In June of this year, we sent out an alert about the anticipated new UK copyright infringement exceptions. These exceptions were to be introduced based on the recommendations of the Hargreaves Review. Surprisingly, some of the exceptions had been dramatically pulled from the legislative slate at the last minute. However, the UK government has now upheld its subsequent promise to re-publish the statutory instruments for the infringement exceptions for (1) personal use, (2) parodies and (3) quotations, with new legislation on all three subjects that came into force on October 1, 2014.
Almost in parallel, a European ruling and an Advocate General opinion have helped to prepare for the arrival of the two statutory instruments, with commentary on (i) the scope of parody and (ii) in relation to personal use, the impact of copyright levies.
The New Legislation
Two new regulations have come into force, amending the Copyright, Designs and Patents Act 1988 (the “CDPA”) to include new exceptions for copyright infringement. The first – the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 (the “Quotation and Parody Regulations”) – extends the provisions for quotations of copyright-protected works (having previously only been available for criticism and review), and creates a new provision for parodies. The second regulation – the Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 (the “Personal Copies Regulations”) – concerns making copies of copyrighted works for personal use.
From October 1, 2014, the free quotation of copyright protected works is no longer limited to reporting current events or to works of criticism or review. The Quotation and Parody Regulations, inserted into the CDPA as section 30(1ZA), now permit quotation for any purpose, provided that:
- the work quoted has been made publicly available;
- the use of the quotations constitutes “fair dealing” with the work;
- the extent of a quotation is no more than is necessary for the purpose; and
- the quotation is accompanied by sufficient acknowledgment to the copyright owner (unless this is impossible).
The UK Intellectual Property Office has stated that this amendment will help to save costs on copyright clearance, support free expression and align UK law with the rest of Europe. However, as anticipated in our previous alert, the Quotation and Parody Regulations do not provide a definition of “quotation”, or guidance as to how extensive a “quotation” is allowed to be. This may place undue pressure on the meaning of “fair dealing” as UK courts seek to define the scope of the exception.
The new exception for parodies allows fair dealing with a work for the purposes of caricature, parody or pastiche (section 30A of the CDPA) and provides that fair dealing with a recording or performance (section 2A to Schedule 2 of the CDPA) for the purposes of parody does not infringe copyright conferred in the performance or recording. This change now means that the permission of the copyright holder will no longer have to be obtained, provided that the use of the original work is fair and proportionate. This is good news for British comedians and artists, it would seem, unless, of course, it is their work that is being parodied.
However, an EU court ruling on parodies in September 2014 has already placed some restrictions on the new legislation. In Deckmyn v Vandersteen C-201/13, the Court of Justice of the European Union (the “CJEU”) defined a parody as something that evokes an existing work while being noticeably different from it and constituting an expression of humour or mockery. The CJEU also stated that national courts must strike a balance between copyright owners’ interests and mimickers, and that copyright owners have a legitimate interest in disassociating their work from a parody, if the parody involves a discriminatory message.
This creates a whole new checklist for UK courts to consider, alongside the usual fair dealing test. Judges will have to also hold a view on whether the parody (i) strikes a fair balance, (ii) differs noticeably from the original work, and (iii) is sufficiently humorous. In particular, the last of these requirements may worry budding parodists, who could end up having to justify their comedy in front of a very different audience than first intended.