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ADVICE TO THE MINISTER

HAY1 11008

Treatment of Pa rody and Satire Unde r th e

Cu rrent CQpyright Exceptions Framework
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ISSUE

At the Operations Committee, you were asked whether the current "fair
dealing" exception in the Copyright Act permits uses of copyright material for the
purpo ses of parody and satire.

BACKGROUND
This is the Department's preliminary assessment of trends in Canadian
courts.

The current fair dealing exception in the Copyrig ht Act (the Act) perm its
uses of copyright materi al, to the extent that such uses are fair. for a closed list of
purposes, namely: research, pri vate study, criticism, review, news repo rting.
Before the Supreme Court of Canada's 2004 decision in CCH Canadian Ltd. v.
Law Society ofUpper Canada (COl) (Annex A), in which the Court examined
fair dealing for the purpose of"rcsearch" , it seems that Canadian courts were
inclined to interpret the scop e of the fair dealing exception restrictively.

This pre-CCH approach is evident in the Federal Court of Canada's

Michelin v. CAW Canada (1996) decision (Annex B) in which the court examined
whether a parody could be considered a fair dealing in Canada. In thiscase, a
union used the Michelin man logo (the "B ibendum") in its organizing campaign
leaflets and posters. Michelin sued for copyright infringement. -Th e court rejected
the union's argument that its use of the logo was a parody and should be
conside red a fair dealing for the purpose of "criticism".

In its reasons, the court stated that parody was not an exception to
infringement under the Act. The court , indicating that fair dealing should be
interpreted restrictively, rejected the argument tha t parody is synonymous with
criticism and stated that it was not prepared to read in parody as a form of
"c riticism" . The court stated: "lfParliament had wanted to exempt parody as a

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new exception under the fair dealing provision, it would have done so..." The
court also stated that, in any event, the defendant's parody failed to satisfy the
other requirements of the fair dealing for "criticism" exception (e.g., attribution,
fairness).

The Supreme Court of Canada's 2004 CCH decision appears to represent a

shift in how courts should interpret fair dealing. In following CCH, courts must
give a liberal interpretation to the enumerated purposes. AJ:, such, it is possible
that a Canadian court will find that sufficient latitude now exists to recognize a
parody to be a fair dealing with a work for the purpose of"criticism" . However,
this theory has not been tested in the courts.

We are Dot aware of any Canadian court decisions involving a

determination of whether satire falls within the scope of the fair dealing
exception. Moreover, it is un clear whether speculation involving parody
post-CCH applies equally to satire considering that the meanings of these two
terms, though similar, are not identical. The United States Supreme Court, for
example, has held that a parody requires copying, while a- satire does not. To
complicate matters further, a satirical "imitation", is included within the
dictionary definition of t'parody ".

Parody and satire receive mixed treatment in other jurisdictions. In the

United States parody is permitted'under fair usc. In the European Union, Member
States may provide a parody exception that is compliant with international treaty
obligations. The United Kingdom is considering implementing a parody
exception. In Australia, as part of recent reforms, both parody and satire are
expressly permitted under fair dealing.

CONCLUSION

Although the apparent shifttowards a more liberal interpretation of the fair

dealing exception by Canadian courts, as represented by the CCH decision, may
result in uses such as parody and satire being held to be within the scope of the
exception, such an outcome is far from certain.

Richard Dicemi Paul Boothe

Deputy Minister Senior Associate Deputy Minister
c.c. Paul Boothe c.c. Richard Dicerni

Attachments
Contact: Susan Bincoletto, Director General, MFPB, 952-0211

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