For years an EU Directive has allowed member states the option of not allowing copyright holders to sue for parodying their works.
Historically the UK has not taken up that option. Until now that is, as
Mark Smith reports following a recent Government announcement.
Topic: Intellectual Property
Who: UK Government
Where: UK
When: 20 December 2012
Law stated as at: 5 February 2013
What happened:
On 20 December 2012 the Government published the final part of its response to its recent consultation on the reform of UK copyright law. One of the most interesting aspects of the response is that it indicates that the Copyright, Designs and Patents Act 1988 will be amended to allow limited copying on a fair dealing basis for works of parody, caricature and pastiche.
Existing UK regime and approach overseas
Works of parody, caricature and pastiche are often either aimed at copyright works or make use of them.
The current UK copyright regime means that permission will generally be needed from relevant rights holders before using any copyright material to create such works. If permission is not obtained, either because it is not sought in the first place or has been declined, then there is a risk of legal action and potentially damages having to be paid.
The copyright laws of a number of other European countries, including France, Germany and the Netherlands, as well as key common law jurisdictions such as Canada, Australia and the US, already contain provisions which allow for this kind of use. The
consultation document therefore suggested that a failure to introduce a similar exception could leave the UK at a disadvantage on the world stage.
Responses to the consultation
The Government received many responses to the proposal contained in the consultation regarding the introduction of a new exception for
works of parody, caricature and pastiche, the vast majority of which were supportive.
A number of respondents mentioned the fact that they saw this particular form of comedy as important and something to be enjoyed, while others argued that the freedom to make critical works of parody was a matter of freedom of expression. Parodists highlighted difficulties in obtaining permissions and consequent issues monetising some of their work. However, some quarters raised concerns over a loss of licensing revenue were a new exception to be introduced.
Others were concerned that an exception would conflict with a creator’s moral right to object to derogatory treatment of their work.
A new exception
Ultimately the Government has decided to legislate to allow limited copying on a fair dealing basis for parody, caricature and pastiche,
while leaving the existing moral rights regime unchanged.
The requirement that any use of a work be “fair dealing” is intended to ensure that the exception is not misused. According to the Government’s impact assessment, this means that the parody work should not be substitutable for the original work nor damage its commercial exploitation.
Hence, the exception will allow a work of parody to reference copyright works and use them as source material, but is unlikely to
allow the use of entire unchanged works.
An example is given of YouTube videos where the visuals have been
changed, but the musical track has not – this would be unlikely to be
considered fair dealing under the new rules.
Further, the existing moral rights regime should mean that creators of copyright works will be protected from damage to their reputation
or image through the use of works for parody, caricature or pastiche.
The Government intends to make the various changes to existing copyright laws via secondary legislation, which will likely come into
force in October 2013.
Why this matters?
The new exception to the UK copyright regime for works of parody, caricature and pastiche will finally bring UK laws into line with those
in a number of other countries. It will surely be of interest to advertisers and marketers, who would have more freedom to create parodies of popular TV shows, music tracks and even the ads of
competing brands, when putting together their campaigns. They will still need to exercise care, however, to ensure the usage comes within “fair dealing.”
The UK is a recognised leader in the advertising sphere, so here’s hoping that the new exception will lead to even more creative (and
amusing) ads!
