In November 2010, the Prime Minister commissioned Professor Ian Hargreaves to conduct an independent review of the UK’s intellectual property laws, “to make them fit for the internet age”. In his subsequent report, “Digital Opportunity: A review of IP and Growth”, Professor Hargreaves recommended the introduction of a fair dealing exception for works of parody, caricature and pastiche.
After extensive consultation, the Government published in December last year the final part of its consultation on copyright law in the UK, confirming that it will follow Professor Hargreaves’s recommendation, with legislation likely to come into force in October 2013.
The nature of parody is that it is often aimed at, and makes use of, works protected by copyright. As the law in the UK stands, individuals, broadcasters and others who wish to create parodies from existing copyright works, need first to seek permission to use the underlying content by the copyright owners. If they do not, they run the risk of legal action being taken against them for copyright infringement. This contrasts with the situation in countries like France, Germany and the US, where people are able to copy other people’s works for the purpose of parody, without breaching another’s copyright.
Whilst the exception now envisaged by the Government was provided for years ago by the European Copyright Directive (2001/29/EC), it has not found its way into UK law. There is no provision for it in the Copyright Designs and Patents Act 1988 (“CDPA”), the main act of Parliament governing this area of the law in this jurisdiction. The current ‘fair dealing’ exceptions in the CDPA apply only to acts concerning non-commercial research, private study, criticism or review, reporting of current events, and education.
Whilst the genre of parody is centuries old, it has acquired in more recent times, and with the development of digital technology, new popularity and arguably new relevance. It is far easier and quicker than it used to be to create ‘mash-ups’ of other people’s copyright works for the purposes of parody (yet, without the appropriate consents, is likely to be unlawful).
Famous examples include Swede Mason’s Master Chef mash-up, MasterChef Synaesthesia (a digital collage of quotes from presenters John Torode and Gregg Wallace set to beats) and Newport State of Mind (a parody of the Jay Z and Alicia Keys song Empire State of Mind, which replaces the original lyrics with references to Newport, South Wales, rather than New York). Both examples use original copyright material belonging to another, and both quickly went viral, being viewed by millions of people over the internet. A more recent example saw Nick Clegg ‘sing’ his much publicised apology for reneging on his promise to oppose a rise in tuition fees. Soon after the Deputy Prime Minister released his original apology video, satirical website The Poke posted on YouTube an auto-tuned remix version of the same apology which, with Clegg’s permission, was later released as a single on iTunes with all proceeds being donated to Sheffield Children's Hospital.
The new law will require that any parody of a work be ‘fair dealing’ which, the Government says, will ensure that the exception is not misused and will preclude the copying of entire works where such use would not be considered fair. The exception will allow use of works for parody for non-commercial purposes but also for commercial purposes, to the extent that such use is considered ‘fair’. Whether an act amounts to fair dealing or not is a question of fact and degree, although the main factors to consider are:
- Whether the alleged fair dealing commercially competes with the exploitation of the underlying copyright work (if it does, then a fair dealing defence is likely to fail);
- Whether the underlying work has already been published (if, for example, the work is obtained in breach of confidence, then it is unlikely to be fair);
- The amount and importance of the work taken.
In its Impact Assessment for the proposed new exception, the Government gave the example of YouTube videos; the use of an entire (and un-changed) musical track with an altered or replaced video would arguably give rise to a product that is substitutable for the original music alone. As such, it is unlikely to be considered ‘fair’ under the new legislation. Limiting the exception by fair dealing, the Government argues, would allow a work of parody to reference copyright works and build upon them as source material, but is likely to stop short of allowing parodists to take entire unchanged works.
The Government has also confirmed that the existing moral rights laws will remain in place, so that creators of copyright works will still be able to object to the derogatory treatment of their works (for treatment of a work to be derogatory, there must be a distortion or mutilation of the original work or something which is otherwise prejudicial to the honour or reputation of the author).
Is the change in the law necessary?
As the Government points out itself in its response to the consultation, many ‘consumers’ of parody works are not even aware that the CDPA currently restricts the use of copyright for this purpose. This is presumably because video mash-ups have become common place on YouTube and elsewhere and can quickly go viral, often without much reprisal from the copyright owners of the underlying works. Even if amateur parodists are aware of the current state of the law, are they really deterred by it?
The Government argues that as the current law restricts people’s ability to parody the works of others, this may limit their freedom of expression and creativity. A change is needed, it is said, because getting copyright clearance is difficult, time-consuming and expensive. The alternative for the British parodist is to take the risk and issue a parody without rights clearance, and possibly face legal action (together with the potential for a subsequent pay out in damages and costs). When MasterChef Synaesthesia was originally posted online, the original underlying rights holder (the production company, not the BBC) reacted by raising a legal challenge to get the parody removed. Similarly, YouTube removed Newport State of Mind from their site, following a copyright claim from EMI Music Publishing. In contrast, parodists in the US for example, would not face the same restrictions. This, the Government says, puts UK parodists arguably at a disadvantage in the “global market for comedy”.
Parodists in favour of a change in the law argue that current restrictions make it difficult for them to make any money from their work, as broadcasters are reluctant to use it through fear of legal reprisal from rights holders. They also argue that current copyright laws are used as an excuse by others to remove material from the internet whose purpose is to comment on companies or people in the news.
It is not, the Government says, just amateur parodists who will benefit from the change in the law. It is claimed that the main economic beneficiaries of the change will also include entertainers and comedians, and the producers and broadcasters of comedy shows; satirical programmes such as the BBC’s Have I got News for You and Channel 4’s Ten O’clock Live will be able to make savings and respond more quickly to events, as they will no longer be faced with the need to clear rights for this purpose.
Those against the new proposals, including content providers such as authors and publishers, argue that they will suffer a loss of revenue from granting licenses (including, and in particular, synchronisation licenses), which will decrease the incentives to create new works. ITN, who license film clips for parody purposes, expressed particular concern that the proposals would have a “dramatic cumulative effect on revenue streams”.
The Government is confident however that as the new exception will only apply in cases of fair dealing, the appropriate balance between the rights of underlying copyright holders and parodists will be struck.
Questions remain though. How will the changes, for example, affect commercial advertising? Will the exception lead to an increase in claims by people exerting their moral rights (parody, by its very nature, will often involve derogatory treatment of works by others)? And what of pastiche and caricature, the two other (very different) genres to which the new exception will apply, yet which barely get a mention in the Government’s response to the consultation? In addition, what amounts to fair dealing differs according to the act in question, and how the Courts will choose to interpret fair dealing in the context of parody, as opposed to caricature or pastiche, is not certain.
Whether the exception brings any legal clarity of course remains to be seen, and it will be interesting to see how the new legislation is interpreted by parodists, rights holders, and ultimately the Courts.