Genuine parodies are inherently critical and our copyright law should allow them. The same goes for satires, argues Law Professor Graeme Austin.

The Government’s review of New Zealand’s copyright law is in full swing. Expert policy analysts at the Ministry of Business, Innovation and Employment are busy preparing an issues paper inviting public consultation on the scope of the review. The paper is expected in mid-2018.

An Opposition MP has now introduced his own Bill that would widen existing exceptions to copyright owners’ rights to cover parody and satire. Simeon Brown’s Copyright (Parody and Satire) Amendment Bill is a smart piece of copyright thinking that deserves support. Even if the Bill doesn’t make it out of the ballot process, the Government should take the proposal seriously in its wider review process.

Copyright exceptions are already one of the hot-button issues in the review. Fair-dealing exceptions permit “free” or “unlicensed” uses of copyright-protected material under limited circumstances. There’s been quite a bit of agitation to add a fair-dealing exception for parody and satire.

Instead of a stand-alone parody and satire exception, Brown’s Bill would extend the existing fair-dealing exception for criticism and review to include parody and satire. Parody and satire are types of criticism. But over the years judges have resisted extending the criticism and review exception to cover them. Brown’s Bill would correct this wrong turn in case law.

Many other countries have parody or satire exceptions. European Union member states are permitted to enact a copyright exception for “caricature, parody or pastiche”. Many have done so, including the United Kingdom in 2014. In the United States, parody is acknowledged as a kind of fair use that doesn’t require a licence from the copyright owner.

Both parody and satire are valuable social speech. From a copyright perspective, however, they are quite different.

For a parody to work, it might be necessary to take quite a lot of the original so the audience understands the point.

Satire often involves taking copyright-protected material for more general social commentary, not to target a specific copyright-protected work. With such satire, there is no obvious need to take somebody else’s copyright-protected material to hit the target.

The US Supreme Court has identified this distinction. The leading US case involved a rap group’s parody of Roy Orbison’s classic song Oh Pretty Woman. The rap song took the original’s distinctive guitar riff and melody, but added new lyrics suggesting life for a “pretty woman, walking down the street” might not be as anodyne as Orbison’s song suggested. Under these circumstances, where the target was the original song, taking quite a big chunk of the original might be excused. But if the rap group had taken the Orbison song to avoid the “drudgery” of working up something for themselves – even if they were engaging in general social critique – that would not be a fair use. Satire should not be a fig leaf for taking copyright-protected material that should be licensed.

Australia added a new copyright exception for “parody or satire” in 2006. Unlike Brown’s Bill, however, the Australian exception is not tied to criticism and review. Any kind of satire is potentially a fair dealing.

There hasn’t been much case law on the Australian exception yet. A December 2017 case involved alleged parodies of Pokémon characters uploaded to the Redbubble site. The judge took a strict view, saying the exception should not excuse “cashing in” on others’ creativity. The case is under appeal. The Australian Parliament has given judges a difficult task of working out the scope of the “satire” exception without demolishing copyright owners’ ability to get licensing income from derivative markets.

By tying parody and satire to criticism and review, Brown’s Bill avoids many of the problems with the Australian law. The Bill makes it clear not just any kind of satire will be excused. It must be satire that criticises an existing copyright-protected work.

Genuine parodies are inherently critical and our copyright law should allow them. Satires that are critical of copyright-protected works should also be permitted. This reflects our commitment to freedom of expression in the Bill of Rights Act. But when satirists are making general social commentary, we should encourage them to come up with something fresh — and not to avoid doing so by taking others’ material without compensation.