Are the new ‘fair dealing’ provisions an improvement on the previous UK law, and why?

Abstract

In October 2014 the parody exception came into force in UK copyright law. Finally taking the opportunity offered by the Information Society Directive, s 30A CDPA 1988 now provides a fair dealing exception for the purpose of caricature, parody or pastiche. The recent guidance on the interpretation of the exception issued by the Court of Justice of the European Union (CJEU) in in Deckmyn and Vrijheidsfonds VZW v Vandersteen, C-201/13, EU:C:2014:2132 makes it timely to review the possible impact of the provision.The impact of the exception is hard to predict for two reasons. First, the subject matter is delicate to define as it covers a myriad of different uses. Secondly, owing to the form of the exception, no factors are provided by the legislator. This article revisits English case law in light of the guidance provided by the CJEU to determine the likely scope of the exception. The article then seeks the potential impact of the exception by considering musical parodies, one of the oldest forms of the genre, on the music industry, which represents one of the most lucrative and complex creative sectors.This article argues that, while the exception is an improvement on the old law, its success depends on its interpretation by the courts. Additionally, its effectiveness will be impaired if business practices do not reflect the principles underlying this new exception.