March 13, 2023

Expert opinion on pastiche: More freedom for social communication and internet culture in copyright law

Memes, mash-ups, fan fiction: These and other forms of social communication are what make the internet so appealing to many. For a long time, however, they existed in a grey area of copyright law. Today, the Society for Civil Rights publishes an English translation of the expert opinion "The Pastiche in Copyright Law" by Dr. iur. Till Kreutzer (iRights Law). It examines the new copyright exception for pastiches introduced in the German copyright code 2021 as part of Germany’s transposition of the 2019 EU Copyright Directive. The central question: Which forms of use of copyrighted works – especially in the context of social online communication – will be legalized by the pastiche exception?

Download the study: The Pastiche in Copyright Law, CC-by 4.0 Dr. Till Kreutzer

Copyright law needs to strike a fair balance between different fundamental rights – in particular between the right to (intellectual) property on the one hand and freedom of expression and the arts on the other. In the context of the debate about the introduction of mandatory upload filters by the EU Copyright Directive, there was a strong concern: The automatic enforcement of copyright by upload filters could lead to the mass blocking of tolerated forms of social communication on the internet, the lawfulness of which, however, had not been clarified.

These forms of expression, such as memes, remixes, reaction GIFs or samplings, are characterized by the fact that they often make use of copyrighted material but rarely cause economic damage. At the same time, the more these forms of communication shape political debates and creative processes, the more important they become to the exercise of freedom of expression and the arts. In order to protect these fundamental rights in light of the intensification of copyright enforcement, European legislators introduced new rights of use in parallel with upload filters: In addition to citation, criticism, and review, the use of copyrighted works for caricature, parody, and pastiche was legalized across Europe. This was the European Union's response to calls from civil society to "save the meme."

Dr. Till Kreutzer presents his findings on pastiche at Filtered Futures conference

In the meantime, the European Court of Justice has ruled on the compatibility of the controversial Article 17 of the EU Copyright Directive with freedom of expression. In doing so, it concludes that the safeguards for freedom of expression, including the right to caricature, parody and pastiche, are essential if upload filters are to be applied in accordance with fundamental rights. The Society for Civil Rights (GFF), together with our partner COMMUNIA, hosted the academic conference "Filtered Futures" on the consequences of the European Court of Justice's Article 17 ruling on September 19, 2022 in Berlin, where Dr. Till Kreutzer presented the results of his expert opinion on pastiche.

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