The Government is to introduce legislation so that parody, caricature and pastiche will be permitted on a so-called “fair dealing” basis. It will be revealing to see the detail but it is worth looking at some of the arguments raised for and against the proposal and to speculate about how existing “fair dealing” principles might be applied to a parody exception.
The existing law
There is currently no exception for parody, caricature or pastiche in UK law on any basis. But copyright can only be infringed if you copy, not if you create a parody, caricature or pastiche without copying.
Some caricaturists, for example, Harry Enfield and Paul Whitehouse, tend to send up a genre or type. So, often their sketches don’t copy any part of any original work and refer only to fictional individuals. These do not need a parody exception because they do not infringe copyright in the first place.
If you do copy, for infringement to take place, you must copy at least a “substantial part” of the original work. Whether or not what you have copied is “substantial” is a qualitative, not quantitative, test. If what you have copied is an original and important part of the first work, copying is likely to be considered substantial.
Copying a substantial part of an original work is difficult to avoid for many parodists. It is often essential, for the parody to be understood, that the original work is easy to identify. Currently these people have to seek and pay for licences.
The Copyright Directive allowed members of the EU to include a parody exception and some, for example France, already have one. The Government-commissioned 2006 Gowers Review also recommended it. The Government rejected it in 2008 but has clearly had a change of heart.
Some of the arguments raised for and against
For:
- Consumers wanted to be free to be amused by the genre and felt it could be a freedom of speech issue.
- The Government appears to think that often non-commercial, user generated parodies should arguably not infringe copyright and are in any event difficult to police.
- Parodists, particularly topical ones, did not want to have to spend the time and money obtaining (or risk being refused) permissions and wanted to be unshackled in monetising and proliferating their creations.
Against:
- Content Providers eg TV and music companies were concerned about loss of revenue from granting the permissions for the parodies.
- Music Publishers argued more specifically that losing the right to grant synchronisation licences. (licences to copy music with audio visual material eg putting music in TV programmes and adverts) and lyric adaptation licences for parodies would lead to a substantial drop in income ultimately resulting in less investment in new musical talent.
- Music Publishers and Authors are concerned about the integrity of their works (see Moral Rights – below).
By adopting an exception on a “fair dealing” basis the Government is seeking to offer some comfort to the content providers over their concerns about loss of licensing revenue. The Government seems to think that there will still be licensing opportunities, if parody is permitted on this basis only.
Having said that, it is difficult to see how the exception is not going to lead to a significant loss of income to the already under attack content industries. According to ITV, the Music Publishers Association and others, this is a major source of income for them.
Fair dealing
What might “on a fair dealing basis” mean in the context of this parody exception?
There is no definition of fair dealing in the Copyright Act. Its origin was an international treaty, to which the UK is signatory, the Berne Convention. This left it up to individual countries to allow exceptions to the exclusive copying right where the activity did not interfere with the usual exploitation of the work in question or prejudice the legitimate interests of the author. One could argue right away that a parody exception will do the latter almost by definition.
Some of the issues from the decided cases about the existing fair dealing exceptions may be taken into consideration in the context of this parody exception.
The parody would have to reproduce the whole or a substantial part of the original work (otherwise there would be no infringement and no need to rely on the exception).
Assuming the parody would otherwise infringe copyright, is the amount of the substantial part of the original work used reasonable in the circumstances? How much of the original work has been used? Is it nearly all of it? If so, is it unlikely to be considered fair?
What would happen, for example, with a parody of a song where the lyrics are changed (but would otherwise infringe the copyright in the original lyrics) and the music is the same? Possibly, the music would be available to be licensed for a fee, as before, and the new parody lyrics may be considered fair dealing. In these circumstances, the relevant music publisher and writer would lose the income from the lyric adaption licence. Where one writer wrote the original music and another the original lyrics, is it reasonable that the lyricist (and his or her publisher) misses out altogether?
If the parody does not use all of the original work, what proportion does it use? In the context of the existing fair dealing exception for criticism and review, it might be fair dealing to take 5% of an original work, but not 40%. Will this apply to the parody exception?
Is the parody work really just competing with the original work? If so, it may not be seen as fair.
If the original work was unpublished or subject to any kind of confidentiality, then the exception would probably not apply.
We can expect disputes about what is and is not “parody fair dealing”.
Moral rights
The Government proposal will not involve any changes to the current moral rights regime.
This includes the right for authors to object to derogatory treatment of their works. For a treatment of a work to be derogatory there has to be distortion or mutilation of the original work or something which is otherwise prejudicial to the honour or reputation of the author.
All the indications are that a parody which infringes an author’s moral rights will not be considered “fair dealing”.
But we may well also see more moral rights-based claims in the future.
Defamation/Passing off/Trade marks
The Government’s response about the proposed exception focussed on copyright. So we assume other areas of the law which may be relevant to parody will remain unaffected.
There have been instances where parodies have led (at least in part) to claims by the parodied party in defamation or passing off.
There is no passing off if the source the original work is made clear. The Evening Standard ran a spoof of well known MP Alan Clark’s diaries which was called “Alan Clark’s Secret Political Diaries”. This included a photograph of him but did not clearly identify the true author. The court found that the Evening Standard was liable for passing off and stated that, should the publication continue, the identity of the true author must be made sufficiently clear.
Some of the decided cases involving elements of parody have also related to trade mark infringement. If the purpose of such a parody is to imitate someone else’s goods or services and this falls foul of trade mark law, the use will probably fail any “purpose” test for fair dealing anyway (ie it will not be fair dealing for the purpose of parody, caricature or pastiche).
More to follow when the exception becomes law.