence. This contrasts with developments in Germany, where the Berlin Regional Court ruled that the reproduction of digital works using collage-like techniques in a new painting falls within the scope of pastiche (Kammergericht, 30.10.2019 – 24 U 66/19, regarding the use of David Conway’s ‘Scorched Earth’ by Martin Eder in ‘The Unknowable’).
As this new parody exception comes into force, it will be crucial to monitor its application and effectiveness, particularly in light of these unique provisions and the broader EU context.