LEGISLATION AND REPORTS: Copyright and Parody: Taking Backward the Gowers Review?

Publication Date01 Sep 2010
DOIhttp://doi.org/10.1111/j.1468-2230.2010.00818.x
AuthorRonan Deazley
LEGISLATION AND REPORTS
CopyrightandParody:TakingBackwardtheGowers
Revie w?
Ronan Deaz le y
n
In 2006 the GowersReviewof Intellectual Propertymade a series of recommendationsfor reform-
ing the intellectual property regime to betterserve the interests of both consumers and industry.
Amongthe proposed recommendations was that an exceptionfor parody be introducedwithin the
CopyrightDesigns and PatentsAct1988. In January 2008the Intellectual PropertyO⁄ce (the IPO)
launched the ¢rst part of a two-stage consultation process on exceptions to copyright. As part of
that consultation process,the IPO proposed a ‘fairdeal ing style exception’for parody, and sought
views on whether a new exception should be introduced as well as what form it might take. In
December 2009 the IPOlaunched the second stage of this consultationprocess.The second con-
sultationdocument rejectedthe case for a new parody exception.This article considersthe place of
parody within the copyright regime and the objections levelled against the introduction of an
exceptionset out within the IPO’s second consultationdocument. It invitesthe IPO to reconsider
its decision not torecommend the introductionof a speci¢c exception forparody within the UK.
INTRODUCTION
In January 2008, whenthe Intellectual Property O⁄ce (the IPO)invited views on
the impact that the introduction of a ‘fair dealing style exception’ for parody
within the copyright regime might have, as well as how such an exception might
be framed,
1
the main issue arising out of the responses received was not how an
exception should be constructed but whether or not an exception for parody
should be introduced at all.
2
In December 2009 the IPO, in its Secon d Stage Con-
sultation document on copyright exceptions, rejected the case for a new parody
exception.
3
The principal focus of this article will be to consider the place of
parody within the copyright regime, as well as the IPO’s recently stated position
on the same. The commentary that follows is divided into three sections. The
¢rst will assess existing provision for the parodic use of copyright-protected
material under the current copyright regime. The second will address the various
n
Glasgow LawSchool, University of Glasgow. Aversion of thi s articlewas submitted to the Intellec-
tual Property O⁄ce on 31 March 2010 in response to a cal l for submissions as part of their ongoing
consultation process on copyright exceptions. The author would like to thank the following indivi-
duals for their comments on earlier drafts of this article: Anne Barron, Dr Jonathan Gri⁄ths, Prof
Martin Kretschmer, Dr Frankie McCarthy and Dr Andreas Rahmatian. Particular thanks are due to
Ms L.Wolfe. The usual conditions apply.
1Taking forward the Gowers Review ofIntellectual Property: Proposed changes tocopyright exceptions (New-
port: Intellectual Property O⁄ce,20 08)38^44.
2Taking forward the Gowers Review of Intellectual Property: Second StageConsultationon CopyrightExcep-
tions (Newport: Intellectual Property O⁄ce, 2009) 45.
3ibid 3, 46.
r2010The Author. Journal Compilationr2010 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(5) 785^823
objections to the introduction of an exception articulatedwithin the IPO’s second
consultation document.The third will set out a number of arguments favouring
the introduction of an exception for parody. Speci¢cally, this article invites the
IPO to reconsider its decision not to recommend the introduction of a bespoke
exception for parody withi n the UK.
Before continuing, some brief comments about the nature and de¢nition of
parody are warranted. As we shall see, one of the objections to the introduction
of an exception for parody concerns theargument that parody is alreadyprevalent
within popularculture and thatthe lack of an exception has not posed any serious
problem to date. While that is true to a certain extent, it is important to acknowl-
edge that parody is multivalent; it speaks to and embraces a range of di¡erent
cultural practices such as allusion, burlesque, caricature, irony, mimesis, pastiche,
persi£age, satire,skit, spoof, travesty, and so on.This article will in no way attempt
to articulate a de¢nitive classi¢cation of these various related cultural forms. Such
an exercise is beyond the expertise of the author and is, in any event, probably
impossible to achieve with anydegree of academic or popular consensus.
4
With that in mind, however, this article proceeds upon the basis of two simple
propositions. First:that while in some situations successfulparody will not require
any direct copying of an underlying work, in other situations successful parody
will require that the parodist borrowdirectly from an underlying work. Second:
that it is not possible to makea ny claim in the abstract about the relative merits of a
parody that does not borrow directly from an underlying work as opposed to one
that does. Much will depend upon the circumsta nces of each individual ca se, upon
the aims of the parodist, the target of the parody, and the medium deployed. It is
only when parody requires that the parodist borrowdirectly from an underlying
work that the copyright question bites. In that light, the observations that follow
are not concerned with parody per se but only with parody that involves some
measure of direct copyingof an u nderlyingwork in order to function successfully.
PARODYUNDER THE CURRENT COPYRIGHT REGIME
The second consultation document sets out that ‘[a]lthough the current regime
does not go as far as many would like to see, it does a¡ord some basis for permit-
ting parodies, etc to be created for example by taking parts from underlying
works which are not considered substantial [under section 16(3)(a) of the Copy-
right Designsand Patents Act 1988 (the CDPA)] or by using parts of works under
the fair dealing exception for criticism [CDPA, section 30(1)] or by seeking per-
mission, through licensing, to use the underlying work’.
5
The second consulta-
tion document also places reliance upon the availability of a general public
4See S. Dentith, Parod y (Routledge: London and NewYork) 6 (‘because of the antiquity of the
word parody. . . because of the range of di¡erent practices to which it alludes, and because of
di¡ering national usages, no classi¢cation [of parody] can ever hope to be securely held in place’),
and L. Hutcheon, ATheory ofParody:TheTeachings ofTwentieth-Century Art Forms,2
nd
edn (Cham-
paign, IL: University of Illi nois Press,200 0)10 (‘there are probably no transhistorical de¢nitions
of parody possible’).
5n2above,46.
Copyright and Parody
786 r2010The Author. Journal Compilation r2010The Modern Law ReviewLimited.
(2010) 73(5) 785^823

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