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Taking the parody?

13 February 2015

In October last year, the time honoured British tradition of taking the mickey became enshrined within our legal system as the law was updated to include a parody exception to copyright infringement.

The exception allows authors of creative work to use another author’s copyright material without permission if done for the purpose of ‘caricature, parody or pastiche’, as long as the use constitutes 'fair dealing' and doesn’t convey a discriminatory message.

The new exception is part of the wider reform of intellectual property law sparked by the 2011 Hargreaves report, which criticised the UK's ability to support the innovation and economic growth encouraged by the proliferation of social media, online information sharing and user-generated content. It also aligns our system with the more flexible copyright laws of the US, Australia and France.

The aim is to provide relief for creators of parody, who will benefit from more opportunities for freedom of expression. The government believes that everyone will benefit from greater entertainment and social comment and that copyright owners are likely to benefit from an increase in sales due to improved publicity. In particular, they estimate that the exception could boost the entertainment market with £130-650m of growth per year (see page 6 of their impact assessment).

Comedians, artists and individuals are welcoming the new exception with open arms, excited that their creativity and freedom of expression will be unfettered by the red tape of costly licences from copyright owners or the risk of litigation.

However, in the legal world, lawyers are getting excited about the uncertainties left open by the new exception and views on its merits are divided. Despite the positive move towards openness, there are some failings: the rules fail to define parody, limit the exception to the blurred concept of 'fair dealing' and allow humour to be measured and quantified by those well-known connoisseurs of comedy, UK judges.

Whilst the European Court of Justice recently defined parody as 'evoking an existing work whilst being noticeably different in order to express humour or mockery', this fails to provide real certainty and there is still no UK definition. One issue is that the European definition treats the work as a whole, whilst copyright may exist in different parts of a work (e.g. the lyrics, music arrangement and choreography of a video) that are owned by different people. It also raises the following questions: how different is noticeably different and what constitutes humour or mockery? Is it acceptable to have mockery that is malicious rather than humorous?

Moving on to fair dealing, this UK concept depends on a balanced assessment of a number of different factors. The key factors are: the transformative extent of the work, the purpose and motive of the work as well as harm to the original author, proportionality of use and freedom of expression. Guidance tells us that only limited and moderate use of an original work is permitted. It also indicates that use that is commercially motivated or affects the original's commercial use will not be permitted. Advertisers in particular are warned against using the exception to insert copyright material into adverts. Despite the guidance, the concept is still unclear for many authors.

Moreover, the EU court made clear that UK judges must assess 'humour or mockery' and will therefore be the ultimate decision-makers as to whether or not potential parodies are funny enough to fall within the exception. Much as I enjoy the mental image of Lord Sumption in stitches whilst surfing YouTube, the reality is that comedy is incredibly subjective and, unfortunately, the UK judiciary is not yet representative enough of society to adequately assess the public's comedic sensibilities.

What is clear is that the ease of accessing and sharing content online is so pervasive that the new exception is likely to affect most of us in a number of ways. We all consume and produce material for different reasons, in different personal and professional capacities, using different methods. Contrast one YouTube user's protest song in response to Taylor Swift's trademarking of "this sick beat" with activist group PETA’s agenda-heavy website attack on Fortnum & Mason's foie gras policy and you begin to understand how wide a reach this exception can have. Even RPC has not escaped the tentacles of parody, with its branding campaign recently the subject of some tongue in cheek mimicry in the legal press.

Similarly, it appears the new exception has also had a varied impact on the commercial side of the creative industry. A friend at a media production company informs me that the effect is two-fold, as the risks of her company being both an infringer and a victim of copyright infringement have now increased significantly. She describes the cavalier approach now being taken to use of famous copyright phrases, lyrics or images. Equally, she is struggling more than ever to shut down some disturbing adult-content caricatures of the company’s successful children’s characters as the author seeks to rely on the new exception.

This industry perspective also reveals a more promising truth - uncertainty around the new exception will not prevent participants in the entertainment industry from putting out risky material. If potential breaches are litigated, answers to key questions could emerge far sooner than if this rule change had affected a more traditional sector. I certainly can't imagine law firms rushing to gamble with expensive lawsuits in order to express themselves more freely. Let's be grateful that we can look to the courage of creativity to test the boundaries of the parody exception and watch this space with justified anticipation.

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