Book Review:The Parody Exception in Copyright Law

If readers where intrigued by the consideration of the festive election campaign using Love Actually as a potential parody work [Kat post from Alex here], then you may be interested to read this book dedicated to the parody exception, so here is a festive book review for you!

The Parody Exception in Copyright Law by Sabine Jacques, now Associate Professor at the University of East Anglia, is a comprehensive study of parody. It deliberates in detail the nature and development of parody, including freedom of expression and moral rights considerations.

This is The First Noel book in English to provide an in-depth study of the parody exception, comparing five jurisdictions to understand the meaning and scope of the defence and finding a fair balance for rightsholders and parodists by also considering moral rights and contract law. It draws profound conclusions on the state of parody across these jurisdictions as well as making novel and useful recommendations and proposals for how to improve it.

The book is presented in 7 chapters. The first chapter reviews the nature and definitions of parody, it opens by drawing the reader into the importance of parody and identifying that whilst parody exists as a copyright defence in the US, EU, Canada and Australia, the exact meaning remains nebulous. This first chapter, of course, considers the guidance set out by the CJEU in Deck the halls with bells of holly myn [Deckmyn Kat posts], which included two requirements; first that a parody must evoke an existing work whilst being noticeably different from it, and second, that is constitutes an expression of humour or mockery. In order to decipher the impact of this decision, Jacques explores the contours of parody – taken in its broad form to include satire, caricature and pastiche – looking at the wider historical context from Aristotle’s first use of parody in 335 BCE, through the decline of the genre and its rebirth in the twentieth century. The relationship between parody and other related concepts such as irony, satire, imitation and plagiarism are considered, before setting out the cultural theories of how parody might be defined and detailing the legal evolution of parody across the five jurisdictions. Comparing the different definitions of parody, Jacques identifies key differences such as the appraisal of humour.

Pet me like one of your French girls Jack
Image: duluoz cats

The second chapter then considers the legality of the parody exception in light of international and domestic copyright laws, scrutinising each of the five jurisdictions against the Berne Convention three-step test. This includes coverage of the first introduction of the exception under copyright law, setting out the underlying objectives and justifications of the need for a parody defence, as well as background on the origin, development and interpretation of the three-step test. This leads to the analysis of the compliance of the parody exceptions in the five jurisdictions with the three-step test, which reveals that santa claus is coming to town some reservations that one of the jurisdictions does not! [No spoilers here!]

The third chapter analyses the consequences of the nature and function of the parody exception in copyright law to understand how these influence the interpretation factors which are subsequently covered in the fourth chapter. It begins by exploring the legal nature of the exception concluding that it is an objective right. Jacques argued that fairness factors in favour of freedom of expression should be given greater weight when assessing whether or not the parody exception applies, and furthermore that based on the justifications supporting the parody exception, rights-holders should not be permitted to use contract law to allow their private interest to prevail over the public interests. Chapter four drills own on the requirements for parody as well as the fairness factors, such as humour, the absence of confusion, the amount reproduced, who’s naughty or nice, the motives of the parodist and the encroachment upon the right-holder’s economic rights. Ultimately, all the factors contribute ways to consider the application of parody, with no single factor being decisive. However, this leads Jacques to call into question the viability of harmonisation objectives under the EU InfoSoc Directive.

Chapter five recognises the increased importance of human rights in the balancing agenda of copyright law, as Jacques so articulately puts it:

In an increasingly complex haystack of copyright rules, the human rights framework usefully reinjects values into the system. It counterbalances economic analysis by emphasizing the cultural values ingrained in creative endeavours.

Kats Christmas Party
Image: Friends' Central School

The chapter focuses on how freedom of expression defines the parody exception in each of the jurisdictions. It demonstrates how parody can be both complementary to the earlier work as well as being creative and is deeply rooted in the fundamental value of freedom of expression. Therefore, Jacques proposes that the exception should include a balancing test based upon expressive values that would clarify the relationship between parody, copyright and freedom of expression as well as bolster the most wonderful time of the year safeguards in place for rightsholders. 

Last Christmas, having defined the scope of the parody exception, chapter seven provides a case study of the parody exception in the UK music industry, offering predictions of that the future might hold in this area of copyright as well as outlining additional avenues for promoting legal certainty moving forward. It considers the music business and the contracts involved, licensing issues, and the challenges created by technology such as Content ID that are not able to recognise a use as parody. As such, Jacques develops a compelling argument that:

The current attitude of blanket denial is likely to thwart the parody exception, and impinge upon the proper functioning of the internal market.

Overall, the book argues for a more holistic approach in the consideration of the parody exception, specifically determining the legality of the use with reference to freedom of expression. 

This book is the go-to book for Parody. It would be of interest to anyone curious about the copyright defence for parody, and a vital source for lawyers, practitioners, academics, and policy makers who are involved in the interpretation, application, or research of parody. It will also be of use to copyright and other stakeholders, including users who might benefit from the parody exception. 

Available from OUP: £75.00
Hardback
Published: 2019
304 Pages
234x156mm
ISBN: 9780198806936
Also available on Amazon in hardcover and ebook.