Abstract The author Joshua Marshall, LLB, BCL (Oxon), solicitor, is part of the Intellectual Property and Technology Protection and Enforcement team of Fieldfisher LLP. This article This article analyses how the defence of fair dealing for the purposes of caricature, parody or pastiche, which may be utilized in proceedings for copyright infringement, can be balanced with an author’s moral right to object to derogatory treatment of the copyright work. Under the Copyright Designs and Patents Act 1988 (CDPA 1988), a defendant may plead specific defences to avoid liability for the infringement of an author’s moral rights, which differ from the fair dealing defences available in a claim for copyright infringement. Yet, certain adaptions or alterations of a copyright work, which the right to prohibit derogatory treatment guards against, are the very same acts which the defence for caricature, parody or pastiche seeks to excuse. This article will analyse whether the fair dealing defence of caricature, parody or pastiche ought to be extended to extinguish liability for infringement of moral rights or whether a work of caricature, parody or pastiche would likely fall short of infringing the Integrity Right. Introduction The moral rights belonging to an author are enshrined in Chapter IV of the Copyright Designs and Patents Act 1988 (CDPA 1988). There are three main rights: (i) the right to be identified as the author of a literary, dramatic, musical or artistic work (‘LDMA’) or as the director of a film (‘the Paternity Right’); (ii) the right to object to the derogatory treatment of a LDMA or a film (‘the Integrity Right’) and (3) the right not to have a LDMA or a film falsely attributed to oneself as the author or director (‘the False Attribution Right’).1 The CDPA seeks to give effect to Article 6bis of the Berne Convention which sets out a minimum standard of protection for moral rights.2 Moral rights differ from the exclusive economic rights of a copyright owner3 in that they are personal rights which are inalienable and, instead, reside with the author of the LDMA or the director of a film.4 An author may waive his moral rights. Similarly, it is a condition precedent of the Paternity Right that the author positively asserts it.5 However, moral rights cannot be assigned, licensed or otherwise transferred to a third party in the same way a copyright can. As such, the proprietor of a relevant copyright work is unable to assert the right of attribution or object to derogatory treatment of a work unless they authored the work in question.6 This article will focus, specifically, on the Integrity Right: the author’s or director’s right to object to derogatory treatment of the work.7 In October 2014, section 30A of the CDPA 1988 came into force. Pursuant to that section, fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe the copyright in that work. This new defence was the result of extensive lobbying.8 The wording adopted by UK legislature incorporated the defence set out in Article 5(3)(k) of the Information Society Directive into the UK’s fair dealing paradigm.9 However, the wording in the CDPA 1988 is more limited than that contained in the Directive because, under the UK law, the defendant’s use of the original copyright work must fall within ‘fair dealing’ with the original work. The defence only applies where the defendant carries out one of the acts which are exclusive to the copyright proprietor, thus infringing the copyright in the work. As such, the defence is not available where a defendant is alleged to have infringed an author’s Integrity Right. On its face, this creates a legal paradox. On the one hand, the defendant’s liability for copyright infringement may be extinguished where their treatment of the original copyright work, for the purpose of caricature, parody or pastiche, is fair. Parliament determined that, in such instances, the acts of the defendant should be excused from triggering liability. On the other hand, an author has a right to object to any treatment of their copyright work which has a derogatory effect. Liability for infringement of the Integrity Right is not extinguished. Therefore, it may be possible for the same act to be excused from copyright infringement, but still trigger a cause of action for infringement of the Integrity Right. The causes of action carry the same injunctive and pecuniary relief. The factual matrix remains the same. Yet the defendant's acts may be both condoned and condemned. This article will critically assess to what extent this prima facie paradox really does exist. It will consider whether the defence provided under section 30A of the CDPA 1988 should be extended to the Integrity Right. It will also consider to what extent any such reform is necessary in light of the case law interpreting the Integrity Right and the circumstances in which it is infringed by a defendant. The Integrity Right Pursuant to Article 6bis of the Berne Convention, an author has the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to their work, which would be prejudicial to their honour or reputation. Although not defined in Article 6bis, the concepts of ‘honour’ or ‘reputation’ represent the same kind of personal interests which are protected by actions for defamation in common law jurisdictions.10 In civil law jurisdictions, these concepts incorporate not only the author’s objective reputation, which may be determined by territorial cultures and values, but also the subjective idea, concept or image the author seeks to project through their work.11 Whilst copyright infringement is a strict liability tort, in that the consequences of the wrong go to the remedy awarded, the consequences of the defendant's acts are relevant to establishing liability for infringement of the Integrity Right. Put another way, harm is a necessary component to a claim of infringement of the Integrity Right. Section 80 of the CDPA 1988 defines the Integrity Right as the right of the author of a LDMA and the director of a film to object to having their work subjected to derogatory treatment. ‘Treatment’ is defined as any addition to, deletion from or alteration to or adaptation of the work.12 Certain acts are excluded from the definition of ‘treatment’. For example, the translation of a literary or dramatic work, or an arrangement or transcription of a musical work involving no more than a change of key or register, will not constitute ‘treatment’.13 It has been suggested that the treatment of the work must be more than minor or trivial, meaning the cause of action carries a de minimis threshold.14 Others argue that the materiality of the treatment is addressed through the requirement that the treatment be ‘derogatory’.15 However, that analysis simply shifts the de minimis threshold to an alternative component of the wrong. Fundamentally, it appears to be accepted that for the defendant's acts to constitute ‘treatment’, there must be interference with the structure or composition of the copyright work.16 The UK courts have adopted a broad, general concept of what constitutes ‘treatment’ of the original work, providing a flexible approach to determine the factual matrix of each case.17 Once it is ascertained that there has been treatment of the original copyright work, that treatment must be ‘derogatory’. The treatment of a work is ‘derogatory’ if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.18 Broadly speaking, a work is distorted where it is twisted, implying some sort of transformative or perverse use. Mutilation occurs where the work is cut, altered or adapted so as to render the work an imperfect version of its original form. In Confetti Records v Warner Music,19 the High Court held that these are not consequences of the treatment which are distinct from the prejudice caused to the honour or reputation of the author. Rather, it was held that, to trigger liability, any distortion or mutilation must also prejudice the author’s honour or reputation.20 As stated, under the UK law, whether the honour or reputation of the author is prejudiced, is assessed on an objective basis.21 This is consistent with the common law approach to determining whether a communication is defamatory: the subjective value the claimant places on their honour or reputation is irrelevant.22 This differs from other jurisdictions, such as Canada, which adopts a more subjective approach.23 One issue yet to be considered by the UK courts is to what extent the Defamation Act 2013 has affected the assessment of whether the treatment of a work is prejudicial to the author’s reputation. Pursuant to that statute, a communication is not ‘defamatory’ unless it causes, or is likely to cause, serious reputational harm or, in the case of a body that trades for profit, serious financial loss.24 It is debatable whether this higher threshold should percolate down so as to raise the threshold to whether a defendant’s treatment of a work prejudices the author’s reputation. Mere derogatory treatment of a work is not sufficient to trigger liability. Rather, the Integrity Right is infringed through commercial publication or performance, issuing copies to the public or generally communicating the copy to the public.25 Effectively, this covers any dealing in the infringing work by the defendant. The CDPA 1988 does contain specific and narrowly drafted defences so as to excuse liability for infringement of the Integrity Right in limited circumstances. The treatment of computer programs or computer generated works is expressly excluded.26 Arguably, this makes sense as the improvement and modernization of computer programs require adaptions to be made to the coding, which would require the consent or waiver of each author who worked on the program so as to avoid infringing the Integrity Right. However, a better view may be that such treatment would not meet the threshold of ‘derogatory’ and therefore a claim would not be made out in any event, making the defence somewhat redundant. Treatment of the work for the purpose of reporting current events is also excluded.27 Similarly, the publication of a newspaper, magazine or similar periodicals or an encyclopaedia, dictionary, yearbook or collective work of reference or a LDMA will not trigger liability where the secondary work was made for the purpose of publication or was made available with the consent of the author of the original work for the purposes of such publication. The rationale for the Integrity Right The underlying rationale for the existence of an Integrity Right has a closer affinity with the droit d’auteur approach to copyright works adopted in civil law jurisdictions. It invokes a romanticized idea that in creating the work, the author has embodied some element of their personality in the copyright work which ought to be protected from distortion or mutilation.28 The work becomes an extension of the self. This rationale supplements the view that the originality in a LDMA copyright work resides in the author’s intellectual creation,29 comprising the author’s personality30 or personal touch,31 embodied in the author’s free, creative choices.32 It also fits neatly with the idea–expression dichotomy which subsists in the UK law, whereby only an author’s expression embodied in an original LDMA work may be protected, not the underlying concept or idea.33 The author, therefore, has some interest in the copyright work which extends beyond the purely economic and, instead, resides in the underlying meaning, purpose or statement made by the author in creating the work.34 The copyright work is impregnated with the author's originality and this should be respected and protected from deformity. In spite of this, it is less obvious why the integrity right may be asserted by the director of a film given that, in order for copyright to subsist, the film must not be copied from a previous film.35 Indeed, no originality requirement exists for any of the entrepreneurial rights under the UK law.36 Therefore, it is curious that a work which, under the UK law, is treated as entrepreneurial rather than authorial should give rise to the Integrity Right. Article 2 of the Berne Convention defines ‘literary and artistic works’ to include every production in the artistic domain, whatever the mode or form of its expression including ‘cinematographic works’. The protection of cinematographic works as original works is now enshrined in Article 14bis of Berne. The UK’s approach to protecting films as copyright works has been categorized as a hybrid between authorial and related rights or, what Arnold J refers to as, signal and content rights.37 Therefore, it is the unusual treatment of films under the UK law which makes the attachment of moral rights slightly unorthodox. In other civil law jurisdictions, and as envisaged under Berne, a film is on all fours with other authorial copyright works. The recognition of economic and moral rights as separate and distinct from one another reflects the dualist theory of copyright law. These rights may be exploited separately and seek to protect different interests. Party A may own the copyright in a LDMA or film, providing certain rights to the exclusion of third parties, whilst Party B simultaneously holds moral rights in the same work which may be enforced against Party A or any third party. The dualist theory of copyright is prevalent in France. By contrast, other civil jurisdictions such as Germany have, traditionally, favoured a monistic theory of combined rights.38 Here, the exclusive rights in a copyright work serve both the economic and personal or moral interests in the work through a unitary right. The rights are not distinct or separable. Fair dealing for caricature, parody or pastiche and the rationale Section 30A of the CDPA 1988 provides that fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work. Under the UK law, there is yet to be a judgement on whether (i) caricature (ii) parody and (iii) pastiche, are discrete terms which excuse different acts, or whether each is a variant of the other. In giving his Opinion in Deckmyn v Vandersteen, Advocate General Cruz-Villalón viewed the terms as having the same effect of derogating from the copyright of the author of the original work.39 One view is that the three concepts cannot be distinguished. Indeed, others have argued that any formal difference which can be identified in the wording should bear no legal consequence.40 However, whilst there is significant overlap, there are also specific distinctions which can be drawn out for each concept. Indeed, a work may be properly defined as a caricature but struggle to fit the definition of parody or pastiche, and vice versa. The characteristics of each class of work differ. Caricature works The dictionary definition of ‘caricature’ is a picture, description or imitation of a person in which certain striking characteristics are exaggerated in order to create a comic or grotesque effect.41 Neither the UK courts nor the Court of Justice of the European Union (CJEU) have yet reuled on the interpretation of the term ‘caricature’ or what subject matter falls within its scope. On a day-to-day basis, we may encounter caricatures in the pages of broadsheet newspapers as satirical illustrations targeting topical issues or at events where caricaturists may be hired to entertain guests. However, there is no reason why a caricature could not also target buildings, for example, the Houses of Parliament or the White House, by exaggerating the features to present an image of weakness, rigidity or hostility. Caricatures may also target ideologies such as the Conservative Party, Christianity or Capitalism. It is submitted that there are at least two essential qualities of a caricature. The first is that the caricature itself must be static or fixed. A dynamic work such as a film, play or song would be better described as a parody or pastiche work (see Parody Works below). Although the dictionary definition of caricature includes an imitation, unless the imitation were static it should be viewed as a parody not a caricature. The second is that the caricature must be a visually graphic image. A parody or pastiche work may include song or written words. By contrast, a caricature should be embodied in an image and experienced through sight rather than sound. Parody works The dictionary definition of ‘parody’ is a composition in prose or verse in which the characteristic turns of thought and phrase of an author or class of authors are imitated in such a way as to make them appear ridiculous, especially by applying them to ludicrously inappropriate subjects; an imitation of a work more or less closely modelled on the original, but so turned as to produce a ridiculous effect.42 In Deckmyn, the CJEU held that the essential characteristics of parody are (i) to evoke an existing work while being noticeably different from it, and (ii) to constitute an expression of humour or mockery.43 The CJEU held that, the concept of ‘parody’ should not be subject to the conditions that (i) the parody need to display original character of its own, (ii) it be reasonably attributed to a person other than the author of the original work itself or (iii) it relate to the original work itself or mention the source of the parodied work. It was further stated that, whilst a parody is an appropriate way to express an opinion, a balance must be struck between the rights and interests of the author and freedom of expression.44 From an intellectual property perspective, parodies are of interest because, to be successful, the audience must be able to identify the original parodied work and decipher the intended meaning of the parody through noticeable differences. Whilst the CJEU expressly stated that the parody need not be reasonably attributable to a third party, as opposed to the author of the original work,45 this conclusion is questionable. If the parody is not reasonably attributable to a third party, the only conclusion the recipient can reach is that the parody was authored by the same author of the original parodied work. However, very few authors produce parodies of their own copyright works. The presumption, therefore, is that the parody was authored by a third party or, at best, as collaboration between the original author and a third party. The possibility for the recipient to view a parody as authored by the same author of the parodied work reduces the ability of the parody to communicate humour or mockery. Put another way, the parody is more likely to be viewed as a serious copyright work because, at a practical level, few authors mock themselves or their works. Therefore, it is submitted that a parody should be reasonably attributable to a third party.46 Indeed, Jacques argues that a parody must resemble the original work closely enough for the underlying work to be recognized by the public, while being different enough to avoid confusion as to whether the parody relates to or was authorized by the original author of copyright proprietor.47 The subsistence of confusion indicates that the parody has failed. As such, a parody should be reasonably attributable to a third party. In the USA, academic writing and legal doctrine has distinguished at least two classes of parody. The first is ‘target parody’. Here, the parody is aimed at the original work, the philosophy underpinning the original work or the wider social or moral implications of the original work or a work of that kind.48 The second is ‘weapon parody’. Here, the parody is aimed at another work, another individual, another ideology or wider social norms or moral values. Prior to the introduction of section 30A of the CDPA 1988, the UK law shoehorned both classes of parody into section 31(1) which permits fair dealing for the purpose of criticism or review. This strained the natural meaning of criticism or review in situations where the parody was not intended to criticize rather than project humour. Where a weapon parody was deployed, it was also debatable whether such use of the original work should fall within the fair dealing paradigm which exists under the UK law.49 Pastiche works The dictionary definition of ‘pastiche’ is an artistic work in a style which imitates that of another work, artist or period.50 Hudson further defines ‘pastiche’ as laudatory and non-critical imitation, such as creating a new work in the style of another artist or genre.51 Pastiche works make no attempt to ridicule, lampoon or satirize the copied work, or comment critically on that work or another theme.52 On this basis, it is clear that pastiche is materially different from a caricature or parody in that the latter categories of work are a consequentialist means to achieving an end, usually humour, mockery or ridicule. By contrast, a work of pastiche may be considered an end in itself presented in a style which imitates that of another. Whilst all three types of work involve imitation in one form or another, the underlying purpose of each work and what meaning they are intended to communicate to the recipient of the work will differ. Fair dealing In order to fall within section 30A, the defendant’s use of the original copyright work must amount to fair dealing. The concept of ‘fairness’ is determined objectively: whether a fair minded, honest person would have dealt with the copyright work in the manner which the defendant did.53 In the USA, fair use of a copyright work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright.54 The US Copyright Act goes on to list factors which are to be considered in assessing whether the use of the work is fair: (i) the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the copyrighted work; (iii) the amount and substantiality of the portion used in relation to the copyright work as a whole and (iv) the effect of the use upon the potential market for or value of the copyrighted work. In the UK, there is no statutory framework for what constitutes ‘fair dealing’ with a copyright work. Rather, the common law has mapped out various factors which may be indicative of fair dealing, albeit each case is to be determined on its facts. The most important factors55 include: (i) the degree to which the infringing use competes with the exploitation of the copyright work, albeit the infringing use need not be devoid of commercial value;56 (ii) whether the copyright work has been published or not57 and (iii) the extent of the use and importance of what has been taken.58 Other relevant factors may also be taken into consideration by a court, including the underlying purpose of the defendant’s use or whether use of the copyright work was, in fact, necessary for the defendant’s purpose. As mentioned, the UK courts are yet to hand down judgment in a case in which section 30A of the CDPA 1988 has been relied upon. As such, it is not clear what additional factors, if any, a court will take into consideration when determining whether the use of a copyright work for the purpose of caricature, parody or pastiche will be fair dealing. By contrast, the US ‘fair use’ doctrine has been applied in several cases involving parodies, focusing on the purpose and commercial nature of the parody, the substantiality of the material taken and the economic effect of the parody on the original copyright work, either by displacing it in the market or causing a diminution in value.59 The academic literature focuses, primarily, on parody works rather than specifically addressing caricature or pastiche works. However, there are at least three common arguments for justifying fair dealing: (i) the purpose of the caricaturist, parodist or pastiche artist; (ii) the effects of the caricature, parody or pastiche work on the copyright work and (iii) a lack of confusion on the part of the recipient as to the parody and the parodied work. In Deckmyn, the CJEU stressed that the essential characteristic of a parody is an expression of humour or mockery, whilst stating that it was for the national court to determine whether the parody has other qualities, such as discriminating on grounds of race, colour or ethnic origin.60 From an economic perspective, Posner argues that a defence of fair use should only apply where the parody uses the parodied work as the target and that the parody should not take so large a fraction of the original work as to become a substitute for it, stressing that the parody should not replace demand for the parodied work.61 Rutz argues that a parody should not infringe provided its transformative use of the copyright work outweighs any commercial motive.62 Of course, one issue with these justifications is that they invite a qualitative assessment of the parody in question, which is something copyright doctrine often seeks to avoid.63 Similarly, the writers do not, expressly, deal with caricatures or pastiche works. It may be that other relevant factors ought to be taken into consideration when assessing whether such works make fair use of the original copyright work. The potential conflict So far, we have seen that the UK operates a dualist system of copyright, whereby the creation of a single work may trigger copyright to protect economic interests in the work and moral rights to protect the personal interests of the author. Within this dualist system, the CDPA 1988 sets out specific defences which excuse the infringement of either right. It is possible for the same acts carried out by a defendant to infringe both the copyright and Integrity Right in a single work. A claimant may issue legal proceedings pleading both causes of action. However, as set out above, section 30A of the CDPA 1988 does not excuse liability for infringement of an author’s moral rights. Therefore, it is plausible that liability for copyright infringement is excused where the infringing work comprises fair use of the original work for the purposes of caricature, parody or pastiche, but the defendant remains liable for infringing the claimant’s Integrity Right by subjecting the original work to derogatory treatment. This is somewhat paradoxical. Doctrinally, a defence is intended to extinguish liability in circumstances where it has been determined that otherwise infringing acts should be excused.64 Those circumstances may reflect political, economic or practical considerations. Parliament clearly intended that fair dealing with a copyright work for the purpose of caricature, parody or pastiche should be excused. Indeed, it was this intention that led to the enactment of section 30A of the CDPA 1988. Yet the same acts and factual context which trigger section 30A is not excused from infringing the author’s moral rights. This is an issue given the same injunctive and pecuniary remedies are available for both causes of action. By way of example, a caricature of a copyright work would need to alter and adapt the original so as to exaggerate its features, amounting to ‘treatment’. It is likely that such treatment would distort or mutilate the original work and, as such, expose the original author to ridicule, making the treatment ‘derogatory’. Similarly, for a parody to be effective, the recipient of the parody should be able to perceive its relation to the original work whilst attributing the parody to a third party.65 The parody may add to or adapt the original work. This constitutes ‘treatment’. That treatment may be deemed prejudicial to the reputation of the author by exposing them to contempt or ridicule, making that treatment ‘derogatory’.66 Thus, the Integrity Right is infringed. By contrast, if a parody merely copies the artistic style of the original work, the use made of the original work would rarely amount to ‘treatment’.67 It is more difficult to envisage situations in which a pastiche work would infringe the Integrity Right. This is because, by its very nature, a pastiche work is a laudatory imitation of a style and makes no attempt to ridicule, lampoon or satirize the copied work, or comment critically on that work or another theme. As such, it is unlikely a pastiche work would involve ‘treatment’ of the original work and even less likely that any such treatment would be ‘derogatory’. This serves as another example of how caricature, parody and pastiche works can be distinguished from one another and why each should be treated as a separate category of work. It is worth mentioning that the Integrity Right stems from the Berne Convention which is an international agreement. By contrast, section 30A stems from the Information Society Directive, a piece of European Union (EU) legislation.68 As such, the defence for the purposes of caricature, parody or pastiche is harmonized across those Member States that have elected to implement Article 5(3)(k) of the Information Society Directive into national law. Similarly, the CJEU has jurisdiction to provide interpretive clarification on the meaning and scope of the defence. By contrast, the moral rights regime is not harmonized and, instead, is governed through the national law of each Berne Convention signatory state. Prior to enacting section 30A of the CDPA 1988, the Government’s response to consultation on the copyright exceptions was that the existence of a parody defence should not alter an author’s moral rights or vice versa. Indeed, it emphasized that respect for moral rights could be a factor in whether an act is to be considered to be fair dealing.69 This is one way of extinguishing the paradox identified above: a corollary of the caricature, parody or pastiche work amounting to derogatory treatment of the original work is that the use made of the original copyright work will fall outside of definition of ‘fair dealing’. Can derogatory treatment constitute fair dealing? To reiterate, pursuant to the judgment in Confetti Records, the treatment of a work will be derogatory and, therefore, infringe the Integrity Right where it is prejudicial to the honour or reputation of the author or director, whether by distorting or mutilating the work or otherwise.70 Courts have persistently insisted that claimants must prove damage to reputation in the eyes of third parties.71 It is not sufficient to argue distortion or mutilation of the original work per se. One view is that the paradox resulting from the conflict between section 30A of the CDPA 1988 and the Integrity Right is easily addressed. A caricature, parody or pastiche work which is prejudicial to the honour or reputation of the author or director of the original copyright work, thus infringing the Integrity Right, is unlikely to constitute fair dealing. If this is the case, section 30A would not apply. Indeed, the purpose of the infringing work and its effect on the original copyright work is in issue where prejudice is caused to the honour or repute of the author or director. Prejudice to an author's reputation may, for example, be caused where the original copyright work can no longer be experienced without calling to mind the infringing work.72 Alternatively, the caricature, parody or pastiche work may undermine the intended meaning of the original and, in so doing, subject the author of the original to ridicule. On this analysis, where such prejudice is caused, section 30A of the CDPA 1988 would not apply as the use made of the original work would not fall within the fair dealing paradigm. Liability for copyright infringement would, therefore, remain on all fours with infringement of the Integrity Right. Where section 30A did apply, it would be unlikely that any prejudice would be suffered by the author as a result of the caricature, parody or pastiche work, meaning the claim for infringement of the Integrity Right would not be made out. Thus, there is no conflict between section 30A and the Integrity Right and, therefore, no paradox. As such, section 30A of the CDPA 1988 does not need extending so as to provide a defence to infringement of moral rights. The difficulty with this analysis is that it ignores the different interests which copyright and moral rights seek to protect. As stated earlier, copyright protects the economic interest of the copyright proprietor in the work. The fair dealing paradigm, therefore, focuses primarily on the economic interests in the work and whether the defendant's acts interfere with these interests. This is clear from the relevant factors taken into consideration by the Court in determining whether the defendant's use constitutes fair dealing. By contrast, moral rights seek to protect the personal interests of the author in the work beyond its economic value as a chose in action. The Integrity Right goes further than guaranteeing exclusive rights in an intangible asset. It seeks to preserve the work as an end in itself. On this construction, it is feasible to successfully plead a defence to copyright infringement under section 30A of the CDPA 1988 and also infringe the Integrity Right. For example, a caricature, parody or pastiche work may constitute fair dealing with the original. It may not compete with the original copyright work; the extent and importance of what was copied may be reasonable and no diminution in the value of the original work may be caused. The copyright owner’s economic interests are preserved. However, the same caricature, parody or pastiche work may cut, adapt or alter the original work in such a way as to distort or mutilate the work and prejudice the honour or repute of the author. For example, the infringing work may be so widely disseminated that it becomes iconic and is brought to mind wherever a consumer happens across the original copyright work. It may undermine the sincerity of the author in creating the copyright work or present the author as pompous, hypocritical or conceited. Provided the economic interests of the copyright owner are not interfered with, such use of the copyright work for the purposes of caricature, parody or pastiche will likely amount to fair dealing. At the same time, the author’s Integrity Right would likely be infringed. The distinction between copyright and moral rights is even more prevalent when one considers that the respective rights may be held by different entities. A caricature, parody or pastiche work may constitute fair dealing in the sense that the copyright in the original work may be held by a corporate entity. Where that entity has no interest in the work beyond its commercial exploitation, a defendant which carries out acts exclusive to the copyright proprietor by creating a caricature, parody or pastiche work may not interfere with that commercial exploitation. Thus, the dealing with the original work is fair. However, the original author can still assert their Integrity Right to protect the sanctity of the work itself and, by extension, their own honour and/or reputation. Having parted with the copyright in the work, the author may have no interest in its commercial exploitation. Therefore, acts which are deemed to constitute fair dealing in relation to the corporate entity’s commercial interests may still constitute derogatory treatment in relation to the author’s Integrity Right. The defendant’s copyright infringement may be excused whilst liability for infringing the Integrity Right remains. Under this analysis, the paradox very much exists. The same acts which are excused from copyright infringement are not excused from infringing the Integrity Right. An alternative means of navigating around this paradox is as follows. In Deckmyn, the CJEU held that the application of the defence under Article 5(3)(k) of the InfoSoc Directive must strike a fair balance between the interests of the rightsholder and the user of the copyright work.73 In so doing, a national court must bear in mind the legitimate interest of the rightsholder not to have the copyright work associated with a discriminatory message.74 Rosati argues that this ‘legitimate interest’ extends to moral rights and, in particular, the Integrity Right.75 As such, where an author’s legitimate interest in not having the original copyright work associated with a discriminatory message is compromised, thus infringing the Integrity Right, the defence under section 30A of the CDPA 1988 would not apply. Therefore, liability for copyright infringement and infringement of the Integrity Right would remain. The paradox dissolves. However, this analysis is also insufficient. The Integrity Right merely requires prejudice be caused to the honour or reputation of the author as a result of treatment of the original copyright work. These consequences are less severe and, therefore, the threshold is lower than where the caricature, parody or pastiche conveys a discriminatory message. In order for the legitimate interests of the author to extend to preserving the Integrity Right, the scope must also encompass consequences which sit lower on the spectrum of severity. Yet there is nothing in the CJEU’s judgment to suggest that that is what they intended. On the contrary, they were specifically addressing the issue of discrimination on grounds of race, colour and ethnic origin. Furthermore, balancing a ‘legitimate interest’ of the rightsholder when applying a copyright defence means we are still operating within the realms of economic rights. The legitimate interest of the rightsholder is more relevant to the fair dealing paradigm in section 30A of the CDPA 1988 than any moral rights in the work itself. Lastly, as discussed above, the rightsholder may be a different entity to the author of the copyright work meaning their legitimate interests in the copyright work will differ from the interests of the author. As such, it is difficult to stretch the CJEU’s judgment to cover the Integrity Right. The paradox remains. A paradox or different interests? Another means of resolving this potential paradox is to fully concede the different interests which copyright and moral rights seek to protect under the dualist system. As stated, copyright protects the proprietor’s economic interests in the work where the Integrity Right protects the author’s personal interests in the work itself. Whilst the underlying work is the same, the respective interests differ. As such, the rights differ. The relevant components necessary to make out a claim for infringement of the respective rights differ. What’s more, the entities seeking to enforce those rights may differ. It is, therefore, hardly surprising that the defences to liability under each cause of action will differ. Whilst fair dealing for the purposes of caricature, parody or pastiche is excusable in relation to copyright infringement, the same acts are not excusable in relation to infringement of the Integrity Right where a claim is made out. If this is correct, there is no paradox. This analysis is bolstered by the Opinion of the Advocate General in Deckmyn, which made clear that the infringement of moral rights was left to the national courts and fell outside the scope of the InfoSoc Directive.76 Indeed, Recital 19 of the InfoSoc Directive states indeed that ‘[t]he moral rights of rightholders should be exercised according to the legislation of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, of the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. Such moral rights remain outside the scope of this Directive.’ It is clear that the defence of use for the purpose of caricature, parody or pastiche, as contained in the InfoSoc Directive, was never intended to excuse the infringement of moral rights. As the Directive seeks to ensure competition in the internal market through harmonizing copyright and related rights in Member States, the focus is on economic interests. However, the problem with this analysis is that it ignores the fact that Member States have the option of implementing Article 5(3)(k) of the InfoSoc Directive. It is not a compulsory defence aimed at achieving a minimal level of harmonization across the EU. Therefore, it is not essential to the efficient functioning of the internal market. What’s more, the UK modified Article 5(3)(k) to fit it within the fair dealing paradigm. As such, the fact that the defence originated from a Directive which is aimed solely at copyright does not mean its implementation in the UK could not, or should not, extend to the Integrity Right. The UK varied the scope of the defence when implementing it into national law, meaning it could have easily been expanded so as to cover the Integrity Right. As stated by the CJEU, governance of moral rights is a matter for national law. Therefore, the source of the defence is not determinative of its scope and application in national law. The second issue with trying to dissolve the paradox by distinguishing the economic nature of copyright from the personal nature of moral rights is that it hinges on the justification for implementing section 30A of the CDPA 1988. If the justification is that the copyright proprietor’s economic interests in the copyright work are not adversely affected by fair dealing with a copyright work for the purposes of caricature, parody or pastiche, distinguishing moral rights and copyright may be satisfactory. However, it is not clear that the justification for the defence is so limited. Indeed, in the Government’s consultation paper it was stated that parody works have a profound effect on the development of new creators, providing a net benefit to the cultural industries, the development of free speech and the fostering of creative talent.77 Others have stated that parodies make a positive contribution to society through wider dissemination of cultural works whilst reflecting positively on the parodied work.78 Caricature, parody and pastiche works are beneficial because they enrich society with creative works. This is one of the underlying justifications for the copyright system as a whole. Therefore, it appears that section 30 A excuses liability for copyright infringement, in part, due to the societal benefits of caricatures, parodies and pastiche works. The logical question, therefore, is why not extend the defence to the Integrity Right? If caricatures, parodies and pastiche works benefit society, why not excuse liability for infringement of the Integrity Right? Why does the paradox subsist? Conclusion This article has analysed the potential conflict between section 30A of the CDPA 1988, which extinguishes liability for copyright infringement where the defendant has made fair use of the original copyright work for the purposes of caricature, parody or pastiche, and the Integrity Right which permits an author or director of a film to object to derogatory treatment of the copyright work. On the one hand, Parliament intended to excuse otherwise infringing acts by introducing a fair dealing defence which permitted caricature, parody or pastiche works. On the other hand, the same acts would, arguably infringe the Integrity Right, triggering a cause of action that carries the same relief. On its face, this creates a legal paradox. One argument is that, to qualify as derogatory treatment of the original copyright work, the acts of the caricaturist, parodist or pastiche artist are highly likely to fall outside the remit of fair dealing. If the same acts are within the realms of fair dealing, it is highly unlikely they would amount to derogatory treatment. However, this ignores the fact that fair dealing considers the economic interests of a copyright proprietor rather than the personal interests of the author in the copyright work. It is possible that the alleged infringing work falls within the fair dealing paradigm but still amounts to derogatory treatment. The fact that the copyright owner may be a different entity to the author seeking to enforce their Integrity Right reinforces this point. Another argument is that, in balancing the legitimate interests of the copyright owner in not being associated with certain messages conveyed by the infringing work, courts may give weight to the Integrity Right. However, the copyright owner’s legitimate interests are fundamentally economic and there is nothing to suggest that the CJEU intended to extend this to the author’s interest in the work itself. It may be argued that, once we recognize the different nature of copyright and moral rights, there is no paradox as the rights differ and seek to protect different interests, thus the defences available to an infringer differ. The issue with this analysis is that, once it is recognized that caricatures, parodies and pastiche works have social value and that, provided the defendant is within the fair dealing paradigm, such works should be excused from copyright infringement, it is not clear why infringement of the Integrity Right should not also be excused. If the caricature, parody or pastiche work makes use of the original copyright work in a manner which constitutes fair dealing, liability for copyright infringement and infringement of the Integrity Right should be excused. It is not clear why a paradox should exist. Footnotes 1 ss 77–84 of the CDPA 1988. 2 Berne Convention for the Protection of Literary and Artistic Works as amended on 28 September 1979. 3 As set out in s 16 of the CDPA 1988. 4 s 94 of the CDPA 1988. 5 s 78(1) of the CDPA 1988. 6 The right to object to false attribution applies whether or not the party asserting the right is an author. 7 s 80 of the CDPA 1988. 8 See, for example, A. Gowers, Review of Intellectual Property (HM Treasury 2006) 6, Recommendation 12, recommending such a defence be implemented by 2008 and Professor Ian Hargreaves, Digital Opportunity: A Review of Intellectual Property and Growth (published 18 May 2011, Department for Business, Innovation and Skills) 51, recommending a parody defence. 9 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society  OJ L167, 22 June 2001 (‘the InfoSoc Directive’). 10 I Stamatoudi, ‘Moral Rights of Authors in England: the Missing Emphasis on the Role of Creators’ (1997) 4 IPQ 478, 481. 11 This is particularly the case under the equivalent French and German legislation. 12 s 80(2) of the CDPA 1988. 13 ibid. 14 Harrison v Harrison  EWPCC 3 . 15 G. Davies and K. Garnett QC, Moral Rights (2nd edn, Sweet and Maxwell 2016) para 8-013. 16 Laddie, Prescott and Vitoria, The Modern Law of Copyright and Designs (4th edn, Lexis Nexis 2011) para 27.7. 17 See the judgment of HHJ Fysh QC in Harrison v Harrison  FSR 25 . 18 ibid. 19 Confetti Records v Warner Music UK Limited  EWHC 1274 (Ch). 20 ibid . See also Pasterfield v Denham  FSR 168. 21 Tidy v Trustees of the Natural History Museum  EIPR D-86; Pasterfield v Denham, ibid. 22 Confetti Records & Anr v Warner Music UK Ltd  EWHC 1274 (Ch) –. 23 Snow v The Eaton Centre (1982) 70 CPR (2d) 105 (Canada). 24 See s 1 of the Defamation Act 2013. 25 s 80(3)–80(6) of the CDPA 1988. 26 s 81 of the CDPA 1988. 27 ibid. 28 A Dietz, ‘The Artist’s Right of Integrity under Copyright Law’ (1994) 25 IIC 177, 181. 29 See eg Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 to approximate the laws on the legal protection of computer programs  OJ L111/16, 5 May 2009 (‘the Software Directive’); Directive 96/9EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of database  OJ L77/20, 27 March 1996 (‘the Database Directive’); Directive 2006/116/EC of the European Parliament and of the Council of 12 December 2006 on the term of protection of copyright and certain related rights  OJ L372, 27 December 2006 (‘the Term Directive’), and ‘the InfoSoc Directive’ as discussed in Case C-5/08 Infopaq International A/S v Danse Dagblades Forening  ECLI:EU:C:2009:465. 30 See Recital 16 of the Term Directive. 31 Case C-145/10 Eva-Maria Painer v Standard Verglas GmbH and Ors  ECLI:EU:C:2011:798. 32 Infopaq International A/S (n 29). 33 See the judgment of Lord Hoffmann in Designers Guild Ltd v Russell Williams (Textiles) Ltd  UKHL 58. 34 J Ginsburg, ‘Moral Rights in a Common Law System’ (1990) 1 (4) Entertainment L Rev 122. 35 s 5B(4) of the CDPA 1988. 36 Specifically, sound recordings, films, broadcasts and typographical arrangements. 37 R. Arnold, ‘Content Copyrights and Signal Copyrights: The Case for a Rational Scheme of Protection’ (2011) 1 (3) QMJIP 272. 38 Davies and Garnett (n 15) para 3-002 to 3-003. 39 Cruz Villalon AG, Case C-201/13 Deckmyn v Vandersteen and Ors  ECLI:EU:C:2014:458, Opinion of the AG, . 40 J. Cabay and M. Lambrecht, ‘Remix Prohibited: How Rigid EU Copyright Laws Inhibit Creativity’ (2015) 10 (5) JIPLP 359. 41 See the definition in the Oxford English Dictionary. 42 See the definition in the Oxford English Dictionary. 43 Deckmyn (n 39) . 44 ibid –. 45 ibid . 46 See S. N. Light, ‘Parody, Burlesque and the Economic Rationale for Copyright’ (1979) 11 (4) Conn L Rev 615, 616. 47 S. Jacques, ‘Are the New ‘Fair Dealing’ Provisions an Improvement on the Previous UK Law, and Why?’ (2015) 10 (9) JIPLP 699, 702. 48 R Deazley, ‘Copyright and Parody: Taking Backward the Gowers Review’ (2010) 73 (5) MLR 785, 789. 49 Compare the views of M. Spence, ‘Intellectual Property and the Problem of Parody’ (1998) 114 LQR 594 with C. Rutz, ‘Parody: A Missed Opportunity?’ (2004) 3 IPQ 284 regarding the applicability of the fair dealing defences to parodies. 50 See the definition in The Oxford English Dictionary. 51 Hudson, ‘The Pastiche Exception in Copyright Law: A Case of Mashed Up Drafting’ (2017) 4 IPQ 4, 347. 52 ibid. 53 Hyde Park Residence Ltd v Yelland  Ch 143. 54 s 107 of the Copyright Act 1976. 55 See the speech of Lord Denning MR in Hubbard v Vosper  2 QB 84 as affirmed in Ashdown v Telegraph Group Ltd  EWCA Civ 1142. 56 Pro Sieben Media AG v Carlton UK Television Ltd  1 WLR 605 and British Broadcasting Corp v British Satellite Broadcasting  Ch 141. 57 See the speech of Lord Denning MR in Hubbard v Vosper  2 QB 84. 58 Hyde Park Residence Ltd (n 53). 59 See eg Columbia Pictures Corp v National Broadcasting Co 137 F Supp 348, 354 (SD Cal 1955), Miller Brewing Co v Carling O’Keefe Breweries 452 F Supp 429, 441 (WDNY 1978), Dr Pepper Co v Sambo’s Restaurant Inc 517 F Supp 1202, 1208 (ND Tex 1981), MCA Inc v Wilson 677 F 2d 180, 185 (2d Cir 1981) and Eveready Battery Co v Adolph Coors Co 765 F Supp 440 (NDIll 1991). 60 Deckmyn (n 39) –. 61 See Posner, ‘When is Parody Fair Use?’ (1992) 21 (1) J Leg Stud 67. 62 Rutz (n 49) 315. 63 Merges, ‘Are You Making Fun of Me: Notes on Market Failure and the Parody Defense in Copyright’ (1993) 21 AIPLA QJ 305, 311, albeit the Court is invited to make a more qualitative assessment when determining whether a work is one of artistic craftsmanship under s 4(1)(c) of the CDPA 1988. 64 See eg A. Dyson, J. Goudkamp and F. Wilmot-Smith, Defences in Tort (Hart Publishing 2015) Chapter 1 para 4.2.3. 65 Light (n 46). 66 Davies and Garnett (n 15) 8-047. 67 ibid 8-020. 68 the InfoSoc Directive, art 5(3)(k). 69 See ‘Modernising Copyright: A Modern, Robust and Flexible Framework - Government Response to Consultation on Copyright Exceptions and Clarifying Copyright Law’ December 2012, Annex C, 30. 70 s 80(2)(b) CDPA 1988, see Confetti Records (n 19). 71 Griffiths, ‘Moral Rights from a Copyright Perspective’ in F Brison and others (eds), Moral Rights in the 21st Century (Larcier 2015). 72 Copinger and Skone James on Copyright (17th edn, Sweet and Maxwell 2017) 11–51. 73 Deckmyn (n 39) . 74 ibid . 75 Rosati, ‘Just a Laughing Matter? Why the Decision in Deckmyn is Broader than Parody’ (2015) 52 CML Rev 511. 76 Deckmyn (n 39) . 77 ‘Modernising Copyright’ (n 69) 30–31. 78 Deazley (n 48) 802. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of Intellectual Property Law & Practice – Oxford University Press
Published: May 24, 2018
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