AIPPI Answer the Core Questions of Parody defence in Copyright

Three Key Questions Shaping the Parody Defense

The AIPPI resolution tackles several critical questions that have long divided jurisdictions and practitioners:

1. Under what conditions can parody be considered a legitimate exception, defense, or limitation to copyright infringement?
2. Should parody be subject to requirements such as originality, attribution, or the need for permission or remuneration to the copyright holder?
3. What safeguards should exist to prevent misuse of parody, such as misleading the public or permanently modifying unique works?

By addressing these questions, the Resolution provides a harmonized approach to navigating the often-contentious intersection of copyright law and freedom of expression.

Freedom of Expression Takes Center Stage

AIPPI recognized parody as a form of freedom of expression and, therefore, determined that, in principle, parody should be recognized as an exception, defense, or limitation to copyright infringement claims in relation to all types of works.

The Resolution does not define the term “Parody”, and therefore may apply to related genres and defences, such as satire, caricature and pastiche

A parody must be assessed objectively. The intent of the creator shall not be decisive in determining whether a parody should be recognised as a parody for the purpose of providing an exception, defence or limitation.

When Parody Qualifies for Copyright Exemption

The 2024 AIPPI Resolution outlines specific conditions under which parody is recognized as an exception, defense, or limitation to copyright infringement. These conditions provide clarity to what constitutes a legally protected parody, ensuring that humor, critique, and artistic expression can flourish while minimizing the risk of misuse or overreach. The key points include:

1. Recognizable Difference

A parody must be clearly distinguishable from the original work. This ensures that the parody is not simply a copy or reproduction but has its own unique identity that sets it apart from the original.

2. Humor or Critique

The resolution specifies that a parody must contain an element of humor, mockery, or critique.

3. Compliance with the Three-Step Test

Parody must satisfy the three-step test as defined in Article 9(2) of the Berne Convention, incorporated into international agreements such as TRIPS and the WIPO Copyright Treaty. This test requires that:

• The use of a copyrighted work must be limited to certain specific, clearly defined circumstances. These cases must be narrow in scope and not undermine the general principle of copyright protection.
• It does not conflict with the normal exploitation of the work.
• The rights holder’s interests, both economic and moral, must not be unduly harmed by the exception or limitation. This includes ensuring that the use does not cause excessive damage to the potential revenue or reputation associated with the work.

Commercial exploitation of a parody should not be precluded per se.

4. No Attribution or Originality Requirements

A parody is not required to meet the minimum originality standards for copyright protection, nor is it obligated to attribute the underlying work to its creator.

5. No Permission or Remuneration

Parody creators are not required to obtain permission from or provide compensation to the copyright holder of the original work.

6. Avoiding Public Misleading

To prevent misuse, a parody must not mislead the public regarding its nature or authorship. This condition ensures that audiences can easily identify the work as a parody rather than as an extension or reproduction of the original.

Balancing Freedom and Protection: Special Rules for Unique Works

The existence of an author’s moral rights is not sufficient on its own to preclude the application of the parody defense. This acknowledgment ensures that the protection of parody, as a vital form of critique and humor, is not undermined by overly broad interpretations of moral rights.

However, the Resolution introduces an important limitation to the parody defense, addressing concerns about the permanent alteration of unique works. It states that parody cannot justify the distortion, mutilation, or permanent modification of an original work that exists solely in a single physical embodiment. This provision safeguards irreplaceable works of cultural, historical, or artistic significance, ensuring they remain protected from irreparable harm.