More on Satire and Parody and the Need for Legislation in Canada

Prof. D’Agostino has posted a thoughtful comment, with which I respectfully disagree, on my posting from yesterday on the BC parody case. It merits a sufficiently lengthy reply to require a new entry.

I think that Prof. D’Agostino and I agree that parody (she doesn't discuss satire) should be part of the law of fair dealing in Canada, but we disagree on whether to leave this to the courts or whether it should be dealt with by Parliament.

Here is what she actually said about "legislative intervention" on the parody issue in her two recently published papers.

At page 41 of her Canadian Heritage paper, she says:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the UK, Gowers recommended that the government should enact a new copyright exception for parody. Before CCH many scholars posited that parodies would be infringing in Canada. Post CCH’s liberal interpretation of the enumerated grounds, it could be argued that “criticism” could now encompass parody. Michelin no longer seems good law. Indeed, parody in the US is not an automatic. Parody still requires analysis of each of the four factors as well as some use of the target to be fair. This can now also be the case in Canada and would likely not require any legislative intervention. (Footnote omitted) (emphasis added)

At page 359 of her McGill paper, which I had not seen until now, she says virtually the same thing:

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the United Kingdom, Gowers recommended that the government enact a new copyright exception for parody. Before CCH, many scholars posited that parodies constitute infringement in Canada. In light of CCH’s liberal interpretation of the enumerated grounds, it may be argued that “criticism” could now encompass parody. Michelin no longer seems to be good law. Indeed, the protection of parody in the United States is not a foregone conclusion: parody still requires analysis of each of the four factors as well as some use of the target to be fair. Now this might also be the case in Canada, without the necessity of legislative intervention. In Canada, the issue may turn on the sufficient acknowledgment requirement (not present for research or private study, nor required in the United States). In the United Kingdom, where the same requirement exists, courts have been flexible in overcoming this hurdle in the case of criticism, review and news reporting. This flexibility or, indeed, dispensation with the acknowledgement requirement should be more warranted for parody. In parody, the link between the original and the parodic twin is often obvious since “the parody must be able to ‘conjure up’ at least enough of that original to make the object of its critical wit recognizable.” (Footnotes omitted) (emphasis added)

Prof. D’Agostino seems to prefer more of a soft law approach of “best practices.” Unfortunately, one cannot count on this achieving tangible results in Canadian courts.

She mentions Prof. Peter Jaszi’s work on best practices. I have worked with him over the years and have the highest admiration for him. However, “best practices” initiatives as developed by him and Pat Aufderheide are likely to be more successful in the USA, where fair use is codified only in the most general terms and industry practices are more likely to be accepted by the courts as fair. Indeed, that’s part of the theory and practice of the American system. In Canada, we now have the CCH decision, which follows decades of restrictive literal reading of the mostly very specific and explicit exceptions, of which the “dry erase board” takes the cake. However, as enabling and liberating as CCH seems for users’ rights, it may not permanently throw the door wide open. There are concerted efforts by lobbyists that could result in significantly undoing it, including by some who should know better. Ironically, the efforts of educational community at the management level as exemplified by CMEC and the AUCC could have this result. They don’t seem to get the message from this decision, or if they do, they don’t seem content to rely on it in any possible future litigation.

A “best practices” initiative can’t hurt and may help - as long as any initiative in this respect does not take pressure off the need to legislate. Such "best practices" could be a "complement" to legislation, as Prof. D'Agostino recognizes, but should not be an "alternative" as she also suggests at page 361 of her McGill paper. Such an initiative might provide guidelines for acceptable satire and parody practices, but should not replace legislation needed to enable satire and parody in the first place. Indeed, Prof. D’Agostino is kind enough to give me credit me for an initiative to develop guidelines at page 361 of her McGill paper. This stems from my White Paper on film documentaries from 2006. However, in that same paper, I also explicitly recommended near the top of my list of recommendations a legislative change to establish a satire and parody right. On this issue, I’m taking a “belt and suspenders” approach.

We have had this parody impasse in Canada since the 1996 Michelin decision, which a lot of people believe may have wrong been then and even more wrong now in light of subsequent case law. But it wasn’t clearly wrong and still isn’t clearly wrong. It was a reasoned and lengthy ruling by a highly respected Federal Court judge. It was never appealed. And it’s still the law in Canada, at least in the eyes of Master Donaldson in the BC Supreme Court.

One of these days, we will have a functioning Parliament again. I hope that it does its job by passing clear legislation so that Canada doesn’t stand almost alone amongst comparable countries in rejecting a parody right in the name of copyright law. Even France, which is a civiliste and copyright “maximalist” country allows for parody.

Canada can’t tolerate years of uncertainty and an uncertain outcome if this matter is left to work its way through the development of best practices and further litigation.

HK