Regrettably, the Copyright Modernization Act adds “parody and satire” as yet another purpose in respect of which fair dealing would not require consent of the copyright owner.

Granted, I’m not a big fan of any expansion of the fair dealing, but this is one area that I am particularly passionate about. Maybe it is because of the major paper I wrote on this topic a few years ago.

Canada along with Australia will now be the only two countries whose legislation contains an explicit exception for both parody and satire. Like Australia and pretty much all other countries, Canadian legislation does not contain the definition or even anything remotely resembling a definition of either parody or satire, which is always helpful when the government takes away your rights.

The distinction between the two was initially pronounced in the leading U.S. Supreme Court parody case, Campbell v. Acuff-Rose Music, 510 US 569, 114 S. Ct. 1164 (1994), where both the majority and the concurring judge agreed that

”[i]t is not enough that the parody use the original in a humorous fashion, however creative that humour may be. The parody must target the original, and not just its general style, the genre of art to which it belongs, or society as a whole (although if it targets the original, it may target those features as well).”

Unlike parody, satire may target anything, as long as it has an element of “funniness” to it.

Based on the proximity of the target of the purported parody or satire to the underlying work, resulting works may be allocated on a spectrum.

One end of the spectrum would reflect the narrowest interpretation of parody, where the primary (if not the only) target of the parody is the underlying work itself. Very close to that end would be parodies targeting the author of the underlying work, or its performer. In a way, a narrow interpretation would reduce parody to a humorous variation of criticism. On the other hand, even the narrowest interpretation of parody has a very important distinction from criticism in that parody is both the critique and the object of the critique merged in a single work, whereas criticism usually presupposes parallel use (quotation) of the underlying work and its critique, not necessarily in the same genre.

On the other end of the spectrum would be satire that does not target the underlying work at all. In my opinion, one should not be allowed to use an added sparkle of humour as an excuse to infringe upon a protected work, where the resultant work has nothing to do with the underlying work, its author, performer or even context.

For the sake of example proving the complexity of the spectrum, let’s take the famous theme song from “Titanic” and completely replace the original lyrics with new funny ones. Under the strictest definition of parody, such use would be a parody only if the lyrics were targeted at ridiculing the song itself. A slightly more relaxed definition would allow to add the song’s authors (James Horner and Will Jennings) or performer (Celine Dion) as legitimate targets. An even broader definition would allow to include the film’s actors associated with the song (Leonardo DiCaprio as Jack Dawson, Kate Winslet as Rose DeWitt Bukater or others), the film itself, or its creators (James Cameron, 20th Century Fox). A further step away from parody and towards satire would be to ridicule the American cinematographic culture, luxury fleet, juxtaposition of the poor and the rich and other such matters if only remotely connected to the song. As the extreme of the spectrum could be a funny song about a toothbrush, or any other object completely unrelated to the underlying song. Just short of this extreme is the example of the music used to create a song with funny lyrics meant to raise awareness about the lack of the government’s attention to a socially important issue. In this case, the resulting “satire” still has nothing to do with the original song, other than it uses its music.

In the Campbell case, Justice Kennedy stated:

“…doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist. We should not make it easy for musicians to exploit existing works and then later claim that their rendition was a valuable commentary on the original. Almost any revamped modern version of a familiar composition can be construed as a ‘comment on the naiveté of the original’, because of the difference in style and because it will be amusing to hear how the old tune sounds in the new genre. Just the thought of a rap version of Beethoven’s Fifth Symphony or ‘Achy Breaky Heart’ is bound to make people smile. If we allow any weak transformation to qualify as parody, however, we weaken the protection of copyright. Any underprotection of copyright disserves the goals of copyright just as must as overprotection, by reducing the financial incentive to create.”

While Campbell is the leading case, the important thing is to realize that it did not resolve the question whether the creation by 2 Live Crew of a rap version of Roy Orbison’s song “Oh, Pretty Woman” was a parody excusable under the fair use doctrine. The U.S. Supreme Court specifically rejected the view that parodies are per se fair use, but found that the appeals court erred in its finding that the commercial nature of the parody made is presumptively unfair. It then remanded the case for further proceedings for the issue of whether the use was fair to be decided in the lower instance court.

Let’s think about the purpose of this exception for a moment. This purpose is understandable in the case of a narrowly interpreted parody that targets the work that is being parodied. Few authors would be happy about such use.

As an aside, one of the counterarguments to this assumption would be the example of Weird Al Yankovic who, according to the 2006 Gowers Review of Intellectual Property “has received 25 gold and platinum albums, four gold certified home videos and two GRAMMYs® by parodying other songs, but he had to ask permission from rights holders”. Somehow, the Gowers report was meant to prove that the parody exception is necessary and used the example of Weird Al to back up this proposition. In my paper, I wrote:

”Indeed, how can a special exception be necessary if there is a living example of an artist who sold 25 gold and platinum parody albums, but never had an urge to create unauthorized parodies? Does the report suggest that he would have sold more platinum albums if he was allowed to create parodies without asking permission? Or would his parodies be any better? Indeed, the example of Weird Al Yancovic clearly proves the contrary, that no special exception for parodies is necessary.”

So let’s go back to the purposes of the exception. Even though I disagree with the parody exception, I can at least understand why it could make sense, in certain circumstances, to allow people to create unauthorized parodies ridiculing the original work that is being parodied.

On the other hand, in the case of satire, I truly cannot fathom how the satire exception can meaningfully coexist with the right of the author to control the creation of derivative works based on the original. Yes, I am aware that there is no explicit right to create derivative works listed in the Copyright Act. However, this is implied in the reproduction right, which covers reproduction of a substantial part of the work.

In other words, if any work can be made into anything else under the pretense that it is satire without consent of the copyright owner, what would stop people from mechanically merging two works – for example, posting a youtube video using Justin Bieber’s “U Smile” (I had to google that one) over the still photograph of Joseph Robinette Biden’s smirk during the vice-presidential debate? Just that the dealing has to be fair?

Again, if fairness is the only thing left to prevent unauthorized use, then why have the Copyright Act at all? Why not just have one paragraph stating that “If a court is of the opinion that it would be unfair to use a work without the copyright owner’s consent, the copyright owner may prohibit unauthorized use of his work, but only to the extent that such prohibition would not be contrary to the best interests of the public?” Why have rights and exceptions? Why have categories and purposes?

The new exception would be able to serve as an excuse for virtually any unauthorized use of a work that has been modified into or merged with some other work. How about cracking the new Windows® 8 OS, changing the Windows® logo with an image of a half-eaten carrot, and uploading it to PirateBay claiming that, in fact, it is a permitted fair dealing with the software for the purpose of satire? How about scanning Michael Geist’s new book into text, replacing each and every occurrence of the words “user rights” with the word “communism”, and then printing and selling it on ebay? How about saving every episode of “Dragon’s Den”, and re-recording it at twice the speed – wouldn’t it be funny to listen to Mr. Wonderful’s voice an octave higher (unless viewed through a conveniently supplied player that plays the view at half the speed)?

BOTTOM LINE: This is a very dangerous amendment. Not only does it unnecessarily expands the scope of how one can use copyrighted works without consent, it does so without any meaningful objective, unless the objective is to make a parody of the Copyright Act by creating an exception that is so broad that it can serve as justification for virtually any infringement.

The parody and satire exception clearly violates the requirements of the 3-step test of the Berne Convention and Article 13 of TRIPS. In fact, it opens Canada (as it has opened Australia) up to claims under WTO dispute resolution mechanisms for adopting a law allowing a copyright exception that is overly broad and is not confined to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.