“ČEZ v. Greenpeace”Decision of the Supreme Court of the Czech Republic (Nejvyšší soud) 28 July 2023 – Case No. 23 Cdo 2178/2022; ECLI:CZ:NS:2023:23.CDO.2178.2022.1

The latest amendment to the Czech Copyright Act (Act No. 429/2022 Coll.) reworded the referencing provisions in Secs. 74, 78, 82 and 86, explicitly confirming that the statutory exception for caricature and parody (and now also pastiche) in Sec. 38g of the Copyright Act is applicable to copyright-related rights.For the purpose of parody, both copyrighted works and performances by artists, as well as audio(-visual) recordings, can be used.Section 38g of the Copyright Act does not, by itself, exclude the possibility of using an audio-visual work for the purpose of parody without a license contract. This also includes modifying the work by adding new footage and subsequently using it in this modified form because even such modification and use can fulfil its defined parodic purpose.Whether such a use of an audio-visual work in its specific form strikes a reasonable balance between the interests of the author on one side, and the freedom of expression of the user of the protected work on the other, must always be assessed individually based on the specific circumstances of the case.The requirement for a clear differentiation between the parody and the original work should not be conflated with the requirement of originality as stipulated in Sec. 2(2) of the Copyright Act.In assessing whether the use of the work conflicts with its normal use, potentially causing undue harm to the author’s legitimate interests, it is important to note that the direct or indirect economic benefit derived by the use is not inherently significant, as such a circumstance does not serve as a precondition for the non-contractual use of the work for parody purposes.