A new exception to British copyright law is being introduced to allow for the creation of mash-ups – but only if they’re funny. The exception to the Copyright, Design and Patents Act 1998 will come into force on Wednesday, and will allow for the creation of mash-ups – that is, existing material that has been reedited to create a humorous montage – without the express permission of the owner of the original material.
Although the new law will cover any copyrighted material, including music, film, images or books, up until now, record companies have been at the forefront of action against those who use copyrighted material “for the purposes of parody, caricature or pastiche” without seeking permission. Last year, EMI succeeded in removing a parody of the Jay Z and Alicia Keys song “Empire State of Mind”, which had been re-crafted to celebrate life in south east Wales, from the internet, The Telegraph has reported
However, if a mash-up artist is taken to court, it will be up to the judge to rule on whether the parody is sufficiently funny or not. “Of course, humour may change from person to person. What is perceived as funny by some may not be funny by another,” said Eleonora Rosati, a lecturer in intellectual property at the University of Southampton and copyright law and policy consultant. She described the caveat as “controversial” if the exception will require a humorous or satirical effect, as opposed to simply intent to be humorous or satirical.
She also highlighted the limits of the new law, saying “It does not affect UK moral rights, which the author of the parodied work enjoys. This means that if a parody is disparaging of the original work, the author may be able to complain about the derogatory treatment of their work. Furthermore, the changes will have no impact on the law of libel and slander.”
The Intellectual Property Office said: “Adopting this exception will give people in the UK’s creative industries greater freedom to use others’ works for parody purposes.
“Drafting this as a fair dealing exception…is intended to allow creators to make minor uses of other people’s copyright material for the purposes of parody, caricature or pastiche, without first asking for permission”.
In this context, ‘fair dealing’ means that plagiarism, where a whole piece of work is copied, would not be allowed, ensuring that the market for original works remains unaffected.
Creative insiders welcomed the new law as something that may promote more creative freedom and licence, although they also had concerns over leaving the final ruling down to judges based on personal preference.
Aaron Levitt, co-editor of the London-based music blog Stamp the Wax said: “I think [the new exception] will encourage more freedom as creative people are no longer working under the risk of prosecution. But it’s risky to put this in the hands of judges, who are out of touch with the generation who are creating the content and the audience it is aimed at.”
His solution was to appoint young advisors to judges to help them reach a decision about what constituted humour in the modern world.