The Freedom to Mock

By Grace Westcott | July 10, 2012 at 4:17 pm | One comment | Blog | Tags: Bill C-11, copyright, copyright infringement, national affairs

Copyright law in Canada has a complex history. On June 27, 2012 after four attempts in six years, the Copyright Modernization Act, became law. While there was widespread criticism of anti-circumvention measures introduced by Bill C-11, such as the use of digital locks to prevent copyright infringement, one relatively uncontroversial part of the Act allows  ‘fair use’ exceptions for education, satire or parody. We asked National Affairs Committee member Grace Westcott, a  commercial lawyer who specializes in copyright,  to consider the implications of these exceptions.

Parodize This!

Parody and satire may be the only thing that everybody agreed on in the protracted and generally acrimonious debates about updating copyright law.  The idea was to expand ‘fair dealing’ – the ways we’re free to use other people’s work in our own – to include uses for the purpose of parody and satire. And about bloody time. If there is anybody out there that thinks this is a bad thing, stand up and show yourselves. And now we have it: the Copyright Modernization Act, Bill C-11, received Royal Assent June 27, and will come into force in the next few months. Parodists, start your engines.

There’s always been an argument – a sound one – that parody and satire is a species of criticism for fair dealing purposes. Under fair dealing, using a work to criticize it was and is fair game; it’s an exception to copyright. But there is aging caselaw on the books that suggests that satire is not a defence to a charge of unauthorized use. The case is known as “The Michelin Man” or “Bibendum” case, in which the Michelin Tire Man logo was used for satirical purposes during a labour dispute.  It was found that the union’s use of the logo was infringing.  Even prior to the passage of the new Copyright Modernization Act, the precedential value of this aspect of the case was doubtful. Judicial attitudes at the Supreme Court of Canada have shifted firmly in favour of broader rights of fair dealing since.  The new Act clinches it.

With the inclusion of parody and satire rights in the Act, the job now is to inhabit them. We need to flex those satirical muscles and make sure there is lots of elbow room there. The court will ultimately define the scope of what is fair; meantime, we do.  It’s not carte blanche; the uses made of the underlying work have to be fair according to criteria laid down by the Supreme Court to. But the interpretation must be roomy where send-ups are concerned.

Already we’ve dodged a bullet by including both parody and satire. These things are conceptually different, but allowing one and excluding the other would be a sure-fire trap for the unwary.  The U.S. Supreme Court in the 1990s defined parody as a “literary style or artistic work that imitates the characteristic style of an author or work for comic effect or ridicule.”. It found parody to be a kind of comment or criticism and thus a fair use. “Satire” it defined as a work “in which prevalent follies or vices are assailed with ridicule”, generally directed at society at large and not necessarily at the underlying song or poster or novel.   The court held that using somebody else’s material “to avoid the drudgery in working up something fresh” is not fair use. It doesn’t take genius to see the creative chill that could be created by allowing one, parody or satire, without the other.

More scope for eager satirists with no commercial plans in mind is found in the new non-commercial user-generated content exception, an extraordinary provision that throws the door wide open to mash-ups, fan fiction, and  dancing-baby videos, with or without parody or satire. But that provision is a whole other discussion.

Grace Westcott is a commercial lawyer focusing on copyright, media and the cultural industries.

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