What is “fair dealing”?
A “fair dealing” exception essentially allows copyright infringement in certain circumstances. The defence permits certain acts, including copying, which are otherwise restricted by the Copyright Act 1994 when the restricted act fits within one of the current exceptions such as criticism, review, and news reporting. New Zealand’s lack of a fair dealing exception for parody and satire is unusual, with Australia, Canada, and the United Kingdom all including such an exception in their equivalent copyright legislation.
By its very nature, a parody must take a substantial amount of a work in order for it to critique its source material. In this vein, it is almost inevitable that a parody will, at least technically, infringe the copyright of its source material. For example, “Weird Al” Yankovic’s “Eat It” needed to substantially copy Michael Jackson’s “Beat It” in order for a mental association to be made and for the original to be effectively critiqued using its own form. The parody and satire fair dealing exception is often grounded in arguments around freedom of expression and the democratic power of parody, allowing parodists to make fun and criticise without fear of copyright infringement.
The calls for a parody and satire fair dealing exception are not new
Despite Carter’s Bill being coined as the “meme Bill”, the need for a parody and satire exception was expressed long before memes infiltrated the internet. The Labour-led government considered a fair dealing exception for parody and satire in 2008 but within a month they were out of power and the idea fizzled out. In 2011, Green Party MP Gareth Hughes drafted a member’s Bill to bring New Zealand’s copyright law in line with that of other common law countries, claiming that his Bill would bring New Zealand into the twenty-first century, protecting free speech and accounting for the modern-day realities of internet accessibility and freedom of information. More recently, in mid-2018, National MP Simeon Brown introduced his own Bill, seeking to introduce a carve-out for parody and satire within the pre-existing criticism and review fair dealing.
Carter’s Bill is a resurrection of the 2011 Bill which (perhaps ironically) copies s 41A of the Copyright Act 1968 (Cth), envisioning a stand-alone fair dealing exception for parody and satire:
42A Parody or Satire
A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of parody or satire.
What about moral rights?
Carter’s Bill is silent on how “moral rights” will interact with a fair dealing exception for parody and satire.
Moral rights are personal, unassignable rights which vest in the author of a work. Notably, they remain vested in the author upon the transfer of copyright, unless they are waived by the author themselves. Deriving from French jurisprudence, moral rights recognise an author’s unusual “spiritual” connection with their work, exist independently of copyright, and now find themselves enshrined in the Copyright Act 1994. For example, relevantly to parody and satire, moral rights include the “integrity right”, allowing an author to object to the “derogatory treatment” of their work.
It goes without saying that a parody will often involve the distortion of the work which it is aiming to lampoon and will in some circumstances inherently rely on the derogatory treatment of its source material. If Carter’s Bill passes, a parodist will have a right to use a work for parodic purposes, but authors will enjoy corresponding and simultaneous moral rights which protect their works against derogatory treatments, among other things. It remains to be seen how these conflicting rights are dealt with, if at all.
Of course, the New Zealand broadcasting and media world has not collapsed without any legal recognition of parody and satire. If anything, there has been a distinct lack of litigation in the space, putting Carter’s Bill, let alone any consideration of moral rights, largely in the theoretical or jurisprudential realm.
Does New Zealand need the Bill?
What would come with a parody and satire exception, however, is legal certainty for the parodist. If successful, Carter’s Bill will officially “allow” a form of discourse which has been valued for centuries, and whose democratic importance has essentially removed any real need to codify an exception, up until this point.
The Bill comes during a time where the Ministry of Business, Innovation and Employment’s much-needed Review of the Copyright Act 1994 has stalled. However, perhaps Carter’s Bill will re-ignite the discourse on the stagnation of copyright law in New Zealand, with burgeoning modern issues such as artificial intelligence, requiring solutions in copyright legislation which was conceived before the creation of the internet.
New Zealand’s copyright legislation is largely stuck in a pre-internet world, but in a world where millions of potentially infringing works are created every day in the form of memes, perhaps it is the right time to reflect reality in the Copyright Act 1994, even if doing so remains largely a formality.
The Copyright (Parody and Satire) Amendment Bill was drawn from the biscuit tin on 8 November 2024 and is now set to be debated in the House. It is unclear at this stage whether it will receive majority or Government support at first reading.
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