A recent decision of the Court of Justice of the European Union may provide some assistance in applying the exception to copyright infringement for fair dealing for the purpose of parody.
The Copyright Act contains a number of detailed exceptions from infringement including a series of exceptions based on fair dealing. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.
Fair dealing for the purpose of parody or satire does not infringe copyright and is one of the specific exceptions. This exception was added to the Act effective November 7, 2012 and has yet to be discussed in a judicial decision.
The plaintiff was the owner of the copyright subsisting in a comic book and the characters portrayed in it. The work in issue was a representation of one of the comic book's main characters wearing a white tunic and throwing coins to people who are trying to pick them up.
The defendant, who is a politician, arranged to have a calendar prepared and distributed them to the public. The cover of the calendar is a copy of the plaintiff's work but the comic character was replaced by a representation of the Mayor of the City of Ghent, the defendant's political opponent, and the people picking up the coins were replaced by people wearing veils and people of colour.
The plaintiff initiated an action in a Belgian court alleging that the defendant's calendar cover and its communication to the public constituted an infringement of copyright. In response the defendant took the position that the cover was a political cartoon which fell within a parody exception, which is similar to the Canadian exception. Eventually the proceeding was stayed and specific questions were referred to the Court of Justice.
The context and application of the relevant exception contained in the Copyright Directive and the Belgian law are roughly similar to the Canadian exception. The relevant questions submitted to the Court of Justice were as follows:
1. Must a parody satisfy the following conditions or conform to the following characteristics:
– display an original character of its own (originality);
– display that character in such a manner that the parody cannot reasonably be ascribed to the author of the original work;
– seek to be humorous or to mock, regardless of whether any criticism thereby expressed applies to the original work or to something or someone else;
– mention the source of the parodied work?
2. Must a work satisfy any other conditions or conform to other characteristics in order to be capable of being labelled as a parody?
The court said that, since the Directive gave no definition of the concept of parody, the meaning and scope of that term must be determined by considering its usual meaning in everyday language, while also taking into account the context in which it occurs and the purposes of the rules of which it is part.
With regard to the usual meaning of the term 'parody' in everyday language, it was not disputed, that the essential characteristics of parody are, first, to evoke an existing work while being noticeably different from it, and, second, to constitute an expression of humour or mockery.
It was not apparent either from the usual meaning of the term 'parody' in everyday language, or from the wording of the Directive that the concept was subject to the conditions set out by the referring court in its questions.
As a result the answer to the questions was that the Directive must be interpreted as meaning that the essential characteristics of parody, are, first, to evoke an existing work, while being noticeably different from it, and second, to constitute an expression of humour or mockery. The concept of 'parody', within the meaning of the Directive, is not subject to the conditions that the parody should display an original character of its own, other than that of displaying noticeable differences with respect to the original parodied work; that it could reasonably be attributed to a person other than the author of the original work itself; that it should relate to the original work itself or mention the source of the parodied work.
The court referred to the plaintiff's assertion that since in the defendant's cover the characters who, in the original work, were picking up the coins were replaced by people wearing veils and people of colour, that drawing conveyed a discriminatory message and associated the plaintiff's work with such a message. The court said if the assertion was established the plaintiff would have in principle, a legitimate interest in ensuring that the work protected by copyright is not associated with such a message. This issue and the application of the exception will have to be determined by the Belgian court as the action progresses.
The approach taken in this case will be helpful in applying the exception contained in the Canadian Act. The allegation that the parody was discriminatory in nature could be considered in the context of determining whether the defendant's dealing with the plaintiff's work has been fair.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.