Towards a Parody Consensus?

Glenn Kauth has an article in the current Canadian Lawyer magazine entitled Push and Pull of Copyright Reform.

He quotes several lawyers, including Ron Dimock, Peter Wells, myself and Jason Gratl (a Vancouver lawyer acting for a defendant in the Vancouver CanWest case which may turn on parody). But the most interesting quote is from Roanie Levy of Access Copyright, which wants to collectively license just about anything imaginable having to to do with the printed word and then some.

To my delight, even Roanie seems to concede that an amendment is necessary to deal with parody. She is quoted as follows:

“The law is not clear. In my opinion, [an exception for parody] is there. But we don’t have a lot of case law on it in Canada,” she says, calling for a “specific, limited exception” for such works.

Now, it seems that even Access Copyright is on board for a parody right/exception and will hopefully refrain from trying to monetize it through a "commercially available" exception to the exception or a "market-based solution" as is its wont. (I'm just kidding - please don't anyone get ideas). Can other content owner interests be far behind? Is this at least one area where there might be a glimmer of agreement?

Will Canada be able to regain its rightful place in the G8 of humour, at least?

In all seriousness, a satire and parody right/exception should be an obvious inclusion in any new legislation. It should by no means be the only "user friendly" gesture, as I am sure some content owners would like to see. But it would be a good start to restoring some sense of balance and civility in the great copyright wars that are unfolding.

HK

A Satire & Parody Right Needs Legislation

The memo that David Akin has unearthed to the former Minister of Industry, Jim Prentice, confirms what I have been saying - namely that a satire and parody right cannot be left to the Courts.

If we do that, we will probably not have a satire and parody right in Canada. Just because a law professor says that the Michelin decision "no longer seems to be good law" doesn't make it so and is unlikely to have much effect on a Court.

Courts don't make laws. They interpret the law. And in this case, they are sticking with the Michelin decision, for better or worse.

As for satire and parody, we need an explicit black and white amendment to bring Canada in line with the USA, France, Australia and where the UK is headed.

If anyone has a good argument against such an amendment, I'd like to hear it.

HK

PS - Quite apart from commercial common sense, freedom of expression, etc., etc., why can't Canadians have a sense of humour (yes that's the way we spell it...)? Eh?

David Akin on Satire and Parody

As copyright law increasingly appears more and more in main stream media reporting, one of Canada's leading journalists, David Akin, deals with satire and parody and links to Michael Geist and myself in a very good blog that relates to freedom of political speech.

This is in the context of the cross Canada copyright consultations.

HK

More on Satire and Parody and the Need for Legislation in Canada

Prof. D’Agostino has posted a thoughtful comment, with which I respectfully disagree, on my posting from yesterday on the BC parody case. It merits a sufficiently lengthy reply to require a new entry.

I think that Prof. D’Agostino and I agree that parody (she doesn't discuss satire) should be part of the law of fair dealing in Canada, but we disagree on whether to leave this to the courts or whether it should be dealt with by Parliament.

Here is what she actually said about "legislative intervention" on the parody issue in her two recently published papers.

At page 41 of her Canadian Heritage paper, she says:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the UK, Gowers recommended that the government should enact a new copyright exception for parody. Before CCH many scholars posited that parodies would be infringing in Canada. Post CCH’s liberal interpretation of the enumerated grounds, it could be argued that “criticism” could now encompass parody. Michelin no longer seems good law. Indeed, parody in the US is not an automatic. Parody still requires analysis of each of the four factors as well as some use of the target to be fair. This can now also be the case in Canada and would likely not require any legislative intervention. (Footnote omitted) (emphasis added)

At page 359 of her McGill paper, which I had not seen until now, she says virtually the same thing:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the United Kingdom, Gowers recommended that the government enact a new copyright exception for parody. Before CCH, many scholars posited that parodies constitute infringement in Canada. In light of CCH’s liberal interpretation of the enumerated grounds, it may be argued that “criticism” could now encompass parody. Michelin no longer seems to be good law. Indeed, the protection of parody in the United States is not a foregone conclusion: parody still requires analysis of each of the four factors as well as some use of the target to be fair. Now this might also be the case in Canada, without the necessity of legislative intervention. In Canada, the issue may turn on the sufficient acknowledgment requirement (not present for research or private study, nor required in the United States). In the United Kingdom, where the same requirement exists, courts have been flexible in overcoming this hurdle in the case of criticism, review and news reporting. This flexibility or, indeed, dispensation with the acknowledgement requirement should be more warranted for parody. In parody, the link between the original and the parodic twin is often obvious since “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” (Footnotes omitted) (emphasis added)

Prof. D’Agostino seems to prefer more of a soft law approach of “best practices.” Unfortunately, one cannot count on this achieving tangible results in Canadian courts.

She mentions Prof. Peter Jaszi’s work on best practices. I have worked with him over the years and have the highest admiration for him. However, “best practices” initiatives as developed by him and Pat Aufderheide are likely to be more successful in the USA, where fair use is codified only in the most general terms and industry practices are more likely to be accepted by the courts as fair. Indeed, that’s part of the theory and practice of the American system. In Canada, we now have the CCH decision, which follows decades of restrictive literal reading of the mostly very specific and explicit exceptions, of which the “dry erase board” takes the cake. However, as enabling and liberating as CCH seems for users’ rights, it may not permanently throw the door wide open. There are concerted efforts by lobbyists that could result in significantly undoing it, including by some who should know better. Ironically, the efforts of educational community at the management level as exemplified by CMEC and the AUCC could have this result. They don’t seem to get the message from this decision, or if they do, they don’t seem content to rely on it in any possible future litigation.

A “best practices” initiative can’t hurt and may help - as long as any initiative in this respect does not take pressure off the need to legislate. Such "best practices" could be a "complement" to legislation, as Prof. D'Agostino recognizes, but should not be an "alternative" as she also suggests at page 361 of her McGill paper. Such an initiative might provide guidelines for acceptable satire and parody practices, but should not replace legislation needed to enable satire and parody in the first place. Indeed, Prof. D’Agostino is kind enough to give me credit me for an initiative to develop guidelines at page 361 of her McGill paper. This stems from my White Paper on film documentaries from 2006. However, in that same paper, I also explicitly recommended near the top of my list of recommendations a legislative change to establish a satire and parody right. On this issue, I’m taking a “belt and suspenders” approach.

We have had this parody impasse in Canada since the 1996 Michelin decision, which a lot of people believe may have wrong been then and even more wrong now in light of subsequent case law. But it wasn’t clearly wrong and still isn’t clearly wrong. It was a reasoned and lengthy ruling by a highly respected Federal Court judge. It was never appealed. And it’s still the law in Canada, at least in the eyes of Master Donaldson in the BC Supreme Court.

One of these days, we will have a functioning Parliament again. I hope that it does its job by passing clear legislation so that Canada doesn’t stand almost alone amongst comparable countries in rejecting a parody right in the name of copyright law. Even France, which is a civiliste and copyright “maximalist” country allows for parody.

Canada can’t tolerate years of uncertainty and an uncertain outcome if this matter is left to work its way through the development of best practices and further litigation.

HK

Parody Defence Not Available according to BC Court

The Tyee reports on a copyright case involving alleged infringement of a Canwest newspaper in which the defendant pleaded that the material was a "parody."

This defense was struck out at a very early stage by a BC Supreme Court Master in this ruling that parody was not available as a "fair use" [sic] defense under the Copyright Act, based upon the Michelin decision of 1996. The Master's ruling is being appealed.

Prof. D'Agostno has publshed a lengthy analysis of the SCC's CCH decicsion in which she twice states that, in light of the 2004 CCH judgment from the SCC, the Michelin decision "no longer seems to be good law." Unfortunately, the Courts don't seem to be agreeing with her.

I hope she is right and there is, indeed, recent SCC jurisprudence since her paper boosting freedom of expression in Canada in the defamation context.

But I disagree with her that the CCH decision means that no legislation is necessary. I've published a paper recently entitled "Why Canada Needs Parody Parity and Comedy Comity: Copyright Control of Canadian Humour" in Vol. 20 No. 3 (October 2008) of Les Cahiers De Propriété Intellectuelle in which I said:

I strongly disagree with Prof. D'Agostino's position that we do not need legislative intervention in this instance. It is primarily the responsibility of Parliament, and not individual litigants, to take the necessary steps to provide clear and predictable laws in Canada. The current Bill C-61, for example, would provide a dream list of new, overreaching and unnecessary rights for content owners. Unfortunately, there are no highly paid lobbyists fighting for creators and users who strongly need a satire and parody right in Canada. When Parliament proceeds with copyright revision, a satire and parody right should be included. It would even be justifiable on its own, if a larger package does not proceed in the near future.

Test case litigation is not an answer in this situation. There are major costs risks in seeking a ruling from the Federal Court of Appeal or another appellate court that parody is now included in fair dealing and is therefore a user's right in Canada. While there is reason to hope that this would be the result of such litigation, one cannot count on this being the case. There were serious splits on copyright doctrine that were exposed in the Supreme Court's Kraft decision in 2007.

Moreover, the recent retirement of Justice Bastarache and the imminent appointment of new Justice on the Supreme Court thereby ensure even more post-Kraft unpredictability if the case were to get that far. Furthermore, well and thoroughly fought copyright litigation is quite rare in Canada and there is no guarantee that the "right" case will arise in the foreseeable future. In terms of how it may arise, it may not be necessary to wait for a lawsuit to be launched by an aggrieved rights holder, since pre-emptive litigation is now possible in principle. However, pre-emptive copyright ligation is rare, risky and expensive. In any event, resolution of the parody issues in the Canadian courts at an appellate level will take several years from whenever a test case is started.

I'm afraid that the BC ruling illustrates my point. This issue is much to important to be left to the vague uncertainties of the trial courts and the often limited resources of defendants. Legislation providing a satire and parody exception is necessary and should be an important part of whatever copyright bill may emerge in these uncertain times.

HK

To Plagiarize, "Research" or "Shade Your Eyes"?

There has been much discussion today of plagiarism in the context of the Canadian election, with accusations reported around the world of plagiarism of Australia's former Prime Minister John Howard concerning the war in Iraq in a 2003 speech in Canada's Parliament. There have even been suggestion that the impugned wording, or at least the "talking points", came directly from Washington, which would at least obviate the accusation of plagiarism of Mr. Howard. This has been denied, on the basis that "it was “ridiculous” to suggest the Conservatives were directed by George W. Bush and the Republicans or provided with talking points on Iraq." In any event, an individual speech writer has taken responsibility for the 2003 speech and stated: ""I apologize to all involved and have resigned my position from the Conservative campaign."

On a lighter but trenchant note, never has there been a a better satirical exegesis of the issue of plagiarism than from Tom Lehrer, the 20th Century Mozart of satire, parody and perfect commentary of all things intellectual and political. Hear it here.

Tom - where are you now when we really need you again? Tina Fey is a great satirist and parodist. You could do even better... We live in interesting times, Tom. We miss you and need you...

BTW, one of my fav blogs has picked up on my campaign for a satire and parody right in Canada. See here on IPKat.

HK

New Zealand Considers Allowing Satire and Parody

New Zealand is now considering an explicit provision in its copyright legislation to allow for satire and parody.

This follows a recent amendment in Australia.

Section 41(A) of the Australian Copyright Act as amended in 2006 provides that:

A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.

The Gowers report in the UK recommended such an amendment. The US Supreme Court confirmed in the 1994 Acuff-Rose "Pretty Woman" case that a right of parody exists under the fair use provisions in American law.

That leaves Canada alone without an actual satire or parody right or a willingness to seriously consider it amongst the major common law jurisdictions to which we normally compare ourselves. Even France, where copyright is taken very seriously, has such a right.

It is understood that the main opposition to such a right comes from certain increasingly isolated voices in the Canadian music industry, who have managed to keep the issue off the table in the last two bills.

How the denial of such a right could possibly hurt composers or music publishers is difficult to understand. There is no evidence that such a right has caused any harm in the USA in the 14 years since the Acuff-Rose decision. Indeed, the satire and parody genre has been indispensable to Western art and culture at least since the time of Aristophanes in Athens in the fifth century BC.

I guess that things take a while to percolate through in Canada.

HK

Fair Use for Online Video - eh?

Peter Jaszi and Pat Aufderheide - two brilliant professors in Washington, DC, have just published a guide called Code of Best Practices in Fair Use for Online Video available here.

They had the input of such distinguished profs such as Pam Samuelson in this work.

It talks about what one can and can't do under American law in making online videos, smashups, parodies, etc.

A lot of what they say can be done in the USA won't be possible in Canada if Bill C-61 is enacted as is.

Canada still won't have a parody exception. Freedom of expression is still clearly trumped by copyright law in Canada. Although Canada's Supreme Court has recently signalled in WIC v. Simpson that freedom of expression may be given more scope than we had previously thought in defamation matters, we aren't there yet in copyright law and Bill C-61 may go a long way to shutting off that possibility.

So, read Peter and Pat's lucid and clear guide - and weep for what we don't have in Canada.

HK