Wonder how IP will factor in if it comes into existence? IP rights — patents and copyrights — are in the US Constitution.

Recommendation 2: Enable educational provisions to cover distance learning and interactive whiteboards

Recommendation 12: Create an exception to copyright for caricature, parody or pastiche.

There are several aspects of this review that I’ll be commenting on over the coming weeks and months (here and at opencontentlawyer), but I want to concentrate on the last recommendation:

Recommendation 12: Create an exception to copyright for caricature, parody or pastiche.

Lord Triesman, as a well-known political figure, joked that the UK doesn’t suffer any shortage of caricature and pastiche. This sentiment echoes the language of the current review:

Parody, in particular, continues to flourish under the current system. If this is the case, does anything need to change?

The current review of a proposed parody exception goes on to discuss the issue at greater depth. However at the general level, the question for many I believe is whether an exception is necessary given that parody (which includes caricature and pastiche within the context of the review) is prevalent within the UK.

It is however important to put the current state of parody in the context of how copyright gets enforced.

As Westminster, the European Union, and the UK IPO implement various ways to increase IP enforcement and encourage parties to resort to filing a court action, this can clearly put parody in jeopardy. The costs of bringing an action, the difficulties involved, the threat of having to pay the other side’s legal fees, and the threat of establishing disfavourable case law by bringing an action all act as a disincentive to litigate and thus give parodists freer reign in the UK. Contrast this with the United States, where statutory damages — pre-established damages awards for copyright infringement — can make claims much easier to bring and thus have a greater impact on parody. Making it easier to bring an action can have consequences — including making it harder for parodists and thus crushing worthy expression here in the UK.

I would submit to the review that they should keep in mind the balance between enforcement and free expression when considering whether to introduce a parody exception formally into the UK. Making a broad exception to copyright for parody will ensure that this culture flourishes and that the rights to free expression are preserved.

About the Gowers Review

The Gowers Review was commissioned by the Treasury in 2005 to review intellectual property in the UK. Andrew Gowers, former editor of the FT, led the review which was published in December of 2006. This review made a number of recommendations, some of which have already been implemented. The current review by the UK IPO examines implementing some of the proposed exceptions to copyright.