UK reforms on private copying and parody come into force

Reforms to UK copyright rules that enable private copying, parodying and general quotation of copyrighted material to take place legally have come into force.

The Copyright and Rights in Performances (Personal Copies for Private Use) Regulations and Copyright and Rights in Performances (Quotation and Parody) Regulations were introduced into UK law on 1 October.

A number of other changes to UK rules on copyright exceptions were introduced earlier this year.

The new parody exception that has come into force creates a new 'fair dealing' right to use copyrighted material in works of caricature, parody or pastiche. UK courts have determined a number of factors for determining whether the use of a copyrighted work is 'fair', including an assessment of whether use of the copied material affects the market for the original work and whether the amount of the material copied is reasonable and appropriate.

The new quotation right allows copyrighted material to be quoted provided that "the work has been made available to the public, the use of the quotation is fair dealing with the work, the extent of the quotation is no more than is required by the specific purpose for which it is used, and the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)".

Quoting from a copyrighted performance or recording is also now permitted so long as "the performance or recording has been made available to the public, the use of the quotation is fair dealing with the performance or recording, and the extent of the quotation is no more than is required by the specific purpose for which it is used".

Previously using extracts of copyrighted material in the UK without rights holders' permission was restricted to defined purposes, including for use within news reports.

On the parody and quotation exceptions, copyright law expert Rebecca Mitton of Pinsent Masons, the law firm behind Out-Law.com, said: "The scope and impact of these new exceptions will ultimately come down to how the courts interpret the fair dealing proviso. As with the other fair dealing exceptions, an attempt will be made to strike a fair balance between the rights of the copyright owner and those seeking to make use of their work. The interesting question for businesses wanting to make use of third party works is the extent to which it can be considered fair dealing when the use is for commercial purposes, particularly in cases where reliance on the exception deprives the rights holder of an income stream."

"The recent case of Deckmyn gave helpful guidance in respect of parody, a concept which is new to English law. In that case the CJEU held that to fall within the parody exception, a work must 'fulfil a critical purpose; … show originality; display humorous traits; seek to ridicule the original work; and not borrow a greater number of formal elements from the original work than is strictly necessary in order to produce the parody'," Mitton said.

New guidance issued by the UK Intellectual Property Office (PDF) explained the circumstances in which copyrighted material may be used without rights holders' permission under the new parody exception, which also enables material to be used for the purposes of pastiche and caricature.

"In broad terms: parody imitates a work for humorous or satirical effect," the guidance said, "It evokes an existing work while being noticeably different from it. Pastiche is musical or other composition made up of selections from various sources or one that imitates the style of another artist or period. A caricature portrays its subject in a simplified or exaggerated way, which may be insulting or complimentary and may serve a political purpose or be solely for entertainment."

"Whilst parody does involve an expression of humour or mockery, it does not have to comment on the original work or its author. It can be used to comment on any theme or target," it said. The guidance made clear, however, that use of copyrighted material in line with the new parody exception will not be a defence against defamation caused by the parody works.

Under the new private copying exception, individuals in the UK have a new right to make a copy of copyrighted material they have lawfully and permanently acquired for their own private use, provided it is not for commercial ends. Making a private copy of the material in these circumstances is no longer an act of copyright infringement, although making a private copy of a computer program is still be prohibited under the new framework.

The introduction of the new private copying exception has been controversial. Earlier this year a parliamentary committee tasked with scrutinising the then-proposals warned that the UK may be found in breach of EU copyright rules if it did not include a mechanism for compensating rights holders fairly alongside its new private copying exception.

No such mechanism has been included in the rules now in force after the UK government said a private copying levy was unnecessary.

EU laws allow countries that introduce a private copying exception into national laws to do so without an associated mechanism for compensating rights holders where only minimal harm to rights holders would arise as a result of private copying activities.

Whilst the UK government has said it does not believe its private copying exception will result in lost sales for rights holders, UK Music has claimed that the reforms will cost musicians £58 million a year in lost revenues. In July the lobby group hinted that it may lodge a legal challenge against the introduction on a new private copying exception into UK law without a mechanism for compensating rights holders attached.

UK Music has confirmed to Out-Law.com that it is still considering its legal options at this stage.

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