In December 2006, Andrew Gowers made some recommendations to the Government to make the UK an even funnier place.  As I write, the jury is still out as to whether the former FT editor contributed to this objective.  But be that as it may, the Gowers Review did indeed suggest the introduction of an exception to copyright for caricature, parody and pastiche.

Being raised in Germany, a country not celebrated for its humoristic nature, I wonder whether such an exception is really a germane proposition to increase the UK’s comic output. 

On the face of it, probably not.  Caricatures and parodies are already commonplace in Britain … and I am not just referring to the daily outpourings of the red-tops.  The likes of Rory Bremner, French and Saunders and Private Eye offer just three examples of popular contemporary parody.  British satire thrived in 2007 as it did in the era of Swift and Defoe.  It is a national way of life.

In regards to music, a parody is a legitimate art form which imitates a work, the style of a work, or the style of a creator, in order to make fun of it. 

Typically, this is done in an affectionate way.  However, while being protected itself as a work of art,  a parody generally needs the authorisation of the copyright owner.  Some parodists even ask for permission out of courtesy and respect for the original author. 

Under UK copyright law, the need for an authorisation is determined on the basis of whether the parody has taken a substantial part of an original work - i.e. the expression of the idea.  This approach ensures a common sense case-by-case application, balancing the interests of the original creator and those of the general public.  This has been tested and established in various court cases since 1916, and consequentially in 2003 the UK legislator decided not to introduce an exception for parody while implementing the European Copyright Directive.

In Europe, it is a slightly different story.  In France for example, an exception is in place.  When a work has been made public, the author cannot prohibit parody, pastiche and caricature, taking account of the laws of the genre.  The rationale for this exception is the strength of moral rights in France, which should be balanced against the right of free speech.  Moral rights are not as well developed in the UK as they are on the Continent. 

The French judges have to decide on a case-by-case basis if a work has been parodied ‘according to the rules of the genre’ based on two criteria:

• The parody must have a humorous intention - which for example excludes material of a harmful nature.
• The original parodied work should be clearly different from the parody. 

Other countries, such as Germany and Italy, have no specific exception, but deal with issues of caricature, parody and pastiche under normal copyright rules similar to the UK.

Further afield, the United States deals with parodies under their “fair use” provision of its Copyright Act and decides on a case-by-case basis according to four criteria.

• The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes.
• The nature of the copyrighted work.
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
• The effect of the use upon the potential market for or value of the copyrighted work. 

Quite simply, I’m not aware of any problems caused by the absence of a specific exception to copyright for caricature, parody and pastiche.  Indeed, by referencing the success of “Weird Al” Yankovic - who actually did seek rights holders permission before releasing such classics as Eat It and Smells Like Nirvana - Gowers would seem to agree, albeit inadvertently.  

The fact that “Weird Al” has built a successful career parodying other people’s songs - including 25 gold and platinum albums - is evidence that the current system works, and that it can balance the demands of humour with the rights of the original creator.  In proposing change, Gowers is seeking to fix something that was never broken in the first place. 

Existing copyright currently offers no threat to UK humour and even if it did, there are no moral reasons to justify ignoring the interests of the original creator (without whom there would be no parody in the first place).  A proposed exception would only endanger these moral and economic interests and lead to potential abuses. 

In returning to national stereotypes once again, it’s time to get up early, run down to the pool and put our towels over this Recommendation. 

Florian Koempel, Legal Counsel, European Affairs of British Music Rights is a lawyer specialising in copyright and intellectual property.

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