By Julie Nixon
(Artwork courtesy of resident artist Neil)
Last month Vince Cable, the business secretary, in response to the Hargreaves report revealed that UK copyright law would be changed to make “format shifting” legal, and allow more scope for parody and caricature. The changes were unveiled in a 52 page report entitled “Modernising Copyright”.
“Format shifting” is a term used to describe copying content from one technological format to another. Some examples of format shifting include making a copy of a music CD to store on an IPod, or making a DVD copy of a VHS tape of a film. Millions of UK consumers have been format shifting without realising that it is actually illegal.
The copyright exception relating to format shifting will only apply where material has been legally purchased for personal use.
However music companies submitted to Cable their misgivings in the changes, fearing that the new laws will adversely affect music sales. Their proposal for a levy, licence or tax on copying devices was rejected. The government believes the new changes will have a minimal impact on sales and a levy or tax would be unfair on consumers in the current economic climate.
UK laws surrounding parody are amongst the most stringent globally, placing the UK at a disadvantage for producing commercially valuable parody works. EU law provides that member states can introduce an exception for parody, pastiche or caricature in their national laws, but the UK currently provides no exceptions. In most cases copyright holders have the right to be identified as the creator of an original work, and can refuse permission for use of their work in a parody if they thought it would commercially disadvantage them in some way. The accused party in a copyright infringement case has to argue that the artistic integrity and financial well-being of the accuser is not harmed due to a parody, and the threshold for proving infringement in the UK is fairly low.
The Government will now legislate to allow limited copying on a fair dealing basis for parody, caricature and pastiche but existing protection for moral rights, including the right to object to derogatory treatment, will be maintained. Fair dealing of a work assesses the degree to which a use of the work competes with exploitation of the copyright work by its owner. If a use of a work acts as a substitute for it, and so affects its value, then it is less likely to be fair dealing. This consideration does not rule out fair dealing for a commercial purpose. It is unlikely that using a whole work would be considered fair dealing, but this does not rule out only part of a work being copied.
Critics however have argued that this will now mean that should a parody be commercially successful, the original author of the work will not benefit with the proceeds going to the creator of the parody.
Cable argues that the changes have “struck the right balance between improving the way consumers benefit from copyright works they have legitimately paid for, boosting business opportunities and protecting the rights of creators”.
Does this mean that Copyright law has acquired a sense of humour? Whether the entertainment industry, which is likely to be amongst the hardest hit by the changes, sees the funny side, remains to be seen.