Necessarily Critical? The Adoption of a Parody Defence to Copyright Infringement in Canada

The creation and distribution of parodies promote the fundamental values underlying the constitutionally protected right to freedom of expression. Through parodies, individuals can progress in their “search for political, artistic and scientific truth”, protect their autonomy and self-development, and promote “public participation in the democratic process”. Recognizing the importance of parody to political, social, and cultural life, governments in various jurisdictions have adopted or proposed parody defences to copyright infringement. The Canadian Copyright Act, however, does not contain an explicit parody defence to copyright infringement. Furthermore, no Canadian court has accepted a defence of parody to a claim of copyright infringement. Some commentators have argued that the fair dealing defence, set out in sections 29-29.2 of the Canadian Copyright Act, can be interpreted in such a manner as to provide protection for parody. The fair dealing defence states that works containing a substantial amount of copyright-protected material and created without the consent of the copyright owner will not infringe copyright if they have been created for the purpose of research, private study, criticism, review, or news reporting; if the copyright-protected work has been dealt with “fairly”; and if certain attribution criteria are satisfied. Commentators who take the position that the fair dealing defence likely provides protection for parody maintain that the fair dealing category of criticism is broad enough to encompass parody. The argument that the fair dealing category of criticism encompasses parody, however, is based on the assumption that parodies are necessarily critical. This article will challenge this assumption. Although parody is popularly conceived of as “a specific work of humorous or mocking intent, which imitates the work of an individual author or artist, genre or style, so as to make it appear ridiculous”, this conception is not definitive. Other conceptions of parody exist. Some have adopted the view that the object of criticism can be something other than the work being parodied. Others do not insist upon criticism at all. This article takes the position that given the importance of parody to Canadian society, the Government of Canada should create a parody defence to copyright infringement. This defence, however, should not be embedded within the fair dealing category of criticism. Incorporating the parody defence within the fair dealing category of criticism would result in the protection of a restrictive, limited conception of parody. Under this approach, only critical parodies will be protected from a claim of copyright infringement. Non-critical parodies will be denied protection. Rather than protecting parody within the fair dealing category of criticism, this article argues for the creation of a separate parody defence, capable of encompassing all of the various conceptions of parody. This defence could be incorporated within fair dealing as a new category. Incorporating the parody defence within the fair dealing defence would help ensure that any encroachment on the rights of copyright owners due to the creation of this new user’s right will be limited to situations which are “fair”. This article will proceed in three parts. First, it will introduce parody, describing its various conceptions and discussing its importance to Canadian society. Second, it will describe the historical treatment of parody in Canadian copyright jurisprudence and analyze whether contemporary Canadian courts are likely to find that parodies infringe copyright. Third, this article will discuss the creation of a parody defence to copyright infringement