As of 1 October 2014, three new exceptions to copyright infringement have come into force in the UK. The new exceptions affect the way in which copyrighted works can be used and have come about as a result of increasing pressure on UK legislation to reflect the fast-paced digital age that we live in. These changes are likely to not only impact creators and copyright owners, but also consumers, researchers and those in the education sector.

The three new exceptions are (i) personal copies for private use; (ii) quotation; and (iii) caricature, parody or pastiche. If a use falls into any of these categories, the user will be entitled to use the copyright owner’s work without needing to obtain the copyright owner’s consent or a licence.

Personal Copies for Private Use

The first exception permits an individual to make a copy of media that he or she has acquired (such as digital music, videos, CDs and eBooks) to another medium or device that they own, provided that the individual has acquired the media lawfully and permanently (i.e. has bought it or had it gifted to them) and the copy being made is for private use and not a commercial purpose. This is most likely to apply in circumstances where an individual is making a backup copy, storing a copy or for format-shifting.

This exception does not extend to anyone beyond the individual.  Therefore, if an individual makes a copy for his/her friends and family without the copyright owner’s consent, they will have infringed the owner’s copyright. In addition, if an individual wants to sell their media to another person, they are required to destroy their personal copy upon sale.

This exception contrasts with personal copying exceptions in other EU member states. Such countries allow copies to be shared with friends and family and, as a result, these countries have in place copyright levies as a mechanism for fair compensation of the copyright holders. The lack of a levy regime in the UK has caused some controversy, with some companies threatening to pursue legal action in order to obtain fair compensation for British rights holders. Nevertheless, as pointed out by IP Minister Baroness Neville-Rolfe, the limited scope of this new exception means levies are not necessary in the UK; to impose them would be “inefficient, bureaucratic and unfair”.

Quotation

Previously, it was illegal to quote from a work unless it was being done for the purposes of criticism, review and news reporting. The change in the law has broadened the existing rules so that people have more freedom to quote the work of others. Quoting from another person’s work will now be acceptable provided that the quotation is properly acknowledged and credited, and the use is considered to fall under the scope of ‘fair dealing’.  There is no statutory definition of fair dealing, and consequently what is considered to be fair will be decided on a case by case basis. When considering fairness, the court has taken into account whether or not the use of the copyright work has had an effect on the market of the original work, for example whether the work acts as a substitute for the original, causing the owner to lose revenue. The court has also considered the amount of work used which must be no more than is required for the specific purpose. Therefore, if someone has quoted a long extract from a book or article without it being justified by the context, it is unlikely to be permitted.

Caricature, Parody or Pastiche           

Perhaps the most interesting change is the third new exception that allows individuals to use limited amounts of another person’s material for the purpose of caricature, parody or pastiche, without needing to obtain permission from the copyright holder. According to the Intellectual Property Office, “only minor uses are permitted and a use must be considered fair and reasonable” to fall under this exception. Accordingly, copying a whole work is not permitted.

The concept of parody was defined on 3 September this year by the Court of Justice of the European Union in Deckmyn v Vandersteen (C-201/13). The court confirmed that parody is an autonomous concept of EU law which has two key characteristics: (i) it must evoke an existing work whilst being noticeably different from it and (ii) it must constitute an expression of humour or mockery. If a claim of copyright infringement is made against a parodist, it will be up to the court to decide whether or not the material in question constitutes a parody. It will be interesting to see how this exception develops since comic value is fundamentally subjective and will differ from judge to judge. It is not always easy to persuade a judge that a work is a parody, such as was the case in HEM v Sveriges Radio Aktiebolag [1998] EIPR 20(6) N98-99, where the court rejected an argument that an inflatable Swedish doll resembling the figure in the painting The Scream by Munch was a parody; the judge did not agree that the doll made a ridiculous or amusing impression different from the impression given by the original work. Accordingly, until new case law is established, there will be a question mark over what will or will not be construed as a parody for these purposes.

This exception is particularly topical given the power of digital technology and the internet today. In recent years, there has been a huge surge in popularity of artworks, songs, comedy sketches and films that have been ‘mashed-up’ and/or fall within the ambit of caricature, parody or pastiche. A good example of this is “Newport (Ymerodraeth State of Mind)”, a parody of the Jay-Z and Alicia Keys song “Empire State of Mind” which replaces the original lyrics with references to South Wales. A further example is “MasterChef Synaesthesia” where quotes from John Torode and Gregg Wallace were reproduced as a track, which ended up in the UK charts. Both of these “mash-ups” went viral and were heard by millions of people, demonstrating the impact and reach that is possible.

The change in the law has already attracted favourable comments from individuals such as “CassetteBoy” who used extracts from “The Apprentice and Dragons’ Den” to create comical montages. Until the entry into force of this exception, an individual creating a parody of this sort would not have had a defence to a claim of copyright infringement under UK law unless permission had been obtained from the copyright owner to use the original work. For this reason, creators have been constantly vulnerable to the risk of having their work removed at any time or even to legal action for damages being brought by the copyright owner.

This new copyright exception does not affect the law of libel or slander. Consequently, the copyright owner of a work which has been parodied may still sue if the copy is defamatory in nature. Similarly, the exception will not affect a copyright owner’s moral right to object to, and sue for, ‘derogatory treatment’ as defined in the Copyright Design and Patents Act 1988.

Rose Guest