1 October 2014
Under current UK legislation the Copyright Designs and Patents Act 1988 (“CDPA 1988”) did not provide for a parody exception to copying of copyright works.
Copyright law protects an owner of copyright works from, amongst other things, unauthorised copying or reproduction of the whole or a substantial part of one’s works. A defendant who parodies a work in the UK could therefore potentially be sued for copyright infringement. The claimant would then argue two main points:
i) that the defendant has copied a substantial part of his work which is an exclusive right of the copyright owner (s.16 CDPA 1988); and/or
ii) that the defendant is in breach of the claimant’s moral rights in the work, more specifically the right to object to derogatory treatment.
A defendant could then try to use what is known as the fair dealing defence of criticism and review, or try to argue human rights freedom of speech principles, both of which would be quite weak points.
Following the Gowers Review (2006) and the Hargreaves Report(2011) consultations began which considered the introduction of a new copyright exception, namely that of parody or pastiche.
Under the new law, third parties will be able to use minor aspects of copyright works with greater freedom without fearing being drawn into legal battles. Third parties will no longer have to seek the copyright owners’ permission to use their works in the context of parodies. The need for reform has been pushed by the continued increase of protected material being used on social sites such as YouTube and Facebook. The changes will bring the UK in line with other jurisdictions such as Germany, France, Australia, Canada and the Netherlands.
The new changes to copyright law which come into force today introduces a parody exception, albeit under the umbrella of fair dealing. The new section 30A CDPA 1988, introduces the following text:
30A Caricature, parody or pastiche
(1) Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.
(2) To the extent that a term of a contract purports to prevent or restrict the doing of any act which, by virtue of this section, would not infringe copyright, that term is unenforceable.
The idea behind this new exception is to bring copyright law in line with acceptable norms in a digital society by allowing users to parody the work of a copyright owner without his or her consent.
Will these changes have any practical significance to the creative industry?
Although some have applauded the new defence as a big step forward in UK copyright law, others are more critical. This is partly due to the difficulty in establishing what amounts to a parody and partly because the provisions under both copyright law and the law of defamation could trump any parody or pastiche defence.
What is a parody?
Lawyers, practitioners, judges and indeed the general public struggle in their attempts to define parodies. In a recent preliminary ruling the Court of Justice of the European Union a three stage test for what amounts to a parody was discussed. The parodical work needs to invoke the earlier work whilst still being noticeably different and must be respectful of the original work. Secondly, there must be an aspect of humour to the work in question.
In essence this means that the work must be sufficiently similar, yet different enough to enable the recipient to identify the work that is being parodied whilst simultaneously understanding it to be a parody.
However, humour has not been defined and it’s still unclear as to whether humour is determined by the public’s response or it’s defined from the perspective of the parodist. Furthermore, section 30A makes no reference to satire.
Fairness in the fair dealing
The first question that this raises is of course the extent to which the “comedian” can parody the work within the remits of what is fair. Case law shows that this in itself limits the amount that a person can copy from the original work. The comedian should therefore be cautioned as to the amount of the work actually copied.
This puts the comedian in a catch-22:
Copying a substantial amount of the claimant’s work will most probably not amount to fair dealings and therefore infringe the rights in the copyright work, whilst not copying a substantial part may risk the work not being identifiable as a parody.
Defamation and moral rights
The next hurdle is that the proposed changes do not amend the moral rights to object to derogatory treatment of one’s work under the CDPA 1988. This may arguably defeat the purpose of a parody, as in many circumstances it indeed involves some form of derogatory treatment of the work in question. Likewise, a claimant could still rely on the laws of defamation where the parody allegedly goes too far. This would, again, trump the fair dealing parody defence.
As much as these changes appear to be in favour of third party use of protected content, it may also encourage copyright owners to take legal action, as parodies commonly push the boundaries of what is considered to be of good taste.
Further, as the new exception raises more questions than it answers its implications for the copyright owner, and indeed the comedian, remains to be seen. It can be anticipated that this issue will initially give rise to many disputes as to the boundaries of its application before the issue settles down. It is apparent therefore that future case law will have to reveal the real benefit of these changes.
Paida Dube, Intern, New Media Law LLP
Sarmad Saleh, New Media Law LLP