Although the US allows it and an EU Directive says member states can permit it if they wish, the UK has so far set its face against a “parody” defence to copyright infringement claims. Now, all that seems likely to change, but will this extend to ads? Omar Bucchioni reports.
Topic: Intellectual property
When: January 2008
Law stated as at: 18 January 2008
The Copyright Directive 2001/29/EC permits, but does not oblige, EU member states to allow a defence to copyright infringement claims based on “caricature, parody or pastiche.”
Up until now, although a parody defence is available in Belgium, France, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Spain and to some extent Italy, the UK has steadfastly refused to introduce such a saving.
All that now seems set to change following the publication in December 2006 of the Gowers review of UK intellectual property law. The Review set out a number of recommendations, which included :increasing the balance and flexibility of IP rights to allow individuals, businesses and institutions to use information and ideas in ways consistent with the digital age.
The IPO proposals
Following the results of the Gowers Review, the Intellectual Property Office has launched a consultation on various proposed reforms to UK copyright laws. What may be of particular interest to the marketing industry is the suggested creation of an exception to copyright infringement for use of a copyright work for the purpose of “caricature, parody or pastiche.”
Fair dealing precondition?
The IPO suggests that one way of introducing the new defence could be by way of extending the existing “fair dealing” defence. But this in itself raises a number of questions.
First, most of the current fair dealing exceptions only apply if there is “sufficient acknowledgment” of the underlying work and its author. Should this also apply to a new “fair dealing for the purposes of caricature, parody or pastiche” defence?
Here the IPO’s current thinking is that there should not be an “acknowledgement” requirement. Its reasoning is that such a rule could undercut the usefulness of the exemption, since authors are likely to prefer leaving it to their audience to make the link to the underlying work being parodied.
Definitions of “parody” etc required?
Another issue is whether the terms “caricature”, “parody” or “pastiche” should be further defined. The IPO’s present view is that given the availability of dictionary definitions, this will not be needed. An interesting line of argument which might see us lose all definitions of words in statutes.
A third issue raised will be of particular interest to advertisers. Here the IPO asks whether it might be better to have a general “parody” defence, as opposed to one which only applied if the parody of the underlying work amounted to “fair dealing.”
The advertising dimension
The IPO’s current belief is that restricting the carve-out to “fair dealing” is preferable, because “this may help to address concerns about advertising and endorsement.”
What are these concerns? Here we have a slight difficulty since the IPO descends into prose which we find a mite obscure. Here it is:
“For example, an unlimited exception could permit the use of a parody in a commercial context such as advertising, thereby permitting the endorsement of products which run counter to the commercial interests of the right holder in the underlying work being parodied. However, a commercially competing use of the copyright material may not be within a “fair dealing” exception.”
Hmmm. Our best guess at the intended gist of this is as follows.
Say an advertisement is comparative and knocks its competitor, reproducing the competitor’s copyright material in the process. This might involve showing the competitor’s own, copyright-protected advertisement, or its copyright-protected packaging. Such use could be argued to “run counter to the commercial interests” of the competitor whose copyright material was being copied.
If a parody defence could only apply in a “fair dealing” context, the cases show that if the use is “commercially competing”, which this would be, this will not qualify as “fair dealing” and the defence will not be available.
If on the other hand, the parody defence could apply whether or not the use of the underlying work was a “fair dealing”, such advertising use of a competitor’s copyright works would not be an infringement of copyright
Why this matters:
The introduction into UK law of a “parody” defence would be little short of a revolution in our intellectual property laws.
In the advertising context, some more clarity on the IPO’s thinking would be welcome, but on the face of it, this might open up all sorts of possibilities for the advertising use of pastiches of third party works, provided these were not competing with the product being advertised.
An example might be a soundtrack to a car commercial parodying existing music. The owners of the copyright in the music could not be said to be competing with the product being advertised, so given there was no “commercial competing” would this be a fair dealing so that no licence would be needed from the rights owners?
We suspect this is not the intention, but we anticipate some robust responses to the IO consultation on this point from the music industry, so watch this space. The deadline for feedback is 8 April 2008, with no clear timetable presently given for when any new reforms might be introduced. Let the “parody” debate begin!