Copyright’s scope of protection under the looking glass: the pending references in Mio/Konektra and Pelham II

This short contribution discusses the AG Opinions in the pending references in Mio/Konektra and Pelham II, which both – in their own way – reckon with the recognisability requirement introduced in Pelham I in relation to the reproduction right of phonogram producers, and which more generally both address the scope of protection afforded by EU copyright law.

On the one hand, the paper takes a critical stance towards the restrictive interpretation proposed by AG Emiliou in Pelham II regarding the concept of pastiche, in spite of the negative consequences for artistic freedom that he himself acknowledges. It casts doubt on the AG’s assertion that a more permissive understanding would be contra legem and therefore could not be adopted, even if it were in the interest of safeguarding the enjoyment of fundamental rights.

On the other hand, the paper supports the introduction of a recognisability criterion in the infringement test for authorial works, as suggested by AG Szpunar in Mio. It argues that such a criterion could serve as a starting point for recognising that the reproduction right is inherently limited, thereby permitting the incorporation of existing works into new creations without authorisation where the original features of the new work are so strong that any borrowed features from the earlier work “disappear” – that is, are no longer recognisable.

1 Introduction

Earlier this year, Advocates General Szpunar and Emiliou delivered their respective Opinions in two potentially landmark cases of EU copyright law. In Mio/Konektra, the European Court of Justice (ECJ) is asked both about the determination of the originality of works of applied art and about the assessment of infringement in such works. In Pelham II, the ECJ is asked how the concept of pastiche must be construed.

Although they concern different issues, these cases are linked in at least two ways. First, they both address the scope of protection granted to works. Significantly, Mio raises the question of the connection between the degree of originality and the scope of protection, particularly in the context of determining whether the original features of a work have been reproduced. Pelham, by contrast, concerns the question of when the use of such original features can nevertheless be permitted as a lawful pastiche. Second, both cases – albeit in different ways – touch on an unfortunate aspect of Pelham I, where the ECJ held that even the taking of a very short sample from a sound recording for use in a new creation constitutes a reproduction unless it is unrecognisable to the ear, making recognisability a core feature of the infringement test for sound recordings.

Whereas Pelham II illustrates the restrictive implications of incorporating a recognisability criterion – based on the notion that even the copying of the smallest part of a sound recording is, in principle, a reproduction – for certain follow-on creations, Mio raises the question of whether the element of recognisability is also present in the infringement test for authorial works.

This contribution briefly considers both Opinions, in particular from the point of view of their potential effect on the scope of protection enjoyed by works.

2 Pelham II

The Pelham saga – known in Germany, the country from which the reference originates, as Metall auf Metall (“metal on metal”) – concerns the use of a two-second sample of a metallic beat from the eponymous 1977 sound recording by Kraftwerk, used by the German musician Moses Pelham in his musical work Nur mir. In its first Pelham ruling, the ECJ held, insofar as relevant here, that:

• Even the copying of a very short sample from a sound recording constitutes a reproduction in part, unless that sample is used in a new work “in a modified form unrecognisable to the ear” (paras 29–31);
• Member States may not maintain in their copyright law any limitation or exception to the exclusive rights guaranteed by the InfoSoc Directive other than those provided for in Article 5 of that Directive – rejecting, at least in the context of sound recordings, the application of the German doctrine of free use (about which more below) (paras 56–65);
• For the quotation exception to apply, it must be possible to identify the quoted work in the quoting work, and the quoting work must have the intention of entering into a dialogue with the quoted work (paras 72–74).

After another round before the German courts, the case is now back before the ECJ, which is asked to determine the meaning of the concept of pastiche within the context of the InfoSoc Directive. That is, having concluded that, insofar as the case falls within the temporal scope of the Directive, the use of the sample constitutes a reproduction that cannot rely on the quotation exception, it remains to be determined whether it constitutes a lawful pastiche.

2.1 The concept of ‘pastiche’ according to AG Emiliou

The proceedings largely focus on the question of whether a pastiche within the meaning of the InfoSoc Directive requires an imitation of style, or whether it covers any artistic reuse that involves a certain “confrontation” with the source material – for instance, through substantial changes to the style of the original, its use in a new context, or by giving it a new meaning or message (cf. Opinion, para 46).

The AG concludes that the everyday meaning of the term pastiche is ambiguous, noting that it is used to refer to artistic uses both with and without the intent to imitate the style of another work. Given that a textual interpretation is therefore not dispositive, the AG considers in detail both the context of the provision permitting an exception or limitation for the purpose of pastiche and its purpose.

Regarding the context of that provision, he points first to its grouping with the concepts of parody and caricature – Article 5(3)(k) permits limitations and exceptions for the “use for the purpose of caricature, parody or pastiche.” A common characteristic of those concepts is that they are “a form of derivative expression based on imitation of a source” (para 60; emphasis in original). The AG considers that this supports the conclusion that pastiche presupposes stylistic imitation. The fact that copyright in principle does not protect style as such does not weigh against that conclusion: a pastiche exception that requires overt stylistic imitation would also cover imitations that reproduce certain original elements. An interpretation requiring stylistic imitation would therefore, in his opinion, not render a pastiche exception redundant (paras 63–65).

By contrast, he considers that a broader construction of the concept of pastiche, understood as covering artistic reuse more generally, would risk rendering both the parody and caricature exceptions redundant. Moreover, such a construction would maximise the scope of that concept and exempt an “ill-defined, potentially unlimited range of creative reuses of protected material,” akin to US fair use (paras 68–71; emphasis in original).

According to the AG, the purpose of the provision confirms the narrower understanding of pastiche as requiring stylistic imitation. He considers that the legislature intended to provide a basis for an exemption for “certain ‘derivative’ expressions protected under Article 11 and/or Article 13 of the [EU Charter of Fundamental Rights],” not “potentially all of those ‘derivative’ expressions” (paras 73–74; emphasis in original). He suggests that this understanding is confirmed by the drafting history of the DSM Directive, where the EU legislature introduced certain new (mandatory) limitations and exceptions, noting that it considered – but ultimately rejected – the idea of a more general exception for creative reuses.

Importantly, the AG rejects as contra legem an interpretation of the concept of pastiche in light of the Charter that would give it a broader meaning so as to create more breathing space for artistic freedom. He adds that the broader interpretation exempting artistic reuse more generally – supported by both the German Government and the European Commission – would distort the meaning of the provision by extending it to uses it was never designed to cover (paras 76–79).

2.2 Interim evaluation

The AG’s contra legem argument is not entirely persuasive.

At the time of the adoption of the InfoSoc Directive, the EU legislature probably did not extensively consider the potential meaning or scope of the concept of pastiche. In his dissertation, Giuseppe Mazziotti essentially described the drafting process of the limitations and exceptions in the InfoSoc Directive as a “free-for-all”: “The only viable solution in order to quickly achieve such an ‘ambitious’ result [i.e. one that produced an exhaustive list of limitations and exceptions that was compatible with the different legal traditions of the Member States] was to satisfy the Member States by including all of the exceptions that they had requested in the list.” Moreover, it is not unlikely that at least the Member States, as represented in the Council, considered the issue of the meaning and scope of the notion of pastiche to be for the Member States to determine – just as they considered the InfoSoc Directive not to affect national notions of originality or what constituted a “public” for the purpose of communication to the public. After all, at that point the ECJ had not yet introduced the autonomous concept doctrine into EU copyright law (on its introduction see, e.g., Vousden 2010).

Similarly, the AG arguably overstates the risk that extending the scope of pastiche to all uses aimed at artistic confrontation would render the parody and caricature exceptions redundant. As for caricature, we simply do not yet know its meaning until it has been interpreted by the ECJ. As for parody, one can easily imagine parodies – i.e. humorous or mocking reworkings of copyrighted works – that eschew the label of artistic confrontation. This may be true, in particular, of parodies that do not target the work they use but something else (sometimes also called “weapon” parodies, as opposed to “target” parodies).

The fact that pastiche would have a relatively broad scope of application does not necessarily make it “ill-defined,” as the AG suggests. The comparison with fair use, in particular, is somewhat odd, given that fair use is capable of covering a far greater variety of uses than a pastiche exemption that merely permits certain artistic reuses. Of course, a pastiche exception should not exempt all creative reworkings aimed at artistic confrontation; its scope would need to be mediated in some way. But the same is true, for example, of the quotation exception, which requires that the use be in accordance with fair practice, and the parody exception, which does not exempt all humorous or mocking reworkings but only those in which the application of the exception would “strike a fair balance,” as the ECJ required in Deckmyn. The fact that the scope of the pastiche exception would similarly need to be tailored to the specific circumstances of each case should therefore not weigh against it.

Finally, the fact that an interpretation permitting, in principle, uses that engender artistic confrontation gives the provision a broader scope than the alternative interpretation that would restrict it to stylistic imitation should not weigh against it. The AG refers in this regard to the principle of strict interpretation. However, this should not be understood to mean that a choice between alternative meanings must necessarily be resolved in favour of the less permissive one. Specifically, the idea of strict interpretation should not be stretched to mean restrictive interpretation when choosing between broader and narrower readings of ambiguous terms. The fact that a broader interpretation enables more uses does not automatically make it an extensive interpretation, against which the notion of strict interpretation might militate – particularly if that meaning can be defended on textual, systemic and teleological grounds. And contrary to what the AG concludes, I think that it can.

As concerns the context, there are therefore strong arguments for the position that a broader interpretation of the concept of pastiche is wholly compatible with that context. At the very least, it seems questionable that a broader interpretation intended to safeguard the enjoyment of certain fundamental rights would “distort” that meaning when understood in light of its context.

The same is true from a teleological and legislative historical point of view. On its face, the argument based on the drafting history of the DSM Directive is more persuasive – even if one may similarly doubt whether the legislature gave specific consideration to the meaning of the concept of pastiche. However, even if one accepts that the legislative history of the DSM Directive weighs against the broader understanding of the concept of pastiche, one can again question whether that broader understanding would really amount to an interpretation contra legem.

At the same time, the AG does not consider the purpose underlying the InfoSoc Directive more generally, in particular as it concerns the system of limitations and exceptions – that is, to ensure “a fair balance of rights and interests” (see Recital 31 of its Preamble). In this context, the AG essentially considers only the argument that the broader understanding of pastiche must be adopted to safeguard the enjoyment of Charter rights, before dismissing it as requiring a contra legem interpretation of the law. Arguably, however, the determination of the meaning of the concept of pastiche, and certainly the determination of whether any particular meaning would be contra legem, should not overlook this broader legislative intention, which the ECJ has emphasised time and again in the copyright context (as I discuss here). To satisfy this intention – that is, to ensure that the harmonisation effected by the InfoSoc Directive as a whole maintains a fair balance – and in light of the fact that the legislature of the InfoSoc Directive did not give particular consideration to the specific meaning and scope of the various individual limitations and exceptions, it can well be justified that certain ambiguous notions be given a relatively broad meaning. At the very least, this line of argumentation arguably provides additional support for the conclusion that the broader understanding does not constitute an interpretation contra legem.

More broadly, the conclusion that the pastiche exception “was never designed for” permitting creative reuses more generally (para. 79) is difficult to maintain when the overall purpose of this design is not considered at length. Ironically, the AG does invoke the concept of fair balance, but only to support this conclusion, arguing that adopting a meaning permitting uses for which the pastiche exception was not intended would compromise that balance. But this places the cart before the horse: the balance should inform the meaning of the various provisions of the InfoSoc Directive, rather than be viewed simply as the outcome of an interpretative process that otherwise ignores that balance.

2.3 Copyright and the Charter

Notably, however, the AG’s Opinion is not limited to an analysis of the proposed interpretation of the concept of pastiche. After concluding that the use under consideration in the Pelham case will likely not be permitted given the current state of EU copyright law – specifically, the previous interpretations of the reproduction right and of the quotation and parody exceptions, and assuming the more limited interpretation of pastiche the AG proposes is adopted – the AG further considers the compatibility of that outcome with EU fundamental rights.

He reaches two different conclusions regarding that compatibility: on the one hand, in respect of the related right in sound recordings (and films and broadcasts), and, on the other hand, in respect of the rights granted to authors. Regarding the related right in sound recordings, he concludes that, in light of the purpose pursued by that right – to safeguard investment against piracy – the limitation placed on artistic freedom by a rule that in effect precludes many recognisable uses of sound recordings in new artistic creations is manifestly disproportionate (paras 111–122). This incompatibility, he suggests, can be remedied either by reconsidering the interpretation of the exclusive right of reproduction adopted by the ECJ in Pelham I, or through legislative intervention (paras 123–125).

By contrast, regarding the rights granted to authors by copyright, the AG is not willing to conclude that the existing system of limitations and exceptions infringes the Charter. He argues that the EU legislature possesses a particularly broad margin of discretion in this context, given that it must reconcile competing positions that are both protected by fundamental rights. Accordingly, he concludes that the balance struck in the InfoSoc Directive is “generally ‘fair’” and “does not exceed its justification” (paras 126–129). Nevertheless, he ends his Opinion with the normative consideration that increasing flexibility for artistic reuses seems desirable, in particular to avoid hindering the development of new art forms (paras 131–132).

I would like to make two comments: one methodological and one more substantive.

First, methodologically, the AG uses language associated with proportionality stricto sensu reasoning. He suggests that in this case one must assess the “balance” struck by the legislature in light of its margin of discretion (para 109), noting, with a certain tone of criticism, that the ECJ “did not thoroughly weigh the rights and interests at issue” in Pelham I (para 122). In reaching the conclusion that the related right granted to phonogram producers as currently construed “does not ensure, to a manifest degree, a ‘fair balance’” (para 112), he considers that a construction of that right which prohibits the use of short, recognisable samples – as by Moses Pelham – “significantly undermines the freedom of the arts” (para 119).

However, it seems to me that this conclusion is not at all dependent on balancing the degree of interference with the fundamental rights of borrowing artists against the degree to which such broad protection contributes to the legitimate aim pursued. He construes this aim more narrowly than the ECJ, which defined it more generally as ensuring a “satisfactory return” on the investment of the phonogram producer (Pelham I, para 30). By contrast, the AG links the investment-protection purpose of the related right more explicitly to protection against piracy through substitution (para 117). Accordingly, he rejects as irrelevant the fact that the use of small samples could be licensed and thereby constitute a separate source of revenue for rightholders (para 116).

Regarding the use of short samples that do not entail such a risk of substitution, even if they are recognisable, “[t]here is, thus, little, if any, justification for the interests of the rightholders to trump freedom of the arts.” If one views the legitimate purpose solely as safeguarding against substitutionary uses, there seems, in fact, no justification for granting protection that also prohibits uses which do not substitute for the original sound recording. But this means that the conclusion—that the protection currently afforded to phonogram producers is construed too broadly—is a matter of a lack of constitutional necessity: the protection afforded goes further than necessary to achieve the aim pursued, not one of balancing.

The different legitimate aim pursued in relation to authors’ rights is probably also better able to explain why assessing the proportionality of limitations placed on fundamental rights is more delicate in that second context. It is not simply because “cases of reuse of a work in a new creation bring face to face, in fact, two creators, with two opposing claims to freedom of the arts, making the reconciliation of those competing interests a particularly complex exercise” (para 128, emphasis in original). Regarding authors, the recognised aim is more broadly to guarantee them “an appropriate reward for each use of the protected subject matter” (e.g. VG Bild-Kunst, para 53). Licensing markets, regardless of substitution, are thus explicitly envisaged as part of this reward. This is what makes striking a balance between granting control over derivative uses – thus enabling right holders to obtain a reward by licensing those uses – and permitting certain uses without authorisation more complicated, and what justifies a broader margin of discretion for the legislature.

Second, a more substantive comment: the AG essentially concludes that the ECJ should not adopt an overly broad understanding of the concept of pastiche to remedy the previously adopted overly broad understanding of the reproduction right in Pelham I. The argument that one should not fix one mistake with another certainly holds water. However, this presumes that a broader construction of what can constitute a lawful pastiche would indeed be a mistake – contra legem, even, as the AG sees it. Although I agree that the interpretation given to the reproduction right makes a nonsensical distinction between recognisable and unrecognisable reproductions, I am unconvinced that a broader interpretation of pastiche is untenable. More importantly, if one accepts that such a broader interpretation is not impossible, an interpretation in light of fundamental rights suggests that it might even be preferred: as the AG himself concludes, the lack of flexibility for creative reuses is harming artistic freedom. Permitting those reuses as pastiches within certain limits, such as those imposed by the three-step test, would create additional room for artistic freedom while offering sufficient protection to the position of authors (cf. the Opinion of the European Copyright Society in these proceedings).

3 Mio/Konektra

Mio concerns two joined references that ask, in essence, how to determine the originality of works of applied art and how to assess whether the copyright in such a work has been infringed, in particular when its original features have been reproduced. It is this second issue that is of interest here: how should infringement in works be assessed?

2.1 Opinion

In connection with the question of how to assess infringement, AG Szpunar also engages with the judgment in Pelham I. He considers that the ECJ’s finding in that ruling – that there is only a reproduction of parts of a sound recording if those parts are recognisable – “can be applied to works” (para 65). Accordingly, he concludes that determining whether the use of elements from one work in another subject matter constitutes an infringement depends on whether “elements that are the expression of choices reflecting the author’s personality have been reproduced in a recognisable manner in the allegedly infringing subject matter” (para 67).

Notably, the AG rejects two notions that are not uncommon at the Member State level. On the one hand, he rejects the view that the assessment of infringement in works of applied art should depend on whether the borrowing subject matter produces a different overall impression compared to the allegedly infringed work (paras 66–67). On the other hand, he rejects any connection between the degree of originality and the scope of protection. Although this is a common feature of national copyright law (see the Opinion of the European Copyright Society in these proceedings), he dismisses it as being “modelled on the logic of design law”, adding that “[i]n copyright law, however, that logic has no place” (paras 68–69).

2.2 Comments

Two elements stand out in the AG’s Opinion: first, his outright rejection of the notion of reciprocity between the scope of protection and the degree of originality, and second, the importation of the element of recognisability into the infringement test for works.

First, regarding the AG’s rejection of there being any link between the degree of originality of a work and its scope of protection, the straightforward assertion that this would be incompatible with the logic of copyright seems to be belied by its commonplace application in the national copyright traditions that ultimately form the foundation on which the “logic” of EU copyright is built. This was illustrated extensively by the aforementioned Opinion delivered by the European Copyright Society in this case, to which the AG refers – albeit not in this context. Functionally, however, it is not clear that the AG’s approach really entails a rejection of this notion. Notably, he suggests that “[w]here the subject matter for which protection is claimed consists of known elements of which only the arrangement is original, a reproduction of that arrangement will constitute an infringement, whereas the mere reproduction of known elements will not” (para. 71). In other words, the AG recognises that where a work merely combines known and/or unoriginal elements – i.e. is original only because of the way it combines these – it is protected solely in respect of that combination.

Otherwise, too, the suggested approach does not appear to vitiate the notion that a low degree of originality corresponds to a narrow scope of protection. If a work is original only in respect of very limited elements that are the expression of choices reflecting the author’s personality, only the exact reproduction of those choices may result in that originality being reproduced. By contrast, the reproduction of only a small part of a highly original work – one containing many elements reflecting the author’s personality – may mean that the allegedly infringing subject matter captures elements that are the expression of such choices.

In other words, the approach suggested by the AG does not appear to undermine the existence of a link between originality and scope of protection – his explicit rejection thereof notwithstanding.

Second, regarding the AG’s suggestion that only the copying of original elements in a recognisable way amounts to a reproduction, one might question both the appropriateness and the utility of imposing such a condition. Eleonora Rosati, for instance, writes that “[i]t is unclear what advantages the adoption of a recognizability approach – as opposed to originality – would offer: if anything it could lend its side to greater arbitrariness and subjectivity”, suggesting instead that the assessment should be based solely on “an objective comparison of the earlier copyright work and the later work” to determine whether any protected elements have been copied. I am not sure I completely agree, particularly as far as the assessment of derivative creations is concerned. In those cases, any copying will often not be literal. This is true both for works of applied art and for other types of works.

It is often a matter of appreciation – and not purely a matter of objective comparison – whether one considers original elements to be present in allegedly infringing subject matter. That is, whether one considers that certain creative choices have been copied, and whether they are the same or merely similar, strikes me as not purely objective. To frame this in terms of recognisability does not seem immediately problematic.

Ironically, in the context of the related right of phonogram producers, where protection only covers literal one-to-one copying, the focus on recognisability in Pelham I made much less sense. The ECJ introduced it as a way to offer breathing space for freedom of art, but in that regard the distinction between recognisable and unrecognisable samples is difficult to justify. Both uses constitute potential licensing markets for right holders. And although unrecognisable uses, by their nature, cannot substitute for the original, recognisable samples do not necessarily create a risk of substitution for the original sound recording. In other words, it is not clear why, in the context of sound recordings, recognisability should be a differentiating factor. This, in essence, is also the conclusion of AG Emiliou in Pelham II, leading him to suggest that the ECJ ought to reconsider its interpretation of what constitutes a reproduction in part of a sound recording.

Meanwhile, in the context of authors’ rights, a more explicit focus on recognisability may have certain advantages, notwithstanding what Rosati suggests. Notably, an approach that considers recognisability may offer newfound breathing space for derivative creations, particularly if it is understood normatively and not merely empirically.

In effect, requiring the copying of original elements to be recognisable may entail a (re-)introduction, in a limited way, of an EU doctrine of free use. The ECJ seemingly rejected such a doctrine in Pelham I, but strictly speaking only as an independent doctrine operating at the Member State level in a way that would permit limitations and exceptions to the exclusive rights harmonised in the InfoSoc Directive beyond those explicitly recognised in that Directive. The ECJ did not, as such, explicitly preclude a similar limitation being inherent in Article 2 of the InfoSoc Directive itself. If anything, despite giving the right of reproduction of phonogram producers a broad prima facie scope in Pelham I, the ECJ showed a willingness to recognise inherent limitations to that right by carving out reproductions “unrecognisable to the ear” from the scope of the reproduction right in order to protect artistic freedom – unfortunate as the specific focus on recognisability may have been in that context.

The recognition that the reproduction right is inherently limited, particularly when it comes to derivative creations that rely on non-literal copying of existing works, connects well to pre-existing national copyright doctrines. Notably, the German doctrine of free use (freie Benutzung) – which met its demise in Pelham I – permitted new and independent creations that incorporated other works to the extent that the original features thereof “faded away” (that is, were no longer recognisable) in the new work. This could occur either because the original features receded into the new work in such a way that they were overshadowed by the originality of the new work, or because – even though those original features remained clearly perceptibly recognisable – the new work maintained a certain inner distance from the earlier work, in particular through artistic engagement with or anti-thematic treatment of that work. It was this second understanding of free use that served as the basis for permitting parodies – which, to be successful, require recognisable imitation – until the introduction of an explicit parody exception into German copyright law in 2021 (for a discussion of the use of national free use provisions and the negative implications of their rejection in Pelham I, see this article by Martin Senftleben).

A normative understanding of recognisability in this same spirit would ask, in essence, whether the original features of the new work are so strong that it can no longer be said to derive its originality from any original features of the work(s) it incorporates. This inherent limitation of the reproduction right would provide European copyright with a modest degree of flexibility that it currently lacks in respect of new works that build on old ones – especially if the ECJ were to follow AG Emiliou’s suggestion regarding the meaning of the concept of pastiche. It would add a certain subjectivity but arguably not more than is already present in EU copyright, with its myriad open norms and concepts, such as the three-step test, notions of proportionality and fair practice, and the overarching concept of fair balance.

3 Final remarks

EU copyright law notoriously lacks flexibility. The closed system of limitations and exceptions introduced by the InfoSoc Directive faced strong criticism even before its adoption. The ECJ has done flexibility few favours. Although it has occasionally shown a willingness to interpret both exclusive rights – as it did in Pelham I – and limitations and exceptions in ways that accommodate the enjoyment of users’ fundamental rights  – e.g. in Funke Medien and Spiegel Online – these instances do not appear indicative of a greater vision for how protection should be balanced with breathing-space for follow-on creation. Importantly, for all its talk of the importance of copyright maintaining a “fair balance” of rights and interests, the ECJ itself eschews actual balancing when interpreting copyright norms (as explained in detail here). One could understand this lack of vision as an expression of due restraint towards the legislature. But when, on the one hand, the EU legislature can hardly be accused of having any particular vision in this regard – certainly not at the time of the adoption of the InfoSoc Directive – and, on the other hand, the ECJ is more than willing to remove Member State flexibilities through an expansive understanding of the scope of harmonisation achieved by secondary law, the Court might reasonably be expected to extend its proactive approach to take account of this balance more generally.

Most disappointing in this regard was perhaps the narrow construction of the quotation exception in Pelham I, which limited its scope to uses that enter into a dialogue with the quoted work. Following this restrictive interpretation – which precluded its application to uses such as Moses Pelham’s incorporation of small samples in musical creations – collective hope for redemption seems to have centred on the pastiche exception. The arguments adduced by AG Emiliou against a more accommodating interpretation thereof are, in my view, not strong. Given its ambiguous meaning, an interpretation that seeks optimally to reconcile room for creative freedom with respect for right holders’ entitlement to an appropriate reward may point to a broader understanding of that concept, whose application is, in any event, limited by open notions such as fair balance and the three-step test.

But the pastiche exception should not be seen as the last vestige of hope for flexibility in EU copyright law – save for legislative intervention. Perhaps the ECJ can still be convinced that the reproduction right, insofar as it applies to non-literal copying, is inherently limited. The adoption of a recognisability test also for the reproduction right in respect of authorial works may be a tentative, small step in that direction. That could serve as a starting point for the development of an EU doctrine permitting free uses in new and independent works, if the ECJ can be persuaded to take a normative approach to recognisability.

This would approach the permission to use works in new and independent creations that existed in some Member States. The ECJ rejected such national provisions in Pelham I insofar as they constituted limitations or exceptions going beyond those permitted by EU law, but only after recognising that the reproduction right, insofar as granted to phonogram producers, is itself inherently limited. This leaves the door open for a (re)development of such a doctrine at the EU level.

Photo: Istock / Pakorn Supajitsoontorn