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Funny business - new copyright exceptions now in force

After vigorous debate in Parliament earlier this year, changes to UK copyright law have now been implemented providing new exceptions to copyright infringement. These new exceptions came into force on 1 October 2014.

Parody exception

The most publicised new exception is the parody exception which brings UK law into line with many other jurisdictions worldwide, for example the US.

The exception states that "Fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work" (broadly referred to as the parody exception). This now means that, subject to fair dealing (essentially a limited and moderate amount), comedians, cartoonists and artists no longer need permission from the copyright holder.

Ostensibly this looks to provide a great deal of freedom of expression for social and political commentators and we might expect to see a good deal of new edgy material. However, the exception is not boundless and provides no defence to a claim of defamation.

Finally, specifically relating to 'parody', it is likely that the UK courts will also look to the recent case of Deckmyn in the European Court of Justice (CJEU) for guidance. This case concerned the use of a drawing resembling a comic book author's work in a political party's calendar. A claim for copyright infringement was brought against the political party which raised the defence that the reproduced elements constituted a work of parody. The CJEU sought to achieve a fair balance between respecting the rights of copyright owners and the freedom of expression of views and opinions through parodies. They said that a parody is one which "evoke[s] an existing work, while being noticeably different from it" and which "constitute[s] an expression of humour or mockery". It does not have to "display an original character of its own" but must show "noticeable differences with respect to the original parodied work". As such parodies should be capable of being "reasonably … attributed to a person other than the author of the original work itself" and "should relate to the original work itself or mention the source of the parodied work".

While it is expected that we will see an increase in use of parody, caricature and pastiche across different media, it will certainly be interesting to see how courts deal with the CJEU's definition of parody given the very subjective nature of what constitutes humour and mockery.

Other exceptions

As well as the parody exception, new copyright exceptions for private copying and general quotation of copyrighted material have also been introduced.

The private copying exception will allow the making of a personal copy of an individual's own copy of a work for that individual's private non-commercial use. For example, this means that an individual should have a defence to infringement for copying a CD onto their MP3 player, although copyright will still be infringed if copies are made for your friends and family. 

The quotation exception allows greater freedom to quote from a copyright work provided that the work has been made available to the public, the use of the quotation is reasonable and fair (ie no more than is required for the specific purpose) and the quotation is accompanied by a sufficient acknowledgment. This is good news, for example, for businesses that wish to make some use of quotes from reviews in newspapers and online in their marketing material, subject to compliance with the provisos!

The modernisation of copyright law and the extension of rights for both businesses and consumers is to be welcomed. However, it remains to be seen how these new exceptions will be interpreted by the courts, especially in the context of fair dealing.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2014. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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