The Parody and Satire defence – what do we make of it so far?

It has been almost five years since the law of fair dealing for the purpose of parody or satire was introduced as a defence to copyright infringement in the Australian Copyright Act 1968 (Cth). The defence is enshrined in sections 41A and 103AA.

It has been an interesting five years, and as the government who introduced the legislation predicted, a boom for free speech. Satirical pieces have been liberated from the risk of copyright action, whereas once such pieces might have presented the writers and producers with significant legal risk.

Some years ago before the defence was introduced, one of the authors remembers having to advise an art gallery on a provocative performance piece that was to be presented by one of Australia’s more cutting edge artist troupes. Their work used copyright material owned by a multinational corporation and the piece made various allegations against that company. The presentation of the work was sadly but inevitably pulled as the volunteer board of directors was not prepared to take on the legal risk. Since then, the introduction of provisions into the Defamation Acts across Australia, which now say that corporations with ten or more employees cannot sue for defamation (see for example, section 9 of the Defamation Act 2005 (NSW)), combined with the parody or satire defence to copyright infringement, have liberated such artistic endeavours from legal constraints. Today, that performance piece would be risk free.

This liberation has affected all areas of artistic production. In the realm of television, programs like The Chaser’s War on Everything and Newstopia have clearly benefitted from the introduction of the parody or satire defences. Skits like The Chaser’s “I still call Australia 51% Home” – a parody of the famous Qantas advertisement – followed hot on the heels of the then Attorney General’s, Mr Ruddock’s, announcement that the Fanatics would now be able to sing parodies of songs at the cricket without fear of being legally pursued. The legislation was enacted just as the Fanatics’ song manual Six, Jugs & Rock n Roll – Fanatics Song book & Party Guide for the 2006 – 2007 Summer had been published causing murmurs in the musical publishing world with songs like Ode To Freddie to the tune of: Bohemian Rhapsody, Queen.

In his Second Reading Speech, in the House of Representatives Hansard, on19 October 2006, Mr Ruddock said the exception: “promotes free speech and Australia’s fine tradition of satire by allowing comedians and cartoonists to use copyright material for the purposes of parody or satire.”

User generated parodies published online have flourished; so too, the variety of satirical content on radio. For example, Chris Taylor and Andrew Hanson, two members of the Chaser team, created a radio program for Triple J called “The Blow Parade”. This series was a humorous radio show taking the listener through music of the fifties, sixties, seventies and eighties. It was quite obviously a parody and satire of bands such as The Sex Pistols and Pink Floyd.

There hasn’t been a case brought to test the meaning of the defence yet. Perhaps this suggests that Australia is truly the home of parody and satire – a nation which wholly embraces taking the mickey. Maybe copyright owners are prepared to accept that here. It does suggest that creators can be brave and embrace the parody and satire defence.

But some questions remain about the defence. How will the courts read the defence?  Will they read it broadly or narrowly if a case is brought? How will they assess the notion of fairness? What can be unfair in a world of parody or satire? This question is almost an oxymoron, but you can bet copyright lawyers and courts will eventually find an answer.

For those wanting to know more, it is worth dipping into the article published in two parts by the Media and Arts Law Review entitled Defining Parody and Satire: Australian copyright law and its new exception – Parts 1 and 2 (vol 13 no 3 – August 2008 and vol 13 no 4 – December 2008). Here Conal Condren, Jessica Milner Davis, Sally McCausland and Robert Phiddian argue that the courts should not do what they have the tendency to do – which is to reach for dictionary definitions to determine the legal meaning of the concepts “parody” and “satire”. As these authors point out, if the Australian courts depended on the Macquarie Dictionary to understand the meaning of these words, they would be relying on definitions that were current around the end of World War I, many years before The Goon Show and almost a century before The Chaser’s War on Everything.

Other issues which spring up from a practical point of view relate to jurisdiction. Australia it seems has gone where no other country has been prepared to venture so far. Two jurisdictions close to home – one geographically speaking, the other historically – New Zealand and the United Kingdom, do not currently have the defence. And it seems that if the UK introduces the defence, it will limit its introduction of the defence of fair dealing to the purpose of parody only. (See “Digital Opportunity – A review of Intellectual Property and Growth – An Independent Report by Professor Ian Hargreaves”, May 2011). In 2010 Canada was poised to introduce both parody and satire, but the reform bill was pushed aside due to an election. Nowhere seems to have embraced the specific, wider concept of “satire” as a limb of the defence, except in the US where its broad concept of fair use does allow for certain cases of satire.

This inconsistent treatment throughout the world means that when it comes to the international tools of social media and other internet facilities for publishing content, there continues to be limitations on the use of copyright material in the context of parody or satire. And while a lot of internet publishing tools allow restrictions on territories, sometimes international circulation will be hard to control or ignore. This issue will continue to vex Australian artists.

Kate Gilchrist and Katherine Giles – Australian Broadcasting Corporation

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