Royal Wedding Highlights Differences Between US Fair Use and UK Fair Dealing
The IPBrief might be a week late and somehow our royal wedding tickets must have gotten lost in the mail, but here is our royal wedding coverage in the only way we know how to cover it: through the lens of comparative international copyright law. So my wife was recapping a story from a recent episode of The Daily Show with Jon Stewart, when she told me that footage of the royal wedding could not be used for parody or satirical commentary. While Jon Stewart simply decided to animate the wedding (a fictional account featuring every British icon the Daily Show team could think of,) it got me thinking about fair dealing, monarchy, and the Berne Convention.
Section 30 of the Copyright, Designs and Patents Act of 1988 (UK) states that “[f]air dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public. This, in addition to Section 29 (research and private study) and 178 (minor definitions, including fair dealing terms) form the basis of fair dealing in the UK. The section that I am focusing on is the one above, where a work that is providing criticism or review of another work, so long as sufficient attribution of the original work is included, is consider fair dealing and not a copyright violation. Under normal circumstances, one would assume that it would also apply to the footage of the royal wedding, which displayed the extravagance and pomp that only the Royal Family could pull off. Oh, and those hats. They were just asking to be parodied. I mean, come on. As Time Magazine points out, some of them looked like something from Alice in Wonderland.
However, the AP Television News service, broadcasters of the royal wedding, announced the week before the wedding that state footage would not be available for use “in any drama, comedy, satirical or similar entertainment program or content.” This applies not only to the official feeds, but all video of Westminster Abbey on the big day. I would love a commenter from “across the pond” to weigh in on the ability to limit fair dealing with contractual clauses, but when analyzing it under the United States “fair use doctrine,” it seems pretty clear that most satirical uses of the footage, such as Jon Stewart’s show, would be allowed under fair use. If you do something to transform the work, it is more likely to be a fair use, particularly if the transformation is a criticism or parody. Then again, we are the country that brought you YouTube videos of our President Obama’s speeches set to music and autotuned, and the royal wedding was a solemn and serious event that may deserve a heightened level of respect. Oh wait, hats.
If I may throw in one more thing to consider – powerful forces within the UK want to transform the UK fair dealing into a more U.S.-like fair use system. But one question is – is fair use in violation of the three step test found in Berne (and in TRIPS)? Article 13 of TRIPs reads, “Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.” Fair use tends to be available as a defense for a broad variety of claims, that in the some cases do conflict with normal exploitation of the work and can prejudice the legitimate interests of the rights holder.
However, if fair use is in violation of treaty commitments, the United States has been openly using it for a significant amount of time and the UK may soon follow, which could lead to a showdown between treaty members or a definitive change in the meaning of the three-step test.