Big leeks will inspire you, but who gets the credit?

Big leeks will inspire you, but who gets the credit?

“I’m the new Sinatra”, claims Jay-Z in Empire State of Mind, his own homage to New York, New York. Meanwhile, in a small Welsh town, lights turn into leeks in their very own Newport State of Mind – one that went viral with two million views in two weeks.

So where does copyright come into this? According to the UK Government’s Consultation on Copyright, this needs to be addressed with a new exception for parody, caricature and pastiche. And this isn’t the only “ripping” going on – alongside that, the Government is proposing a copyright exception that would allow private copying of purchased content.

Both exceptions are presented by the Government as, in effect, legitimising accepted behaviour.  Both, however, beg the same question – a fair trade-off between incentives for creators and users’ freedom to consume cultural works.  In this context, the Government’s assumptions deserve careful scrutiny.

The Consultation

The Government published the Consultation on 14 December 2011.  It sets out how the Government proposes to tackle perceived problems with the copyright system, including the implementation of various recommendations adopted from Professor Hargreaves’ report of May 2011.  The consultation process runs for 14 weeks, concluding on 21 March 2012, after which the Government intends to make formal proposals in an IP and Growth White Paper in spring 2012. 

Parody, caricature and pastiche

Current position

There has never been a statutory exception for these under UK law, unlike in other countries such as France, the Netherlands and Australia.  As a rule of thumb, “what is worth copying is worth protecting”.[i]  The current “fair dealing” defences under of the Copyright, Designs and Patents Act 1988 (CDPA) are limited to defined purposes (i.e. research and private study, criticism and review, and reporting current events).[ii]  Nor is there a common-law defence, in contrast to US law, for example, under which the doctrine of “fair use” can protect transformative derivative works.  Under UK law, the usual test for substantial copying applies, and comedic intent is not a relevant consideration.[iii]  Since parody depends on recognition of the original work, parody often involves substantial taking.

Government proposal

The Government proposes a new “fair dealing” exception.  The legislation would not, however, define the terms “parody”, “caricature” or “pastiche”: that would be left to the courts.  While citing the definitions given in the Oxford English Dictionary, the Government does not suggest that those would be definitive.  Instead, it invites responses on three possible limitations, which would involve restricting the exception to works that:

(a)           are made for comic or satirical effect;

(b)           are distinct enough from the original not to be a substitute for it in economic terms; and/or

(c)           do not unfairly damage the reputation of the original work.

The Government does not propose to limit an author’s moral rights.  So the exception would co-exist with the original author’s “integrity right” under section 80 of the CDPA, i.e. the right to object to derogatory treatment, which applies to any use that amounts to “distortion or mutilation” of the work, or is “otherwise prejudicial to the honour or reputation” of its creator – a right that does not apply to all cases of parody.

The Government’s “case for change”

The Government states its case for a change in the law, first citing the time and expense involved in having to obtain clearances from the owners of underlying content, as well as a perceived competitive disadvantage with comedians based in other countries that have parody exceptions.  Curiously, its own example, the Newport State of Mind parody belies the Government’s alleged “stifling effect”: although the music publisher had the offending video taken down from YouTube, the video remained “both visible and popular”, by the Government’s own admission.  In other words, there seems little evidence to suggest that amateur parodists or user of social media are deterred by the current state of the law.

The real question, it seems, is whether there is a deterrent effect on professional production of parodies, and the Government does not cite any specific evidence on the point, other than an assumption that producers on a limited budget and a tight lead time are less likely to produce parodies under the current state of the law.  This perception sits awkwardly with the Government’s praise of the “long and vibrant tradition” of British comedy and the advantage taken of “new forms of expression”.

The Government acknowledges a potential for lost sales of the original work, due to (a) confusion and competition with the original work and/or (b) negative reputational effects, without making a specific proposal on how the negative impact of the exception could be minimised – other than pointing out the potential for increased sales through heightened exposure, along with the limiting effect of the original authors’ integrity rights. 

But those beneficial effects could be cold comfort to an original author.  Often as not, parodies do not involve substitutional sales (as the different versions serve such different purposes), but the original author may well have a legitimate expectation of participating in the additional sales. In a musical parody, for example, the original lyricist and composer will want, at the very least, to be a co-writer of the parody.  That is how it works at present: “Weird Al” Jankovic has to share the music publishing rights in “Eat It” with Michael Jackson.  It is unclear whether the new exception is intended to deprive the original author of a share of the copyright in a derivative work.  That could be unjust in many cases, as a successful parody relies so heavily on recognition of the original.  If that is not what the Government means, there will still need to be an assessment of co-authorship, and the scope of the exception could end up being so narrow as to tend to meaninglessness.

The “case for change” also focuses almost exclusively on parody.  Caricatures and pastiches are importantly different species of comedy.  A true caricature will generally qualify as an original work under existing copyright law: grotesque exaggerations will minimise the quantity and quality of literal copying.  A true pastiche is a matter of style, not substance.  There will be no question of copyright infringement, and copying of genre (reverent or irreverent) is an inherent part of the creative process across all arts.  Pastiches are also of particular relevance to the advertising industry, which remains an important source of revenue to creators of original works (even if music is adapted with permission or replayed to get around master clearances).  If the law on either caricature or pastiche is to change, there is a case yet to be made.

Another loose assumption is the perception of a “chilling effect” on the public’s freedom of expression, especially in everyday social networking, in which parody is an important means of expressing a point of view.  This seems to disregard the existing public-interest defence: the enforcement of copyright can be prevented or restricted on grounds of public interest under the CDPA.[iv]  Quite aside from rights-owners’ usual forbearance from suing in such cases (whether on altruistic grounds or through fears of negative PR), it is open to the courts to develop public-policy defences, especially in light of consumers’ rights to freedom of expression and communication.[v]

Finally, it is doubtful that the exception would deliver a regime of clearly defined scope.  The practical limits of the exception would be left to the courts to define.  It is hard to imagine that the courts could avoid treating the precise status of a derivative work as a question of fact in each case.  In other words, the exception would not necessarily supplant the “legal grey zone” criticised by Consumer Focus.[vi]  As Dickens’ Mr Bumble muttered, “the law is an ass”, but this is an area where nobody can pin the tail on the donkey: it is a moving target.

Private copying

Here, the Government is ostensibly on safer ground.

Current position

It is a popular misconception that copying from one device to another (say, CD to iPod) is legal.  It isn’t, unless authorised by rights-holders – and the practice is more often tolerated than licensed.  A 2010 Consumer Focus survey found that only 15% of consumers knew that copying a CD they had bought onto an MP3 player is illegal.  

Under Article 2 of the Copyright Directive,[vii] the UK legislature can introduce a private-copying exception for copies on any medium made by a natural person for private use, and for purposes that are neither directly nor indirectly commercial.  There is a condition: that the rights-holders receive “fair compensation” (taking account of the application or non-application of technological protection measures to the works concerned).  In EU countries with widely drawn private-copying exceptions, this compensation is achieved by means of a levy on media and devices that enable copying.

Government proposal

The proposed exception would allow copying of any type of copyright work (including music, films, photographs and books) to any type of device or medium, solely for private, non-commercial use.  The exception would not permit copying of content that the copier does not own, and so would not allow copying of works lent by friends or borrowed from a library.  Nor would it permit copying within a private or domestic sphere (such as a family or household), although the Government is consulting on that option.

The Government has invited views on alternative approaches, such as a more widely drawn exception, but specifically limited so that “it only applies when harm caused by copying is minimal”, allowing the courts to apply the law flexibly as a question of fact in each case.  It is also consulting on whether such a limitation should be introduced in any event.

The Government does not intend to introduce any copyright levy on electronic devices or blank media: it intends to bypass the need for a levy through keeping any harm caused by the exception to copyright owners to a bare minimum.

The Government’s “case for change”

Aside from the evident benefits to consumers, the Government expects the exception to boost industrial innovation in the way achieved by the introduction in the 1980s of a technology-neutral exception for “time-shifting” of broadcasts under section 70 of the CDPA.  A case in point for the Government is the potential for provision of private cloud services for remote storage via online access, which in its view should not require payment of licence fees to copyright owners (in the absence of value-added services based on the provision of content).

The Government appears to see little harm to copyright owners in the status quo, citing, for instance, the UK record labels’ “recognition of consumer behaviour” and widespread abandonment of digital rights management (DRM) protection against copying of digital files (while noting elsewhere that most commercially available DVDs and eBooks remain DRM-free).

In analysing these “trends” the Government concludes that producers expect content to be copied between devices, and that “the ability to do so is priced in to the purchase price” of the content.  It also contends that: “… if [the exception] encourages new private uses, such as those that may be enabled by new services, then consumers … may be prepared to pay more for content or purchase more content as a result.  Either way, producers of content should be able to charge for this use at the point of sale by factoring it in to the price of content.”

This is a surprising assumption, and the Government does not support it with any evidence.  Turning a blind eye to current consumer behaviour cannot fairly be interpreted as an active endorsement of pricing structures – especially by record labels in a market in which sales of recorded music have dropped dramatically over the past decade, putting downward pressure on pricing and seeming unlikely to allow headroom for increases in pricing for the foreseeable future.  For instance, while UK Music (representing UK music organisations) has publicly supported the exception as a “long overdue reform”, they have not commented on the question of fair compensation.

Rejection of copyright levy

In rejecting a levy, the Government notes: (a) the inconsistencies between media, devices and/or rates in the levy systems across Europe; (b) the cost to consumers through higher prices of the copying media and devices (on top of the price of purchase of the first copy); (c) the potential for distortion of the markets; and (d) the possibility that the media/devices may only be used to copy the consumer’s own content (e.g. a home video).

While those observations are pertinent, there is no consultation on the point, a decision which rests heavily on the Government’s assumption that private copying is actually private.  The reality is different: copies made on iTunes and other platforms are not just made for private use, but are commonly shared within the domestic sphere and often outside it too.  UK Music’s academic survey (conducted in 2009) found that 86% of respondents had copied a CD for a friend, and 57% had copied a friend’s entire music library.  It is an even less safe assumption that this sort of circulation is (or could be) factored fully into the purchase price, especially where digital copying allows multiple parallel use (not just sequential use, like a hard copy of a book).

That is by no means to suggest that a levy is necessarily the right way of achieving fair compensation for copyright owners.  The content market has already been distorted in so many ways by the pace of technological and social change that fairness will require a more holistic view than an isolated assessment of a levy.  Any private-copying exception that is introduced should be implemented alongside other measures to protect fair rewards to copyright owners, such as the stimulation of attractive legitimate content services, reasonable controls on online piracy and consumer education initiatives, all of which could take some time before a fair balance between owners’ and users’ interests can be achieved.  In any event, it seems impossible that a fixed view on fair compensation can be taken at this stage, in the context of a rapidly evolving market.

Conclusions

As Ernest Hemingway once remarked, “the greater the work … the easier the parody”.  The bathos of Newport just wouldn’t be funny without the bling of Jay-Z’s New York.  But both the parodist and the original writer get the credit as things stand.  A split of ownership is negotiated as a commercial matter, and the law on parody (such as it is) is rarely invoked before the courts.  Any attempt by the Government to recalibrate the balance should not lose sight of this.

Equally, the greater the work, the more that people will want to copy it.  While, in practice, the horse has long bolted in terms of private (and even social) copying, it seems an unsafe assumption that content is priced to reflect that reality, especially when content owners are competing with free content on such a massive scale.  In a healthier legitimate content market, perhaps the price could in effect be passed onto the consumer.  In the current climate, however, it is hardly self-evident that creators of content should bear all of that pricing burden, rather than (say) sharing it with suppliers of devices and providers of storage services.  In making its ultimate “case for change”, the Government should practise what it preaches by formulating policy from economic evidence.

Whatever the outcome, the burghers of Newport will continue to celebrate chips, cheese and curry.  In terms of expression, that’s their privilege.  But need that be at the expense of the old Sinatra?

Ed Baden-Powell and Jessica Woodhead 

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Article written for Entertainment Law Review.

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