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I think I'm a clone now
Composed by Ritchie Cordell/Weird Al Yankovic
Performed by Weird Al Yankovic
Recorded on "Even Worse" (1998, Scotti Brothers)
Parody, pistache, mash-up ... whatever you want to call it ... is at the heart of so much "peer produced" content available online these days. How does the law treat this behaviour? How should it?
To understand this topic, the first must-read case is the United States Supreme Court decision in Campbell v. Acuff-Rose, 510 U.S. 569 (1994). That case was decided almost two decades years ago. Since then, I think the biggest change has been the shift from professional to peer production attributable to the spread of cheap, easy to use digital production tools and means of dissemination. This brilliant report, "Recut, Reframe, Recycle" from the folks at American University's Center for Social Media gives you a glimpse into the legal regulation of this cultural transformation; it is another must-read piece for this lesson. See some of the referenced videos on this site. (Don't worry, we'll screen the best from YouTube during class. And if you've got your own to share, do so in the class forum.) Stanford's "fair use project" is a similarly useful resource on this topic.
Of course, I'd like you to spend some time digging deeper into a few other cases we'll mention. Take a quick glance at Irving Berlin et. al. v. E.C. Publications, Inc., Elsmere Music v. N.B.C. and MCA Music v. Earl Wilson, 425 F. Supp 443 (1976). If you're interested in knowing how various other fair use cases in the United States have shaken out, consult these summaries provided by Stanford University Libraries. These are all U.S. cases. The leading (although some people - including me - would argue outdated and irrelevant) Canadian case on parody is Michelin v. C.A.W.. But it's not about music, so we won't discuss it specifically. You can, however, see how Canadian litigants deal with the lack of a parody defence by looking at music-related cases like ATV Music Publishing of Canada Ltd. v. Rogers Radio Broadcasting and Gilbery & Hawke Advertising Agency Ltd..
The legality of parodies depends in large part upon the distinctions between "fair dealing" and "fair use" and other intriquicies of copyright law. That's mostly a statutory matter, so I would like you to breeze through a few of the main provisions from around the world. Start by checking out Art. 9(2) of the Berne Convention and Art. 13 of the TRIPs Agreement, which set the parameters within which most countries are free to develop their fair dealing principles.
Although many people are critical of American copyright law, especially the DMCA, the United States has far more liberal laws than many countries when it comes to parodies. The American approach stems from the flexibility inherent in 17 U.S.C. 107, which you should read. We're going to compare the American and Canadian positions, so you'll want ti look at Canada's Copyright Act, R.S.C. 1985, c. C-42, ss. 29-29.2. Although the European Union is flexible about how member states approach the issue of parody (see E.U. Copyright Directive, art. 5, s.3(k)), the U.K. hasn't taken advantage of this opportunity (see the Copyright, Designs and Patents Act 1988 (U.K.), 1988, c. 48, s. 30). See how the Aussies used to deal with parodies by looking at Copyright Act 1968 (Cth.), s. 41, and compare that to the amended version of the law.
Proposed legislation currently before Parliament could have a major impact on this issue in Canada. We'll spend a lot of time during class discussing this development. If you can, please have a look at this proposed provision legalizing "non-commercial user generated content" as well this amendment (s. 21) to the fair dealing provisions, adding "parody" as a specifically permitted category of legal uses of copyrighted material.
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