Who: UK Government
Where: UK
When: Regulations published 27 March 2014, in force1 June 2014
Law stated as at: 7 May 2014
What happened:
Under EU law, copyright exceptions are almost entirely restricted to non-commercial use and must fall within a list of categories including “caricature, parody or pastiche”. It is then down to individual countries within the EU to implement exceptions under these categories and UK law had, up until now, not provided exceptions for caricature, parody and pastiche.
In November 2010, the Government announced that there would be an independent review of the UK’s intellectual property laws, intended, in part, to encourage economic growth as the country prepared for advances in the digital age. The review was conducted by Professor Ian Hargreaves and published in May 2011. The review contained several suggestions for improving the UK’s handling of intellectual property rights but, amongst these, it suggested that the UK take advantage of the savings under EU law that would allow the use of copyright material in parody, pastiche or caricature.
On 27 March 2014, the UK Government issued draft regulations to carry through the recommendation.
The Copyright and Rights in Performance (Quotation and Parody) Regulations 2014 (“CQPR”) also expand on the exception for criticism and review to cover the use of copyright works in quotations.
These and other copyright law changes were intended to come into force on 1 June 2014, but when the House of Lords Secondary Scrutiny Committee were due to consider the measures in mid May, 2014, the CQPR were missing.
Initially it seemed that the parody and quotation changes would not see the light of day for the foreseeable future.
It now transpires, however, according to copyright minister Viscount Younger, that owing to various concerns around the drafting, the draft CQPRs will undergo further scrutiny and the 1 June in force date will very likely not be achieved.
But the minister made it clear that the government was still committed to making the changes. The current draft regulations can be found here.
Fair dealing and a substantial part
The CQPR amend the Copyright Designs and Patents Act 1988 to insert the following provision at 30A(1): “Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.”
What is fair dealing?
UK case law on existing fair dealing exceptions indicates that the court will take into account the extent to which the use made of the copyright material was necessary for the relevant purpose.
It is likely to be a question of balance. In producing a parody, there will invariably be a need to copy so much of the work as is necessary to allow the audience to perceive that a parody of the original work is taking place and it is likely that this will be a substantial part of the original work. Once a substantial part of the work has been copied there will then be a need to consider if the parody, in all the circumstances, constitutes fair dealing.
Only time will tell what the English courts will decide to deem ‘fair dealing’ in the context of this new exception and whether this is assessed in a qualitative or a quantative manner (although historically the UK courts tend to take a qualitative approach to these matters).
Other potential limitations to the exception
Additionally, we must wait and see how the exceptions interact with copyright owners’ moral rights and other laws.
The changes to copyright law will have no impact on the law of libel, slander or the regulation of UK moral rights, including the right of integrity. Notably, the rights granted to copyright owners under section 80 of the CDPA will remain in force. Section 80 provides that the authors of literary, dramatic, musical or artistic works, and the directors of films, are able to prevent their work from being subjected to derogatory treatment.
Why this matters:
So while the CQPR have yet to be finalised and implemented, let alone tested in the UK courts it seems clear that advertisers and others will not have carte blanche to use copyright material so long as they can argue that there is an element of parody, pastiche or caricature. In view of the limited nature of and uncertain application of the exception, most advertisers should continue to tread with caution when considering using parody, caricature or pastiche as a justification for using or adapting copyright material.
