IPO thoughts on copyright and the economic effects of parody
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The status of parody and related derivative works within the UK copyright framework lacks clarity and has been recommended for further policy study in two recent independent reviews: the Gowers Review of Intellectual Property in 2006 and the more recent Hargreaves Review of Intellectual Property and Growth published in 2011. This recent review highlights the dual importance of parodic works, both as a form of cultural expression and as a potential source of innovation and growth. A key recommendation of Hargreaves is for the UK to introduce a new fair dealing copyright exception for parody, caricature and pastiche. However, a shortage of empirical data renders policy intervention in this area difficult. The issue is complicated by the inherently creative nature of parody, ambiguity about its definition and the multiplicity of economic and legal approaches that may be applied.
The Oxford English Dictionary defines Parody as ‘an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect’. It further explains Caricature as ‘a grotesque usually comically exaggerated representation especially of a person; ridiculously poor imitation or version’; and Pastiche as ‘an artistic work in a style that imitates that of another work, artist, or period’. Other terms used for related cultural practices, and recognised under some copyright regimes, are Satire (‘the use of humour, irony, exaggeration, or ridicule to expose and criticise people’s stupidity or vices, particularly in the context of contemporary politics and other topical issues’) and Burlesque (‘an absurd or comically exaggerated imitation of something, especially in a literary or dramatic work’). In a 2008 Consultation Paper on copyright exceptions , the UK government recognised that whilst these terms may have different connotations and meanings, they “all include an element of imitation, and may incorporate, to a greater or lesser extent, elements of the original work. The whole point of these types of works is that they should ‘conjure up’ the original work upon which they are based”. Thus parodic treatment, almost by definition, involves a taking of substance, since, if the object of parody cannot be recognised, the parody fails. The doctrinal base of UK copyright law here poses a particular risk for the development of parodies. The general test for copyright infringement, under section 16(3) of the Copyright, Designs and Patents Act 1988 (hereinafter CDPA 1988) is the taking of the work “as a whole or any substantial part of it”. Increasingly the courts have found the meaning of ‘substantial part’ in the independent skill and labour of the original author, not in the use to which a work is put.
Many countries, both inside the European Union and in the common law tradition (Australia, Canada and USA), afford special treatment to parody (and related cultural practices, such as caricature, pastiche, satire and burlesque) within their copyright laws. Under EU Law, a specific copyright exception ‘for the purpose of caricature, parody or pastiche’ is possible within Article 5(3) of the 2001 Information Society Directive. The UK does not explicitly recognise parody as a copyright issue. In fact, the doctrinal base of UK copyright law poses a particular risk. The general test for copyright infringement, under section 16(3) of the Copyright, Designs and Patents Act 1988 (hereinafter CDPA 1988) is the taking of the work “as a whole or any substantial part of it”. Parodic treatment, almost by definition, involves a taking of substance, since, if the object of parody cannot be recognised,the parody fails.
The UK Courts only once considered a fair dealing defence in the context of parody (section 30(1) CDPA 1988), and the wider public interest defence (section 171(3) CDPA 1988) has yet to be invoked successfully. The Hargreaves Review (2011) recommended that ‘Government should firmly resist over-regulation of activities which do not prejudice the central objective of copyright, namely the provision of incentives to creators’. Hargreaves argued that using the full range of exceptions ‘will reduce transaction costs and stimulate new works in growing sectors of the creative economy’ [5.36]. The Review also asserted that, in the digital context, video parody specifically ‘encourages literacy in multimedia expressions in ways that are increasingly essential to the skills base of the economy’ [5.35]. This research assesses the policy options regarding the introduction of a parody exception in several steps.
This study was commissioned by the UK IPO to collect data on whether and how four copyright industries – music, film, publishing and software – have (or not) adopted private copying measures, and on whether the price of the products in the UK reflect a right to private copying.