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Publication

The development of the parody exception to copyright infringement

08/01/2015

Locations

United Kingdom

Introduction

On 1 October 2014, two new "fair dealing" exceptions were introduced, one of which allows use of a copyright work "for the purposes of caricature, parody or pastiche"[1].  It has been suggested that the introduction of a parody exception will bring important cultural as well as economic benefits to the UK[2].  It is clear that a change in the law has taken place but does this change provide a framework within which these goals can be achieved?  

Pre 1 October 2014

From 1911 until October 2014 there were only three "fair dealing" exceptions available under English copyright law: research and private study; criticism and review; and news reporting[3].  The use of all or a substantial part of a copyright work required the consent of the copyright owner unless the use fell within one of these three exceptions. 

The nature of a work of parody is often such that there is an intention to create a connection with another work.  Without the consent of the copyright owner of a work being parodied, before 1 October 2014 the parodist risked being found to have infringed copyright since the assessment of whether a substantial part of a copyright work has been used depends on the facts of each case. 

Given that parody and satire are often seen as a cornerstone of British humour, there has been surprisingly little case law in the English courts on the subject. On the rare occasions where the question of whether a parody infringes the copyright in a work has arisen, the courts have shown a tendency to be relatively accommodating to the parodist.  There have been examples where the courts have found that no substantial part of the original work was used for the purposes of the parody[4] or that the new work was sufficiently "original" not to be an infringement[5]

It was suggested that a specific parody exception was not required because use of a work for the purposes of parody could be dealt with under the existing exception of "criticism or review".  The issue with this however is that for this exception to be available the use needs to be accompanied by sufficient acknowledgement and the subtle humour of a clever parody could be destroyed by such acknowledgement.  As suggested in Laddie, Prescott and Vitoria[6] "it would be a pompous copyright law indeed which permitted parody but solemnly insisted on express identification of the intended target".    

Background to new exception

The Information Society Directive[7] specifically allows member states to implement an exception for "caricature, parody or pastiche".  In 2006 Andrew Gowers recommended that the UK take advantage of this opportunity in order to enable parody to create value and reduce transaction costs across Europe[8].  This recommendation was repeated in the Hargreaves Review[9] in 2011 where Professor Hargreaves was arguably more emphatic in his support of a parody exception.  He cited, in particular, the increasing importance of video parody to private citizens arguing that it "encourages literacy in multimedia expression in ways that are increasingly essential to the skills base of the economy."

The proposal for a parody exception was not, however, universally welcomed.  Some argued that it would be damaging to the interests of copyright owners to implement a further exception in a social environment where copyright owners already struggle to protect their assets.  Others argued that the exception was unnecessary as there was little evidence to suggest that parody did not already thrive notwithstanding the need to license an underlying work.

The Intellectual Property Office commissioned reports to assess the impact of online parody in the music video industry[10] and it was found that there was no evidence of economic damage to rights holders through substitution and the potential for reputational damage was limited.  Following these findings and further consultations on the issue, the government eventually acted on the advice of Gowers and Hargreaves.

Post 1 October 2014

In the UK now, fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work[11].  This new law does not however give entirely free rein to people to use copyright works - there are two key thresholds to be satisfied before the use is permitted.

First, the use of a work must be for the purposes of caricature, parody or pastiche.  Statutory definitions of these terms are not provided in either the Information Society Directive or the Copyright, Designs and Patents Act (as amended).  Guidance from the Intellectual Property Office states that the terms should be given their ordinary dictionary meanings but ultimately it will be for the courts to interpret these terms.  This creates a level of uncertainty for potential users of a work, however useful guidance has been given at a European level in the case of Deckmyn[12]where it was held that "parody" is an autonomous concept of EU law with the following essential characteristics: first, to evoke an existing work, while being noticeably different from it; and secondly, to constitute an expression of humour or mockery.  As what is funny to one person is not necessarily funny to another, it will be interesting to see how the courts develop an objective test for something which is arguably subjective.

Secondly, the use of the work must constitute "fair dealing".  Again, there is no statutory definition of this concept; it will be a matter of fact, degree and impression to be determined on the facts of each case. In relation to the existing "fair dealing" exceptions the courts have looked at similar factors when assessing what is fair.  These include: the amount of the original work used and whether such amount is reasonable and appropriate; and whether the use of the work is for a rival purpose which might affect the market for the original work.  Since the policy reasons for each exception to copyright is different, the balance of factors required for a use to be fair will also be different.  It remains to be seen how the courts will carry out this balancing exercise for the new exception.  The hope for copyright owners is that if there is a clear economic impact on their interests, the use will be deemed to be unfair.

Conclusion

As with any new law, how the courts approach the application of this new exception remains to be seen.  The question of whether the intended goals will be achieved is also currently unanswered.  The potential economic benefits to the creators of a work of parody are arguably limited by the need to ensure that they do not conflict with the interests of the original copyright owner.  If the findings of the studies carried out in the limited genre of music video prove to be the case in a wider context then perhaps the economic impact of works of parody to copyright owners might even be a beneficial one.  If this is the case then at least one of the intended goals for the new exception will have been achieved. 


[1] Section 30A Copyright, Designs and Patents Act 1988 added by Copyright and Rights in Performances (Quotation and Parody) Regulations 2014/2356

[2] Digital Opportunity:  A Review of Intellectual Property and Growth by Professor Ian Hargreaves. 

[3] Section 30 Copyright, Designs and Patents Act 1988

[4] Glyn v Weston Feature Film Co [1916] 1 Ch 261

[5] Joy Music Ltd v Sunday Pictorial Newspapers Ltd [1960] 2 QB 60

[6] The Modern Law of Copyright and Designs Volume 1 (4th edn)

[7] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001

[8] Gowers Review of Intellectual Property December 2006

[9] Digital Opportunity:  A Review of Intellectual Property and Growth by Professor Ian Hargreaves May 2011

[10] Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube January 2013.  The Treatment of Parodies under Copyright in Seven Jurisdictions: A Comparative Review of the Underlying Principles January 2013. Copyright and the Economic Effects of Parody: An Empirical Study of Music Videos on the YouTube Platform and an Assessment of the Regulatory Options January 2013. 

[11] Section 30A Copyright, Designs and Patents Act 1988 added by Copyright and Rights in Performances (Quotation and Parody) Regulations 2014/2356

[12] Deckmyn v Vrijheidsfonds Court of Justice of the European Communities 2014