Does Hong Kong need a "parody defence"?

Digital technology and the Internet have led to the emergence of numerous platforms and formats for user-generated content where consumers reproduce parts of copyright works to create their own parodies, pastiches, commentaries or tributes. The recent election of the new Chief Executive of Hong Kong has proved fertile ground for political commentators and satirists, resulting in an explosion of parody images and parody movie posters, highlighting an issue which has concerned the public following recent proposals to amend the copyright law. The introduction of a "communication" right by the Copyright (Amendment) Bill 2011 has been regarded by some as further stifling freedom of expression by criminalising the dissemination of parodies on the Internet. The Government has made clear that the bill is only intended to combat large-scale copyright piracy rather than targeting parodies, although the proposed wording of the law does not, on its face, actually make such a distinction. Under current Hong Kong law, there is no "parody defence" to copyright infringement and creators of derivative works face an uncertain legal position.

So do the parody posters constitute copyright infringement?

Copyright law protects against unauthorised reproduction of a copyright work in any material form. Infringement may occur when a substantial part of a copyright work is reproduced without authorisation. The test of substantiality is one of quality and not quantity so that even a small portion of a work may be regarded as constituting a substantial part. An effective parody should immediately invoke the original work and will, therefore, usually reproduce distinctive or memorable features of the original work. This means that, if the owners of the copyright in the movie posters have not authorised their use in the parodies, the risk of infringement is significant.

And it gets worse for the parodists…

The dissemination of a parody work may give rise to further offences, including unauthorised communication by electronic means (as proposed by the amendment bill), both in the course of business or for non-commercial purposes, or authorising infringement. Civil and criminal liability may arise.

So is there any defence?

Hong Kong does not have an explicit parody defence to copyright infringement. The only option is to claim "fair dealing" under certain specific categories of exploitations of a copyright work set out in the Copyright Ordinance which permits, amongst other things, fair dealing with a copyright work for the purpose of criticism and review. This means copying for the purposes of analysing, judging or criticising the merits of something, provided that sufficient acknowledgement is given. Case law indicates that the criticism and review can be of the underlying work, or of another work. It does not have to be limited to criticism or review of the literary style or artistic merit of the work but may also include ideas and events expounded by the work. However, a parody is often not a criticism or review of any particular "work" but can be, for example, commentary on a social or political situation.

"Sufficient acknowledgement" usually means acknowledging the source and author's name. The requirement for "sufficient acknowledgement" is usually inappropriate in the context of parodies since explicit acknowledgement of the underlying work would undermine the effectiveness of the parody.

Whether a particular dealing is "fair" is a question of fact and degree and will need to be assessed on a case by case basis. One of the primary considerations will be whether the dealing conflicts with the normal exploitation of the work by the copyright owner and whether it unreasonably prejudices the legitimate interests of the copyright owner. The "fair dealing" defences are strictly defined and there is no general defence of "fair use" as there is in the United States. This makes the "fair dealing" defence notoriously difficult to run in parody cases.

Parody works may also incur liability for breach of moral rights. Under Hong Kong law, the author of a copyright work has the right to be identified as the author or creator of a work, and to object to false attribution of authorship and to derogatory treatment of a work. Liability for false attribution may arise if the parody is represented to be the work of the original author. Derogatory treatment includes alterations to, or adaptations of, a work that are prejudicial to the honour or reputation of the author. There is scant case law on breach of moral rights so there little guidance on whether parodies amount to derogatory treatment.

Conclusion

Parodies can be an effective means of contributing to free speech and public debate precisely because of their imitative and humorous nature. The issue has not been the subject of judicial consideration in Hong Kong. Overseas cases have argued that parodies and remixes contain enough original thought and creativity to be recognised as works in their own right but that, in itself, does not necessarily absolve the derivative work from infringement if it is, in fact, a substantial copy of another work. The position in Hong Kong for creators of derivative works is still unclear.

The Government has said that introducing a copyright exception for parody would potentially be controversial as it is liable to change significantly the existing balance of interests between right holders and users. No legislative proposals will be introduced without a thorough assessment and public consultation. Whether it is necessary to define "parody" and "satire", and whether these should be regarded as different for user-generated content, are all questions that need careful consideration. Finding an appropriate balance between the interests of parodists and copyright owners will clearly not be easy. However, it seems that parody and satire are an integral part of our culture and the issue will only become more acute.

The Government will consider the views of stakeholders before deciding whether a concrete proposal for a parody defence ought to be made. Interested parties are encouraged to make submissions to the Legislative Council which has already conducted a preliminary review of material issues that would need to be resolved before any legislative proposals can be made.