Immaterialgüter- und Wettbewerbsrecht

The (Missing) Parody Exception in Italy and its Inconsistency with EU Law

Spina Alì, GabrieleThe (Missing) Parody Exception in Italy and its Inconsistency with EU Law Journal of Intellectual Property, Information Technology and Electronic Commerce Law 12, 5 (2021), 414 - 438.

The Italian Copyright Statute does not contain a general exception for ‘parody, caricature and pastiche’ pursuant to Article 5(3k) of the InfoSoc Directive. In spite of this, commentators believe that the case law prior to the Directive sufficiently safeguards parodies against infringement, by granting them the status of autonomous, ‘transformative’ creations and leveraging on the fundamental freedoms of speech and artistic expression as enshrined in the Italian Constitution. In addition, they have lauded this approach for avoiding downgrading parody from an ‘overarching principle’ to a narrowly defined ‘exception’ to copyright protection. The present article criticizes this construct by dissecting and rebuking the related arguments. It emphasizes its inconsistency with the InfoSoc Directive and the recent case law of the Court of Justice of the European Union and submits that, paradoxically, framing parody as a principle leads to more restrictive outcomes than an ad verbum implementation of Article 5(3)(k).