Journal of Intellectual Property Law & Practice Advance Access published online on May 13, 2009
Journal of Intellectual Property Law & Practice, doi:10.1093/jiplp/jpp070
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© The Author (2009). Published by Oxford University Press. All rights reserved.
Practice Point |
Parody as fair dealing in Canada: a guide for lawyers and judges
Legal context: This article examines the defence of parody against allegations of copyright infringement. Earlier jurisprudence from the lower courts held that parody was not a form of criticism, and therefore lay beyond the bounds of the fair dealing provisions of Canada's Copyright Act. Recent decisions, also from the lower courts, continue to reinforce this notion and deny the existence of parody as a form of fair dealing.
Key points: Given the Supreme Court of Canada's unanimous ruling in CCH Canadian Ltd v Law Society of Upper Canada in 2004, combined with the values of freedom of thought, belief, opinion, and expression enshrined within the Canadian Charter of Rights and Freedoms, it is submitted that parody is undoubtedly a form of fair dealing being, by its very nature, a form of criticism. The statutory requirement that the source of the underlying work being criticized be ‘mentioned’ is also satisfied if one accepts that parodies implicitly conjure the source material. Novel issues surrounding the possible moral rights infringement of a parodied work are also examined.
Practical significance: This paper since it sets out an analytical framework for viewing parody as a form of criticism, utilizing the clear guidance provided by the Chief Justice in CCH Canadian Ltd v Law Society of Upper Canada and the values enshrined in the Canadian Charter of Rights and Freedoms. These primary materials should signal that earlier lower court jurisprudence on parodies is no longer ‘good law’. The issue of moral rights waivers and their utility for litigating parodies is also examined. A more nuanced approach to moral rights waivers is offered as part of an effective IP management and litigation strategy.
Correspondence: * Assistant Professor, Faculty of Law, University of Windsor; BA, LLB, LLM, LLM, PhD (candidate). This paper is dedicated to my colleagues Professor Emily Carasco and Professor David Tanovich, as well as Mr Haran Aruliah (class of 2008), for their unwavering support and encouragement. And, to my Uncle Faiz, in loving memory. Email: emir{at}uwindsor.ca