The recently published Hargreaves Report looked at updating the UK’s copyright laws to make them fit for purpose in the digital age. Although EU law allows a more relaxed regime for parodies, the UK has up till now stood out against any reform. Rosanna Foster investigates whether change is now at last in the air.
Topic: Intellectual property
Who: Professor Ian Hargreaves, Chair of Digital Economy at the Cardiff School of Journalism, Media and Cultural Studies and Cardiff Business School
When: 18 May 2011
Law stated as at: 1 June 2011
"Digital Opportunity: a review of intellectual property and growth", otherwise known as the Hargreaves Review of Intellectual Property and Growth (the "Review"), led by Professor Ian Hargreaves, has been published.
While reports of the Review's publication have focused on its recommendation of creating a Digital Copyright Exchange to facilitate easier copyright licensing, the Review also considered exceptions to copyright, and endorsed the introduction of a specific exception to permit parody in the UK.
Return to a familiar theme
The Review highlights the increasing popularity of video parodies such as the well-known homemade parody Newport State of Mind (based upon the popular hit Empire State of Mind by Jay-Z). This parody achieved viral status and reportedly had over two million Youtube hits before it was taken down from the site when the rights holders used their legitimate right under UK law to have it removed.
The Review notes that had this happened in the US, the fair use exception could have been used to defend the video. The argument for an exception to cover this type of work is said to be strong "in both cultural and economic terms", but there are no specific suggestions as to how an exception might be implemented and what it should and should not cover.
Readers may be aware that the Gowers Review of Intellectual Property, published in 2006, similarly recommended the creation of an exception to copyright for the purpose of caricature, pardy or pastiche by 2008. In Taking Forward the Gowers Review if Intellectual Porperty – Proposed Changes to Copyright Exceptions, the IPO set out proposals for how it might be implemented. It was acknowledged however that such an exception would be limited in scope in order to address concerns that advertisers could use parody to promote products contrary to the interests of the copyright holder.
Having received a number of submissions from organisations representing rights-holders expressing concern at the impact on their commercial interests, the proposals were dropped in the follow-up document, Taking Forward the Gowers Review of Intellectual Property – Second Stage Consultation on Copyright. With reference to using copyright work in advertsing, music industry representatives expressed concerns that users may try to use an exception to justfy using copyright works without receiving permission and/or paying for a license, resulting in them losing important earnings. There were also concerns that parodies used in advertising might in some cases suggest support by the original right holder for a product or issue which they found disagreeable.
Current law relating to the use of parody
There is no parody exception to copyright in the Copyright Designs and Patents Act 1988, but parodies can be made in the UK provided consent and/or licensing from the rights holders is obtained.
In addition, no permission is required from the rights holder if:
- the parody does not reproduce a substantial part part of the underlying copyright work
- its use falls within the fair dealing exception for criticism, review or news reporting,
- or in the particular case in question, the enforcement of copyright is contrary to public interest.
While some believe obtaining consent and/or a license is a minimal step that does not pose a threat to creative production and use of parodies, others, some of whom have had difficulties in obtaining permission from rights holders, would prefer to see the introduction of a system similar to that in the US where the 'fair use' doctrine is believed to create an environment more conducive to bolder risk taking.
The EU viewpoint
Under the Information Society Directive (2001/29/EC) (the "Directive"), Member States may provide for exceptions or limitations to copyright owners' exclusive right to permit reproduction of their works, including an exception for use for the purpose of caricature, parody or pastiche. A number of European countries including France, the Netherlands and Spain have expressly included such an exception under their national copyright law. The UK has not to date.
In line with the Berne Convention for the Protection of Literary and Artisitic Works this exception can only be applied "in certain cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder".
This provision, known as the "three-step test", is an obstacle for advertisers who want use parodies to promote products. This is because rights holders argue that using copyright works without paying for a licence deprives them of revenue it would otherwise have in the normal exploitation of the work. Any parody exception introduced in the UK would have to comply with this, meaning advertisers would be unlikely to be able to make use of it.
Why this matters:
In the Foreword to the Review, Prof Hargreves notes that there have been four reviews of IP in the last six years. Given the failure to implement the copyright exceptions recommended previously, there is some cynicism as to how much of what has been recommended might be enacted. Furthermore, due to three-step test applied to exceptions in the Directive, the position for advertisers is likely to remain unchanged.
Baroness Wilcox, Minister for IP has said the Government will publish its substantive response to the Review before the Parliamentary recess.