s. 29.1 of Canada's Copyright Act provides that fair dealing for the purpose of criticism does not infringe copyright if the source is mentioned. The main issue then is whether parody - the use of humor or ridicule to point out some particular feature of the original work - is an acceptable form of criticism as per s. 29.1 of the Act. While earlier decisions such as Michelin rejected parodies as a form of criticism, a more recent 2004 Supreme Court of Canada decision - CCH Canadian Ltd v. Law Society of Upper Canada - suggests that the fair dealing provisions of the Act should receive a more liberal interpretation.
In a recent article published in the Journal of Intellectual Property Law and Practice, Professor Emir Mohammed presents a guide to lawyers (and judges) in crafting a defence of parody in the context of copyright infringement matters. Professor Mohammed's article revolves around the notion that parody should be accepted as a statutorily valid form of criticism under the fair dealing provisions of theAct. This notion is based on the maxim that the common law should develop in a manner consistent with the values enshrined in theCanadian Charter of Rights and Freedoms (like freedom of expression).
Professor Mohammed addresses the main issue in two parts:
First, parody must fit into one or more of the fair dealing categories of research, private study, criticism, review or news reporting. Second, whether the use of a work is fair must be analyzed using the framework articulated by Lord Denning in Hubbard v. Vosper and cited by Chief Justice McLachlin in CCH. This framework includes relevant factors in determining whether the use of a work is fair: (i) the purpose of the dealing, (ii) the character of the dealing, (iii) the amount of the dealing, (iv) alternatives to the dealing, (v) the nature of the work, and (vi) the effect of the dealing on the work.
In addressing the first part, Professor Mohammed finds that if the fair dealing provisions of the Act are to be given a liberal interpretation and that in an action involving only private parties, the common law should not be inconsistent with Charter values, a parody must be considered as a form of criticism. In addressing the second part, Professor Mohammed finds that the use of a work in the context of parody is indeed fair, according to the numerous factors in the analytical framework described in CCH.
On one hand, the logic that Professor Mohammed uses to support a position that parody should be an acceptable form of criticism under the fair dealing provisions of the Act is clear and understandable. It is easy to see how he arrived at this conclusion using the relevant provisions of the Act, the Supreme Court's CCH decision, and the maxim that the common law should develop in a manner consistent with the values enshrined in the Charter. On the other hand, there are some who may be uncomfortable with how Professor Mohammed used this maxim to shape his argument. This maxim was applied almost in a way that was like applying the Charter. Yes, it is true that a liberal interpretation of the fair dealing provisions of the Act, and thus a defence of parody against allegations of copyright infringement are consistent with the Charter, but would anything "less" also be consistent?
The guide that Professor Mohammed sets out in his article is practical and useful. It highlights very nicely what lawyers should consider in crafting a defence of parody in copyright infringement cases. Professor Mohammed's position is convincing and perhaps too convincing. In order to craft a solid defence, lawyers must be able to know and understand fully both the strengths and weaknesses of their case. While Professor Mohammed does touch one "nagging issue that remains" towards the end of his article, it would be interesting to know what opposing counsel might argue when it comes to the numerous factors that must be considered in the CCH analytical framework.