Whose line is it anyway? – new exceptions for parody and private copying

Sailing close to the breeze has always been part of the art for creators. Not that copying need be disrespectful to the source material: indeed, imitation is the sincerest form of flattery.

So whose line is it when you “quote” from a work?  Under current UK law, it is simply a question of fact: the quantity and quality of copying is all that counts.  No account is taken of the reproducer’s intentions.  For instance, there is no doctrine of “fair use” for transformative works.

The UK Government wants to change that as part of its planned overhaul of copyright exceptions.  As declared in December 2012 in its paper Modernising Copyright,[1] it intends to introduce a new “fair dealing” exception for parody, caricature and pastiche.  Among other exceptions to be introduced at the same time is a limited exception for private copying between devices/media.  The measures are intended to come into force in October 2013.

While both exceptions address different issues, there are important similarities.  The public tend to think that either activity is fair enough.  The Government’s aim for private copying is “to align copyright law with reasonable and widespread consumer behaviour that causes little or no harm to copyright owners”.  Its attitude to parody is similar.  In both cases, however, there is a fine line to be drawn between fair dealing by users and creators’ economic rights. 

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, Germany, the Netherlands, Canada and Australia.  While a parody exception is permissible under the Copyright Directive,[2] the current “fair dealing” defences under the Copyright, Designs and Patents Act 1988 (CDPA) are limited to certain defined purposes (e.g. research and private study, criticism and review, and reporting current events).[3]  In contrast to US law, for example, there is no common-law doctrine of “fair use” to protect transformative works. 

So under UK law, the usual test for substantial copying applies.  Since parody depends on recognition of the original work, parody often involves substantial taking.  Go too far, and a sound-alike tips over into plagiarism.  Copy the style without the substance, and there is no copying at all, at least in copyright terms.  Accordingly, in many cases, permission is required from the relevant rights-holder before a copyright work can be used to create a parody.  

Government proposal – copyright

In Modernising Copyright, the Government responded to its consultation on reforming copyright exceptions,[4] and confirmed that it proposes to introduce a “fair dealing” exception for parody, caricature and pastiche.  It expects to issue draft regulations for technical review in the next few months.

The Government cites a number of reasons for introducing the new exception.  It goes as far as to say that: “the UK may be at a disadvantage on the world stage and … British broadcasters, production companies, and creators who produce commercially valuable parody works may be inhibited from making the most of their potential.”[5]  The Government aims, however, “to find a balance between the interests of rights holders, creators, consumers and users”.[6]

In the original consultation document, the Government clarified that the legislation would not define the terms “parody”, “caricature” and “pastiche”, which will apparently bear their ordinary meanings.  The response document confirms that “fair dealing” will bear its usual meaning at common law, under the objective test set out in Hyde Park Residence Ltd v Yelland.[7]  The Government highlights three key factors in deciding whether a particular dealing with a work is “fair”:

• the degree to which a use competes with the owner’s exploitation of the original work – i.e. if “a use of a work acts as a substitute for it, and thus affects its value, then it is less likely to be fair”, although “this consideration does not rule out fair dealing for a commercial purpose”;
• the extent of the use, and the importance of what has been taken – e.g. a “useful test may be whether it was necessary to use the amount taken for the relevant purpose”, although “this does not rule out copying of a whole work, but will usually mean only part of a work may be copied”; and
• whether a work has been published or not – i.e. if it has “not been published, then dealing with it is unlikely to be fair”.[8]

The response document explains that the existence of a licence is also an important factor.  If a use “competes with a licensed use and so potentially harms rights holders, it is less likely to be fair dealing, particularly if a licence is easily available on reasonable and proportionate terms”.

These factors are useful in providing some comfort to copyright owners that they will not lose out unduly to substitutional sales, substantial copying (whether in terms of quantity or quality), and/or exploitation of previously unreleased content, and that collecting societies will not suddenly be deprived of a mandate to license previously licensable activities.  Equally, the provisos and qualifications will give them significant cause for concern: a commercial use of a whole work is conceivably permissible, and without a licence (whether direct or via a collecting society). 

This runs against the grain of the current practice under which the creator of the original work can negotiate to be treated as a co-author of a derivative work.  It is far from clear how far that practice will work under the new regime.  Nor will a parodist be clear whether a given parody requires a licence; and despite the Government’s best intentions, this could increase the administrative burden by effectively forcing a parodist to take specific legal advice on whether the parody is licensable.  In the area of advertising, musical “style-alikes” are commonplace, but underpinned by a relatively well understood system of expert evidence from experienced musicologists to help in identifying instances of substantial copying (before or during a legal action).  That whole system will now be thrown into confusion, and it could take years before the new parameters are understood – potentially at considerable expense in the meantime to music publishers and brands.

Government proposal – moral rights

The exception will not alter an author’s moral rights. In particular, the exception will 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.  The Government suggests that respect for moral rights could even be a factor when considering whether an act is deemed to be fair dealing.

This is, however, another area of obscurity.  The Government’s reading of moral rights sits uneasily with the controversial decision of the Patents County Court in the House of Harlot case,[9] in which it was found that, although there was no mutilation of the author’s work and use was not prejudicial to the honour or reputation of the author, treatment of the author’s work was nevertheless derogatory. If simply distorting a work amounts to derogatory treatment, almost any parody could amount to derogatory treatment.  Perhaps the wording of the legislation will assist with clarifying the intended application of moral rights in this context.

Caricatures and pastiches

The response document does not go into any detail on these types of derivative work.  They are importantly different species of comedy from parody.  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).  Presumably the draft regulations will clarify the position for these types of work, but both will throw existing case law into doubt.

Private copying

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,[10] 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 will allow an individual to copy any type of copyright work (including music, films, photographs and books) to any type of device or medium, solely for that individual’s private, non-commercial use.  For example, an individual could buy a copy of an album in CD format and copy it onto that individual’s own PC, iPod and/or phone.

The exception will not permit copying of content that the copier does not lawfully own, and so will not allow copying of works lent by friends or borrowed from a library.  Nor will it permit copying within a private or domestic sphere (such as a family or household).  Lawfully “owned” content will “include downloaded digital content that has been purchased to keep (or licensed in an analogous way) such as eBooks or film downloads, but not rented or streamed materials”.[11]  Private copying that falls within the exception will be permitted regardless of any contractual terms to the contrary.

The Government recognises consumer desires for technology neutrality, with a view to permitting consumers to move content that they lawfully own between all of their devices/media, including cloud services.  So an individual could even upload content to online virtual storage and access it via the cloud, as long as that virtual storage and access is strictly for personal use.  Suggestions that cloud storage might not be private are rejected in the response document.  So are arguments that including cloud services in the exception would have a significant impact on licensing arrangements between rights-holders and cloud services. The Government has explicitly excluded value-added services (such as Spotify and iTunes Match) on the basis that they provide a service that does more than just store copies. Licences will still be required for value-added services, but not for basic storage of copies that are already lawfully owned by an individual.  This is similar to the current position in the USA.[12]

Rights-holders will not be prevented from using technological protection measures (TPM), sometimes referred to as digital rights management (DRM).  Such technology is used by rights-holders to combat copyright infringement by limiting an end user’s ability to make copies.  The supply and use of equipment to circumvent TPM is illegal under EU and UK law.  Information about TPM will still need to be given to the consumer at the point of purchase of content.  Rights-holders will also still need to provide a “work-around” for consumers.  Failing that, the consumer will continue to have the right to issue a notice of complaint under section 296ZE of the CDPA to the Secretary of State, who can issue directions to ensure that the permitted act can be carried out.  As the Government concedes, this complaint procedure is neither clear nor easily accessible.  The Government will therefore implement an electronic system for requesting TPM overrides, setting out criteria to be taken into account by the Secretary of State in considering such a request.  The effectiveness of such system remains to be seen and will be monitored as part the post-implementation review of the new copyright exceptions.[13]

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.  In the response document, the Government takes the position that levies or other compensation are “neither required nor desirable in the context of a narrow provision that causes minimal harm”, observing that levies as an “inefficient tax” and “unfair to consumers” in that they are “payable regardless of the use to which a levied device … is put”.[14]

This pointed downplaying of copyright owners’ economic expectations is controversial.  Consultation responses from copyright owners recognised the ubiquity of private copying and the need for this to be recognised in law.  But, as the response document acknowledges, “the great majority of them felt that a private copying exception of any type or scope would cause them unreasonable harm”.[15]  The Government has assumed that private copying can be factored into the price of content at the point of sale, but with only loose evidence supporting this proposition.[16]  Besides, copyright owners cannot realistically factor in copying outside the private sphere, which remains unlawful but carries on unabated. 

Technology neutrality, while practical for consumers, also has the potential to erode the value that copyright owners could otherwise derive from licensing online services.  Even then, given that the legislation will need to be expressed in technologically neutral terms, it could well be difficult in practice to establish where permitted copying ends and unlawful copying begins – or even what actually amounts to personal use, given the fast-developing nature of personal devices and the ability for these to be shared between multiple users.  Before owners and users alike knew where they stood: copying needed permission, and owners could turn a blind eye to small-scale infringement and re-assert rights where worthwhile.  The new exception moves the goal-posts, but without clearly demarcating the new limits.

Blurring the lines

In several ways, the new regime seems to beg more questions than it is designed to answer.  At any rate, in each case, it substitutes one grey area for another.  That is not a flaw in itself: copying can take an infinite variety of forms, and questions of fact are unavoidable.  But matters of principle can be clear, even if the practical application is not; and what the new exceptions are really supposed to mean will remain unclear until we have the draft legislation – and probably even then, until a new body of case law emerges.

Ironically, the Government’s objectives include “drawing a clear line between acceptable personal copying and unacceptable sharing”,[17] as well as allowing the public to “benefit from legal clarity … when creating parody for non-commercial reasons”.[18]  In fact, it used to be relatively clear where to draw the line, even if it was inherently a question of fact in each case.  Minor technicalities have been left to laissez faire.  More substantive use has been clearly licensable, and collective administration has generally facilitated licensing. 

So the assessment for parody is now set to become more complicated.  The boundaries of private copying do not look clear-cut either.  Whose line is it anyway? – funnily enough, that could be harder to say.

 
Ed Baden-Powell and Ed Weidman Article written for Entertainment Law Review.

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[1]  Modernising Copyright: A modern, robust and flexible framework, published on 20 December 2012.  Footnote references below are to parts of that paper, unless stated otherwise.
[2]  Directive 2001/29/EC.
[3]  Ss. 29, 30(1) and 30(2) respectively.
[4]  A consultation issued on 14 December 2011 in response to Professor Hargreaves’ report of May 2011, Independent review of IP & growth.
[5]  Annex C, p. 29.
[6]  Executive Summary, p.2.
[7]  Namely, whether a fair minded and honest person would have dealt with the copyright work in the manner which the defendant did, for the relevant purpose.  See Hyde Park Residence Ltd v Yelland [2001] Ch 143.
[8]  The case for change, p. 14.
[9]  Delves-Broughton v House of Harlot Ltd [2012] EWPCC 29.
[10]  Directive 2001/29/EC.
[11]  Annex A, p. 25.
[12]  Annex A, p.24.
[13]  Licensing, p. 20.
[14]  Annex A, p. 24.
[15]  Annex A, p. 22.
[16]  See Annex A, p. 23.
[17]  Annex A, p.25.
[18]  Annex C, p. 31.