Creative ad agencies are watching closely as after various false starts, a head of steam finally seems to be building behind the introduction of a right to create pastiches without infringing the underlying copyright. Tom Harding reports on the latest developments in a long saga.
Topic: "Inspired by" advertising
Who: The Intellectual Property Office (IPO)
When: December 2011
Law stated as at: 10 January 2012
As readers of marketinglaw.co.uk will no doubt be aware, back in May 2011 the Hargreaves Review of IP and Growth made several recommendations as to how the UK's IP system could be changed in order to promote and enhance growth. Some of these recommendations included changes to the copyright system to remove barriers to growth by way of additional exceptions to copyright infringement.
Off the back of this, the IPO has taken the Review on board, and published a consultation paper (Consultation on Copyright) setting out details of the changes it proposes to make to English copyright law to implement these. It is the Government's intention to respond to the Consultation and make formal proposals for legislation or other action in an 'IP and Growth White Paper' due in Spring 2012.
The Current Position
Currently, various potential exceptions to copyright infringement exist within the scope of the Information Society Directive (Copyright in the Information Society 2001/29/EC) that have not as yet been implemented under English law; these include including private copying, non-commercial research, archiving and parody.
The Hargreaves Review stated that “Government should firmly resist over-regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators. Government should deliver copyright exceptions at national level to realise all the opportunities within the EU framework, including format shifting, parody, non-commercial research, and library archiving … The Government should also legislate to ensure that these and other copyright exceptions are protected from override by contract.”
So, although a range of exceptions are being considered by the Consultation, it is the potential 'parody' exception that may be of most interest to creatives and ad agencies. Previously, UK case-law held that parodies could potentially escape copyright infringement if sufficiently original, but by the 1980s this parody defence had in effect been extinguished. Parodists can now only attempt to rely on other defences under the Copyright Act, such as the fair dealing defence of criticism and review, but this defence is limited in scope and most parodies are not likely to qualify.
To illustrate the problems parodists face, the case of 'Newport State of Mind' was cited in the Review. This was a music video parody based upon 'Empire State of Mind', a hit song by Jay-Z and Alicia Keys. It achieved huge success when posted on YouTube last year, however, EMI had it removed for copyright infringement. As the Consultation put it 'as well as limiting opportunities for creators of parodies, incidents like this can have a negative impact on the public’s trust of the copyright system'.
The Way Forward
The Consultation's initial recommendation is to provide a parody exception, with the aim of ensuring the beneficial effects that parodies can have on original copyright works (namely increased sales and reputation of the original) are realised, whilst keeping the negative impacts to a minimum (namely lost sales due to confusion and negative reputation). Its current thinking is that an extension of the existing 'fair dealing' defence may be the simplest and most flexible way to provide a useful exception while limiting potential negative impacts; broadly this exemption would allow some flexibility but also be limited so that (amongst other restrictions) commercially competing uses of material were not allowed. This was the approach taken by the Australian government when it introduced a parody exception in 2006 (a similar carve-out exists in the US as a 'fair use' exception, though this is more uncertain than proposals here).
However, the Government recognises that some creators will seek greater clarity as to the limits of a parody exception, so it does not rule out the introduction of other limitations if these can be clearly defined and support the overall objectives. The next stage of defining how any 'parody' or 'fair dealing' exception may be precisely framed therefore will come following the Consultation responses.
Why this matters:
If a 'parody' exception were introduced, it would undoubtedly free up the degree to which copyright works may be used without permission than is currently available; scope may exist for marketers and ad agencies to use copyright works in parodies without permission in viral campaigns and social media marketing for example. We therefore await the results of the Consultation in the Spring to see how this develops.