Last month I introduced you to a new series for #BriffaWay which I described as a personal reflection on our European journey. The series entitled ‘What has the EU ever done for Intellectual Property?’ was inspired by the 1979 Monty Python classic, Life of Brian. In that film there is scene where the People’s Popular Front of Judea meet to plot the kidnap and murder of Pontius Pilate’s wife. Huddled together in a backroom one of the co-conspirators expresses misgivings about the planned violence. Were the Romans that bad after all he asks. To incite the gathered and avoid the risk of mutiny their leader replies ‘Were the Romans that bad? Were the Romans that bad? Are you having a laugh? What have the Romans ever done for us?’ One by one the gang members call out major Roman achievements until their leader says ‘All right, all right but apart from sanitation, medicine, education, wine, public order, irrigation, the roads, the aqueduct and public health what have the Romans ever done for us?”
After the vote to leave the EU a parody came out in which the Roman achievements were exchanged for EU achievements including winning the Nobel Peace Prize in 2012 for contributing to the advancement of peace and reconciliation democracy and human rights in Europe for over 6 decades.
In the light of all that it seems apt to ask therefore as we continue our Brexit journey ‘What has EU ever done for IP?’ In this first piece as we are on the subject I’ll start with a look at the law of parody, caricature and pastiche as an exception to the rules of copyright.
Parody is most commonly associated with a humorous, exaggerated or satirical imitation of an existing artistic work or its creator. It brings to mind countless YouTube videos made in the style of a popular song with lyrical changes or comedy sketches based on well-known television shows or movies. The parody exception in relation to copyright was introduced into UK legislation through the Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which provides that ‘fair dealing with a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work.’
Now we are not a nation that needs to get permission from our EU partners to have a laugh. Indeed, our sense of humour is supposedly a national characteristic but the introduction of the parody exception onto our statute book is the first time that this right has been codified. Against this background we have in the UK always had a way of working out what is and is not allowed on the parody front. Any parodist dragged before a court is going to have to prove that what they have done is fair dealing by showing for example that they have taken no more than is necessary to achieve the comic effect and that the rights owner has not suffered any economic harm as a result of the parody. This way of working things out is echoed in the laws of many members states. Most recently the concept of fair dealing in the context of parody was explored by the Court of Justice of the EU in Deckmyn v Vandersteen concerning a well-known Belgian cartoon, which was parodied by a far-right politician to criticise the Mayor of Ghent. The Court established two essential criteria for parodies to fall under the exception: the parody should be close enough to evoke an existing work whilst being noticeably different from it, and that it should constitute an expression of humour and mockery. There is broad recognition in the UK and in other countries that the free speech elements of critical parody should be encouraged and enabled while at the same time respecting the right of copyright owners. Long therefore may our passion to have a laugh continue.
With all this in mind and having carefully considered all the risks I have written my own parody of that classic hit ‘I will Survive by Gloria Gaynor’ a song about her struggles of untangling from what had become an abusive relationship.
WE WILL SURVIVE
At first, we were afraid, we were petrified
Keep thinking, we could never live without
EU by our side
But then we spent so many summits thinking, how much you got it wrong
And we grew strong and we thought hey wait we can get along
And so you’re miffed, beyond belief
We just walked out and left you there with that mad look on your face
You should have realised it before
You should have tried to cut a deal
But it’s too late now and there’s no deal you gonna seal
Oh now go, the joke’s on you
Go back to Brussels as we’re not playing anymore
Weren’t you the ones who tried to break us for our goodbye?
Think we’d crumble, think we’d lay down and die?
Oh no not us, we will survive
As long as there is trade to do, we know we’ll stay alive
We got all the strength we need
We don’t need to beg and plead
Think we’d crumble think we’d lay down and die
Oh no not us, it’s not our style
As long as there is work to do there is nothing that we need
We got so much up our sleeve
We don’t need to take your lead
We will survive ,we will survive hey hey
It took all the strength we had not to fall apart
Keep trying hard to mend the pieces of our broken heart
We spent oh so many nights thinking we had voted wrong
We used to cry, but now we hold our heads up high
And you see us, a country new
We’re not that chained up little island still in love with you
And so you feel like being nice and even get down on one knee
But we’ve changed now and having other countries round for tea
Go on now go, get out the door
Get back to Brussels you’re not welcome any more
Weren’t you the ones who tried to hurt us on goodbye
Did you think we’d crumble? Did you think we would lay down and die?
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