Parody as Fair Dealing in Canada: A Guide for Lawyers and Judges
Journal of Intellectual Property Law & Practice (Oxford), Vol. 4, No. 7, 2009
5 Pages Posted: 6 Sep 2009 Last revised: 30 Aug 2010
Date Written: September 3, 2009
The central feature of any parody is the use of humour or ridicule to point out some particular feature (or ‘peculiarity’) of the original work. The fair dealing provisions of Canada’s Copyright Act provide, inter alia, an exception against copyright infringement for ‘criticism’. Earlier jurisprudence declared that parodies were not forms of criticism and therefore fell outside the legislative bounds of the fair dealing scheme.
The Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada has now provided definitive guidance as to liberal interpretation that the fair dealing provisions of the Act ought to receive.
Combined with the maxim that the common law should develop in a manner consistent with the values enshrined in the Canadian Charter of Rights and Freedoms (like freedom of expression), the Supreme Court’s decision in CCH Canadian Ltd v Law Society of Upper Canada should signal an acceptance of parody as a statutorily valid form of criticism under the fair dealing provisions of the Act.
Keywords: parody, copyright, canada, charter of rights and freedoms, freedom of expression, fair dealing, fair use
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