Parody and Moral Rights

This chapter examines the relationship between parody and an author’s moral rights. It first traces the evolution of the concept of moral rights as a means of providing protection not only of the authors’ personal interests but also the public interest before discussing the reasons why moral rights might conflict with parodies. It considers two competing theories underlying the protection of authorial interests—the ‘monist’ theory and the ‘dualist’ theory—and their implications for the parody exception. It also explains how jurisdictions differ in the nature and scope of protection afforded to moral rights, noting that the parody exception in ‘copyright’ law does not extend to moral rights. The chapter goes on to explore the author’s paternity and integrity rights as well as their right against false attribution. It shows that, in the case of parodies, an overlap exists between the regimes applied to moral and economic rights.

How Freedom of Expression Defines the Parody Exception

This chapter examines the relevance of freedom of expression to the parody exception. It first considers the debate on the interaction between intellectual property rights and fundamental rights before discussing the ways in which freedom of expression may address the excessive expansion of exclusive rights as well as the outer limits of the parody exception. The chapter explains how human rights are embodied in the parody exception and how factors established in the European Court of Human Rights jurisprudence may legitimately restrict freedom of expression. It also explores how national legislators and courts in France, Australia, Canada, the United States, and the United Kingdom strike a balance between freedom of expression values and copyright values. It shows that the outer limits of the parody exception in each jurisdiction are determined by the influence of freedom of expression on copyright, the margin of appreciation, and the proportionality test.

Parody—Nature and Definition

This chapter provides an overview of the nature and definition of parody in the context of copyright law. The Court of Justice of the European Union (CJEU) has introduced two requirements that must be satisfied before a work may be considered a ‘parody’: firstly, it must ‘evoke an existing work while being noticeably different from it’, and secondly, it must ‘constitute an expression of humour or mockery’. The chapter first traces the origin and history of parody in the arts, including music, before discussing the relationship of parody with concepts such as satire, caricature, and pastiche. It then examines why a parody exception has been considered necessary in copyright law. The chapter goes on to analyse the legal evolution of parody in France, Australia, Canada, the United States, and the United Kingdom, showing that the existing international human rights framework may influence the definition of parody in intellectual property law.

Factors to Consider for the Application of the Parody Exception

This chapter focuses on various factors which are potentially relevant to the application of the parody exception. It begins with a discussion of the problematic nature of defining the contours of the parody exception, placing emphasis on fair dealing and rules of the genre that traditionally constitute a two-step assessment used by the courts to determine whether the use of the work is ‘for the purpose of parody’. It then considers a number of landmark decisions that illustrate the relevance of the ‘traditional’ fairness factors adopted in the judicial consideration of the parody exception. These factors include the intent of the parodist, encroachment upon the right-holder’s economic rights, absence of confusion, the quantity reproduced, motives of the parodist, and the three-step test. The chapter concludes by asking whether national courts might introduce new factors and seek to adapt the parody exception to new kinds of uses.

Consequences of the Nature of the Parody Exception

This chapter examines the consequences of the nature and function of the parody exception in copyright law. It first explains the ‘mechanics’ behind the parody exception, particularly as a defence to copyright infringement, before discussing the legal nature of copyright exceptions and in relation to copyright and contract laws. It then addresses the question of whether copyright exceptions, especially the parody exception, amount to rights or are more akin to interests. It also considers the principle of strict interpretation as a rule of interpretation for the parody exception and reviews recent decisions that illustrate whether the user rights approach resulted in any noticeably broader interpretation of copyright exceptions. Finally, it explores the principles underpinning freedom of contract and how judges, notwithstanding the parody exception’s procedural label as a defence, assess fair use, fair dealing, or rules of the genre in light of the right to freedom of expression.

The Music Industry and the Future of the Parody Exception in Copyright Law

This chapter reflects on the future of the parody exception as an area of copyright law. Focusing on the UK music industry, it considers how business practices may contribute to the realization of the goals underpinning the parody exception, taking into account the moral rights of songwriters and performers and the role of collecting rights societies in administering and enforcing copyright with respect to the creation of musical parodies. The chapter also examines the ways in which the human rights framework may be used to shape the parody exception. Examples are given to illustrate how the right to freedom of expression has been curtailed in order to protect abuse of other fundamental rights, including personality rights. The chapter concludes by reiterating the book’s argument for a more holistic approach that allows the parody exception to strike a fair balance between the interests of right-holders, parodists, and society at large.

Legality of the Parody Exception in Light of International Treaties and Domestic Copyright Laws

This chapter examines the legality of the parody exception in light of international treaties and domestic copyright laws. More specifically, it considers whether the parody exception may only be introduced into national copyright law if it satisfies the three-step test enshrined in international treaties. The chapter first traces the history and evolution of copyright law before explaining whether copyright law requires a specific parody exception and why a specific parody exception rectifies the balance between right-holders, users, and subsequent authors. It then discusses the three-step test, first incorporated into the Berne Convention to protect the ‘right of reproduction’, and its adoption in European Union texts and national legislations. It also outlines the differing interpretations of the three-step test and concludes with an analysis of whether the current parody exceptions in each of the five jurisdictions (France, Australia, Canada, the United States, and the United Kingdom) comply with this test.