September 30, 2014

New Copyright Regulations come into force on 1 October 2014

From 1 October 2014, new regulations create an exception which will allow the use of part of a copyright work for the purposes of caricature, parody or pastiche as long as:

• The use is fair dealing and; 
• It does not compete commercially with the original copyright work.

The Intellectual Property Office’s guidance makes clear that “only minor uses are permitted” and gives the example that “the use of a few lines of a song for a parody sketch is likely to be considered fair, whereas use of a whole song would not be and would continue to require a licence“.

The Deckmyn Case clarifies the characteristics of a parody

The Court of Justice of the European Union handed its judgment on this case on 3 September 2014. The key principle spelled out by the CJEU is that the concept of parody “must be regarded as an autonomous concept of EU law and [must be] interpreted uniformly throughout the European Union“.

This case also clarifies that:

• The essential characteristics of parody are: 
• To evoke an existing work, while being noticeably different from it; 
• To constitute an expression of humour or mockery. 
• Parody does not have to: 
• Display an original character of its own; 
• Be attributable to a person other than the author of the original work. 
• Relate to the original work itself or mention the source of the parodied work.

Overall, the application of the exception must strike a fair balance between the rights of the original author and the freedom of expression of the person who has ‘used’ their work.

Some have suggested that the combination of these two developments may spark a flood of parodies of copyright works including books, songs and television programmes. However, it is clear that usage of a whole work will fall outside the exception, and it is also clear that in deciding whether a particular usage amounts to a parody the English courts will have to apply the EU tests, and this raises the entertaining prospect of judges having to decide whether a given usage is humorous. It is notable also that the new exception does not displace the moral rights of the original author, who could therefore take action if the usage amounts to derogatory treatment of the original work. These restrictions are likely to mean that the exception will not result in the floodgates being opened in practice.

The parody exception does legitimise the market for amateur and even professional parody works that clearly fall within the exception, and no doubt the boundaries of the exception will be keenly explored by some. Copyright owners whose works have been parodied, on the other hand, have the right to claim unfair dealing if the usage goes too far, and we anticipate a number of test cases as the new regime settles in.