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 Mendis. The 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?