The Lawyers Weekly - May 4, 2012

BOB TARANTINO
ladimir Nabokov wrote that “satire is
a lesson, parody is a game.”
When Bill C- 11 (The Copyright
Modernization Act) is finally passed
and proclaimed in force, Canadians
may want to bear that adage in mind,
Section 29 of the Copyright Act will be modified
to include both “parody” and “satire” as categories
of “fair dealing.” The change will allow users, so
long as their use is “fair,” to incorporate copy-
righted materials into new activities and works
without the need to obtain permission from or pay
royalties to the owners of those materials—but
only so long as the new activity or work constitutes
“parody” or “satire.” Therein lies the seed for what
will be many years of speculation and debate as
Canadian lawyers and potential litigants struggle
with the contours of humour.
Adding parody and satire to “fair dealing” will
make Canada one of only a handful of jurisdictions
in the world in which the scope of user’s rights is
so explicitly broad. The “fair use” mechanism
found in United States copyright law, while often
described as more flexible and adaptive than “fair
dealing,” only extends protection to parody. Among
significant comparable common law jurisdictions,
only Australia includes both parody and satire
within the ambit of its “user’s rights” or exceptions
to infringement.
In 1994, a case involving 2 Live Crew’s lewd rap
cover of Roy Orbison’s song Pretty Woman, the U.S.
Supreme Court confirmed in Campbell v. Acuff-
Rose Music, Inc. that a parody could qualify as fair
use. However, the court clarified that, while “par-
ody” could constitute fair use, “satire” could not.
See Parody Page 11