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Parody Exception for Copyright Infringement Now in Force

Tuesday, 18 November 2014

On October 1st 2014, changes to UK intellectual property law came into force which permitted for the first time the use of copyrighted works for parody.

Previously, if a parodist had taken a substantial part of a copyrighted work, that individual could not rely upon any direct parody defence in order to avoid liability for copyright infringement. In practice, this meant that any person seeking to engage in this type of activity required a licence from the copyright owner.

The creative industries have long argued for a less restrictive framework – one which recognised parody both as a legitimate form of self-expression and as a phenomenon growing rapidly with the rise of the internet. These calls for change were embodied within the Hargreaves Review, an independent report recommending reforms to ensure that the UK’s intellectual property regulations remained adequate in the ‘internet age’.

The New Legal Framework for Parody and Copyright

The parody recommendation put forward by Professor Hargreaves has been effected by an amendment to the Copyright, Designs and Patents Act 1988. Section 30A(1) of the Act now prescribes that: ‘Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.’

This provision brings the law of the UK in line with EU member states such as Germany and France which recognise a parody exception. However, the amended legislation provides no definition of parody. This is potentially a source of uncertainty for infringement cases going forward but guidance issued by the UK government describes that, ‘in broad terms: parody imitates a work for humorous or satirical effect. It evokes an existing work while being noticeably different from it.’

Further, the European Court of Justice has recently made clear its conception of the term in Deckmyn v Vandersteen: ‘… the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery.’

Implications for Copyright and Parody in the UK

Parodists should be cautioned that the new legal protection is restricted to instances of fair dealing. In other words, a parody of a copyrighted work will not be exempt from a finding of infringement merely because it is a parody. The use of a copyrighted work must be fair.

The concept of fair dealing has traditionally been treated by the UK courts with some fluidity; whether or not a dealing is fair is determined on a case by case basis. However, patterns have emerged through case law.

It is likely that factors such as the amount and importance of the copyrighted work taken, the way in which the copyrighted work was obtained, and the extent to which the parody is intended to generate commercial benefit will play a part in court deliberations.

Comment

Guidance from the IPO has stressed that ‘minor uses’ of copyrighted works are the focus of the exemption. Overall, the introduction of the parody exception should not be seen as opening the floodgates for a surge of activity in the field. It is better viewed as a helpful mechanism, one which will assist the UK courts to strike a more reasonable balance between the interests of copyright owners on the one hand and those of freedom of expression on the other.

For specialist advice on the new parody exception to copyright infringement please contact Peter Gourri today by email PGourri@rollingsons.co.uk or telephone 0207 611 4848.

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