Is UK parody exception a parody of a parody exception?

The one and only Gigi ...

As reported by the IPKat, two days ago UK Government issued the draft regulations that, if approved by resolution of each House of the Parliament, will import new exceptions into UK copyright law with effect as of 1 June 2014.

Among other things, from that date also UK will finally have a specific exception for caricature, parody and pastiche. 

When this Kat arrived in the UK a few years ago to pursue her LLM studies she was frankly quite shocked [or, rather ... amused] to discover that a country famed for many beautiful things - including its weather and sense of humour - lacked an exception to copyright that would actually permit all those humour-related activities such as caricature, parody and pastiche. 

As explained in the Guidance for those using copyright works to create new content, parody imitates a work for humorous or satirical effect, commenting on the original work, its subject, author, style, or some other target. Pastiche is a musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment.

... And her attempted caricature 

The need to introduce a specific exception pursuant to Article 5(3)(k) of the InfoSoc Directive was acknowledged by the Hargreaves Review - and, prior to this although unsuccessfully, the Gowers Review - and then by UK Government. 

The latter observed that the InfoSoc Directive does not require to frame this exception within fair dealing. However, UK Government decided not to go for an "unlimited" [but no exception would be "unlimited", as it must comply with the three-step test ex Article 5(5) of the InfoSoc Directive] exception, but rather refer to the need for a fair dealing with the original work, so to minimise the potential harm to relevant copyright owners. 

Among other things, new Section 30A of the Copyright Designs and Patents Act 1988 ('CDPA') will provide that "[f]air dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work."

Also following an email exchange with Katfriend Robin Fry (DAC Beachcroft), the question that has arisen is: How far reaching will this new exception be? 

Not much, it would seem. 

The original
Hangover Part II poster

Dealing must be fair

First of all, the law is changing to allow people to use limited [fair] amounts of another’s material without the owner’s permission. The same Guidance mentioned above provides the following examples: a comedian may use a few lines from a film or song for a parody sketch; a cartoonist may reference a well known artwork or illustration for a caricature; an artist may use small fragments from a range of films to compose a larger pastiche artwork. 

Overall - still according to the Guidance - fair dealing only allows you to make use of a limited, moderate amount of someone else’s work. This means that any dealing that is not fair will still require a licence or permission from the copyright owner. [update: just to clarify: the issue of whether the defence may apply only arises when the taking has been substantial]

This might be fine for - say - a literary work, but how effective would be a parody of an artistic work that did not reproduce a substantial part - if not the whole - of it?

... and its LEGO version:
would the dealing be considered
fair under the new UK exception?

This Kat reverted to the most precious book in her own personal library, ie Patry on Fair Use, to see what the long-established US experience in addressing issues of parody & fair use tells us in this respect. She read that:

"Qualification for consideration as a parody does not address how much of the original the parodist may fairly appropriate ... However, in light of their need to ensure that the public recognizes that the original is being parodied, the courts have recognized that parodies 'frequently need [] to be more than a fleeting evocation of an original in order to make [their] humorous point.'" 

This great book further explains that what use of an original work can be considered fair is a fact-specific assessment. However, "[w]hile a parodist should not be entitled to make the best parody possible if that involves copying beyond an amount necessary for the public to appreciate the parody, the public also loses if only mediocre parodies can qualify as fair use." 

In the UK leading commentary Copinger & Skone on Copyright observes that, "[a]s parody depends upon recognition of the work being parodied, the substantial part requirement will sometimes be satisfied" [Section16(3) CDPA states that copyright is infringed by the doing of any act restricted by the copyright in relation to the work as a whole or any substantial part of it, either directly or indirectly].

At my signal, unleash integrity?

If we look at the corresponding exception under French law [which notoriously is also very fond of its moral rights], Article L 122-5 No 4 of the IP Code apodictically states that once a work has been divulged, the author cannot prevent "La parodie, le pastiche et la caricature, compte tenu des lois du genre." At first sight, this wording appears broader than that employed by the new UK exception.

A matter of integrity?

Furthermore, the changes to the CDPA will have no impact on the law or libel or slander, and will leave unaffected the regulation of UK moral rights, including the right of integrity.

The Deckmyn case:
the original work ...

Section 80 CDPA provides the author with the right not to have his/her work [done after 1 August 1989: see Sch 1, para 22(1)] subjected to derogatory treatment, ie any addition to, deletion from or alteration to or adaptation of the work (other than literary translations and musical arrangements or transcriptions), that amounts to distortion or mutilation of the work or is otherwise prejudicial to his/her honour or reputation.

More often than not, a parody/caricature/pastiche exception involves a treatment of an earlier work. And a parody/caricature/pastiche may be prejudicial to the honour or reputation of the (sensitive) author of the original work.  

So, could also moral rights - and Section 80 CDPA in particular - be used effectively by rightholders to prevent parodies, caricatures and pastiches they do not like? If so, this would be indeed the revenge of moral rights in the UK.

... and its spoof

The Deckmyn case

There is case currently pending before the Court of Justice of the European Union (CJEU) that is actually about the notion of parody in Article 5(3)(k) of the InfoSoc Directive. This is Case C-201/13 Deckmyn, a reference for a preliminary ruling from Belgium.

According to EU Law Radar, the Opinion of the Advocate General was expected for yesterday, but there is still no sign of it. The background issue is whether the right holders to the well-known [not to this Kat though] Spike and Suzy [Suske and Wiske] albums can stop a political party from circulating a picture that spoofs the cover of one of the books, while also reproducing several elements, including the title, the Spike and Suzy characters, and the use of the orange colour which was so typical for the covers to the Spike and Suzy stories. 

While waiting to hear from the CJEU, would a case like the Belgian one be considered fair dealing with the original work under the new UK exception? Would it be a treatment of the original work that is prejudicial to the honour or reputation of the original author? What do readers think?