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Sunday, 17 March 2013

IPO's parody report: towards a new exception in UK copyright law?


As Jeremy wrote on The 1709 Blog a couple of days ago, the UK Intellectual Property Office (IPO) recently published reports on "Parody and Pastiche" and "Private Copying".

While the latter will be dealt with in a separate post [just to show that - among other things - IP stories can be good material also for a thrilling TV series], the report on "Parody and Pastiche" focuses on the economic, cultural and legal effects of parody and helped inform the development of impact assessments [IPO Impact Assessment on parody here] on copyright exceptions and the introduction of the Enterprise and Regulatory Reform Bill (which is currently being discussed in the House of Lords -- see earlier Kat posts here, here and here).

To be more precise, in relation to the broader topic of parody, the IPO had commissioned three ad hoc studies, concerning:
  •         the impact of parody on the exploitation of copyright works by means of an empirical study of music video content on YouTube,
  •          a comparative analysis of the treatment of parody in seven jurisdictions, and
  •          its economic effects, respectively.

The objective was to evaluate policy options in the implementation of the Hargreaves Review of Intellectual Property & Growth. As humour-loving readers will remember, among other things, the Review recommended (similarly to what had been done also by the Gowers Review in 2006) the introduction of a specific exception for parody and pastiche into UK copyright.

Study I - Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube

Dr Kris Erickson prepared this study, which presents new empirical data about music video parodies on YouTube. A shortage of empirical data is said to render policy intervention in the area of parody difficult, and 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. 
A leaked picture of Merpel while busy
choosing an appropriately ridiculous
outfit for her own
Harlem Shake video 
By analysing a sample of 8299 user-generated music video parodies relating to the top-100 charting music singles in the UK for the year 2011, the study concludes by holding that:

 [In case you were still wondering] Parody is a significant consumer activity: on average, there are 24 user-generated parodies available for each original video of a charting single.
• There is no evidence for economic damage to rightsholders through substitution: the presence of parody content is correlated with, and predicts larger audiences for original music videos [although not part of this study, a good example of this might be the Harlem Shake phenomenon. Despite its related copyright issues, even Merpel and the Kats are rumoured to be about to release their own Harlem Shake video].
• The potential for reputational harm in the observed sample is limited: only 1.5% of all parodies sampled took a directly negative stance, discouraging viewers from commercially supporting the original.
• Observed creative contributions were considerable: in 78% of all cases, the parodist appeared on camera (also diminishing the possibility of confusion).
• There exists a small but growing market for skilled user-generated content: parody videos located in this study generated up to £2 million in revenue for Google in 2011, a portion of which was shared with the creators.

Some people prefer Earl Grey
over Christian Grey
Study II - The Treatment of Parodies under Copyright Law in Seven Jurisdictions - A Comparative Review of the Underlying Principles

The authors of this second study, which intends to provide a comparative review of the law of parody in seven jurisdictions [these being - rather unsurprisingly - Australia, Canada, France, Germany, Netherlands, UK, and USA] are Dr Kris Erickson, Prof Martin Kretschmer and Dr Dinusha MendisThe underlying principles (including economic and constitutional) governing divergent legal approaches to parodies in seven jurisdictions that have implemented or are considering introducing a specific exceptions are identified, and a list of policy options is presented.
Following the review of seven jurisdictions, the study indicates the criteria developed by legislators and judicial interpretation for assessing permitted and not-permitted parodic uses of copyright works. These, ranging from the most restrictive criteria to the most permissive ones, are the following:
  •          Criterion 1: Parody must be non-commercial;
  •          Criterion 2: Parody must not have an adverse effect on the market for the original;
  •          Criterion 3: Parody must not use more of the original than necessary;
  •          Criterion 4: Parody must add some significant new creation;
  •          Criterion 5: Parody must have humorous or critical intention;
  •          Criterion 6: Parody must be directed at the work used (‘target’);
  •          Criterion 7: Parody must not harm the personality rights of the creator of the original work;
  •          Criterion 8: Parody must be sanctioned under the rules of social custom;
  •          Criterion 9: Parody must acknowledge source of original work.

Study III - Copyright and the Economic Effects of Parody: An Empirical Study of Music Videos on the YouTube Platform and an Assessment of the Regulatory Options

The authors of this study are once again Erickson, Kretschmer and Mendis. This document provides a synthesis of the legal analysis and the empirical data presented in the other two studies. In particular, each of the policy options identified in Study II is examined for its likely impact on the empirical sample gathered in Study I. 
This final study presents key recommendations for the introduction of an exception for parody into UK law. In particular: 
Next year's Oscar sensation
  • Recommendation 1: Avoid distinguishing between genres (satire, burlesque, etc.). It is recommended that any policy be crafted in such a way as to minimise the need for subjective judgments about what constitutes humoristic or target parody, as opposed to other types of work. A definition focused on critique, without specifying the nature or direction of such, may be more flexible. Similarly, a focus on the addition of new intellectual labour, such as the US provision for ‘transformative use’ could be an adaptable framework. 
  • Recommendation 2: In order to realise the benefits of economic growth, allow commercial parody. The primary argument made by Hargreaves was that parody should be permitted on the grounds that it represents a new potential market for UK content creators. Providing a legal framework which allows amateurs and small producers to monetise their intellectual contributions will likely result in an increase in new works. Opening additional pathways to monetising work in digital environments such as YouTube may promote digital literacy among young people in the UK and offer new entryways into the digital and creative economy for small-scale producers and skilled amateurs. 
  • Recommendation 3: If an economic test is introduced, focus on incentive rationale and substitution effects. 
  • Recommendation 4: Consider responsiveness to changing cultural and technological circumstances.
While this Kat welcomes these recommendations (including the possibility of commercial parodies), she wonders whether and how the introduction of a specific exception for parody is likely affect the scope of moral rights, eg right of integrity. When in December last HM Government released its response to consultation on copyright exceptions, it announced its intention to legislate to allow limited copying on a fair dealing basis for parody, caricature and pastiche, while leaving the existing moral rights regime unchanged. Pursuant to section 80 of the CDPA 1988, it seems that where a parody (which might be, if the these studies' recommendations are followed, also a commercial one) does not involve a treatment of the earlier work, no moral right claim might arise. So one of the questions might be: is the scope of moral rights likely to become even narrower in the UK (at least from a continental perspective) after the introduction of a parody exception, which is such as to permit also commercial uses?

4 comments:

Anonymous said...

"...only 1.5% of all parodies sampled took a directly negative stance, discouraging viewers from commercially supporting the original"

In other words, they are not parodies at all, but simply derivative works that use an element of the original material. From which the rightsholder is entitled to some small remuneration.


"In order to realise the benefits of economic growth, allow commercial parody"

Commercial parody is already allowed - and evidently flourishing. Yet no figure is advanced by Erickson, Kretschmer et al for the economic growth benefits of a change. The "economic impact" contains no economics.

"may promote digital literacy among young people"

We need to change copyright law so young people become digital literate? So they know what a parody is? Or so they use computers?

Wow. Just, wow.


GangnamStyle said...

"...only 1.5% of all parodies sampled took a directly negative stance, discouraging viewers from commercially supporting the original"

Not all parody is critical of the original work. Some parody uses an original work as a weapon to highlight a third party or social issue.


"Commercial parody is already allowed - and evidently flourishing. "

Why limit the production of new works to cases when the parodist can convince a rightsholder to grant a license? As YouTube becomes a more important source of revenue for small media producers, the line between commercial and noncommercial is going to be blurred anyway.


"may promote digital literacy among young people"


The rate of parody creation and consumption is higher in the USA, where parody is enabled under fair use. Does the UK want to stifle the creativity of its young people and limit its competitiveness in the global digital marketplace?

Howard Knopf said...

In Canada, Parliament recently enacted as very simple amendment so that s. 29 of the Canadian Copyright Act now reads as follows:

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Yes – they added the words “parody or satire”. They just did it – with no further ado or qualification.

This, of course, is subject to the important six factors set out in the landmark fair dealing decision (Canada’s copyright equivalent of your Magna Carta) in CCH v. LSUC, in which our Supreme Court said in 2004:

[53] …Drawing on the decision in Hubbard, supra, as well as the doctrine of fair use in the United States, he proposed that the following factors be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.
See: http://bit.ly/YiFPwQ

So, Merpel and friends. You come from the land of Swift, Shaw, Gilbert & Sullivan, Charlie Chaplin, Punch, Private Eye, George Orwell, Anna Russell (though she fled to Canada, maybe for the waters?), Dudley Moore, Peter Sellers, Lennon & McCartney etc.
Go for both satire and parody. Then, you won’t have to agonize over the difference. Both are beneficial to mental health and creativity, if done fairly. Indeed, if done fairly, no authors, composers or publishers will be harmed.

We Canucks also now have a user generated content exception in our new legislation, so that mothers of dancing babies can be reasonably confident of not getting sued by Prince, his publishers, or others devoid of humour and/or humanity.

Do you seriously want a humour and creativity gap between the UK and her former colonies, the USA and Canada? I leave my friends in Oz and Kiwi friends to defend themselves… Some of them, I know, are indeed quite capable of humour. Especially when it comes to the Commonwealth.

Best regards,
Howard

Birgit Clark said...

In some countries, such as Germany, "parody and satire" are 'part' of freedom of speech, or freedom of art on the level of constitutionally enshrined human rights, therefore there is no way around them.

Thus, the situation is not quite the same. Having said that, why over-complicate things? The Canadian approach is quite refreshing in its 'simplicity'.

Some of the criteria listed seems a little over the top, I agree with the earlier posts. Then again, you need a starting point for a discussion....

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