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The parody exception to copyright infringement

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02/12/2014

New copyright regulations came into force in the UK on 1 October 2014. The regulations have their origins in the Hargreaves Review of Intellectual Property in 2011, which made a number of suggestions as to how the UK’s intellectual property regime could be modernised. One of the changes introduced by the regulations concerns the making of personal copies of copyright works for private use. Another concerns quotation (permissible where the use is “fair dealing”, the extent of the quotation is no more than necessary and is accompanied by sufficient acknowledgement). The final change concerns the use of parody.

The Compact Oxford English Dictionary defines “parody” as “an amusingly exaggerated imitation of the style of a writer, artist, or genre”. Taking that definition, parody is nothing new. Aristotle makes mention of it and even a casual glance at UK eighteenth-century art or literature, for instance, will show a country in which parody was very much part and parcel of public life. However, parody has probably never been as popular as it is today. Twitter is awash with parody accounts (the Kevin Pietersen parody account is a recent infamous example in the UK) and YouTube with spoof videos. Despite this, until 1 October 2014, there was no copyright exception for parody. This point was made in the Hargreaves Review, which said that the rise of video parody and social networking sites justified a new “parody” exception to copyright infringement.

The new exception, which amends section 30 of the Copyright, Designs and Patents Act 1988 (the Act), allows “fair dealing” with a copyright work for the purpose of caricature, parody and pastiche without the permission of the copyright owner. Contractual provisions which purport to exclude this exception will be ineffective. The difficulty with the new legislation will be in identifying whether something is parody – what one person considers parody, another may not, with the judge as ultimate arbiter. This would seem to be fertile ground for litigation.

To understand the scope of the new parody exception, it is important to understand the limits imposed by the concept of “fair dealing”. The Act does not provide much assistance in defining what will/will not constitute fair dealing. The case of Ashdown v Telegraph Group Ltd [1] emphasised the amount and importance of the work taken as a key consideration. Taking an excessive amount, or taking a small amount on a regular basis, can render the dealing unfair. Since in order for parody to be effective, the original work must be recognised, this will usually necessitate the reproduction of a substantial part of the copyright work, with the consequence that in many cases parody will be inherently “unfair dealing”.

In addition to the limitations imposed by the requirement for “fair dealing”, the new parody exception may infringe the owner’s moral right, set out in section 80 of the Act, to object to the derogatory treatment of their work. A treatment is derogatory for these purposes “if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director”. A parody will often do just that.

The introduction of the new parody exception is timely as the Court of Justice of the European Union has very recently given a ruling on parody. The case in question [2] concerned Johan Deckmyn of the right-wing Vlaams Belang political party. Deckmyn distributed a calendar including an image adapted from a comic book entitled “De Wilde Weldoener”. In Deckmyn’s version, the mayor of Ghent is shown showering coins on immigrants. The rights holders in the original work instituted copyright proceedings in the Belgian court. Before the Brussels Court of Appeal, Deckmyn argued that the image should fall within the Belgian exception for parody, caricature and pastiche. The Belgian law reflects Article 5(3)(k) of the Information Society Directive [3], which allows Member States to introduce an exception to the reproduction right and the right of communication to the public for the purpose of caricature, parody or pastiche. The Belgian Court referred a number of questions to the European Court.

In its ruling, the European Court held that parody was an autonomous concept of EU law and, as such, must be interpreted uniformly throughout the EU. It held that the criteria for the parody exception were minimal and the only essential characteristics were that it must evoke an existing work while being different from it, and be an expression of humour or mockery. It will be for the national courts to determine whether these threshold requirements are met. The Court also said that regard must be had to the need to strike a fair balance between the rights and interests of the author of the original work and those of the people creating the parody. This calls to mind the “fair dealing” aspect of the exception in English law, just as the Court’s observation that the national court must determine whether the rights holder has a legitimate interest in ensuring his work is not associated with a discriminatory message is not a long way from the “moral right” in section 80 of the Act.

The European Court has given a low threshold to parody but the elephant in the room is the subjective test for whether something is humorous. What is amusing to a judge in one EU Member State may be met with a blank expression or sour grimace by a judge in another Member State, or even by the judge sitting next to him.

Taken together, the change to the Act and the judgment of the European Court provide a welcome recognition of the importance of parody in the modern world and have made important progress in bringing copyright laws up to date in this respect.

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[1] [2002] Ch 149
[2] Case C-201/13
[3] 2001/29/EC

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