While parody is a well-established defence to copyright infringement in the U.S, a recent B.C. Supreme Court decision says that this is not the case in Canada. On November 24, in a to strike portions of the Statement of Defence, the B.C. Supreme Court Master ruled that parody could not be invoked as a defence of copyright infringement under the Copyright Act. The case before the Master concerned an alleged copyright infringement based on the authoring, printing and distribution of a fake edition of the plaintiff’s newspaper, the ‘Vancouver Sun’. The defendant claims to have created the edition in question as a parody. The parody aimed to expose the Vancouver Sun’s alleged strong pro-Israeli bias.
In rejecting the possibility of the defence of parody, the Master relied on the [Michelin]. According to the reasoning in Michelin, parody is not synonymous with criticism and cannot be read in as another exception to fair dealing. In particular, Teitelbaum J. argued that Canadian courts should be cautious in adopting the reasoning of the U.S. courts that justify the addition of parody to the provision of fair use in U.S. copyright law. While the list of exceptions in U.S. fair use is open-ended, the enumerated grounds of fair dealing are fixed. Thus since parody does not fall under the category of criticism, Teitelbaum J. concluded that it should not be added as an additional enumerated ground to the provision of fair dealing.
However, scholars, such as Professor D’Agostino, have that the strict interpretative approach to parody in Michelin needs to be reconsidered in light of the later SCC decision in CCH Canadian Ltd. v. Law Society of Upper Canada [CCH]. There the court urged for a liberal approach to the interpretation of the fair dealing provision. Although the number of enumerated grounds still remains fixed pursuant to the Copyright Act, the SCC leaves open the possibility that a liberal interpretation might allow new purposes to exist within each enumerated ground. This, according to Professor D’Agostino, might allow courts to read in parody within the enumerated grounds of criticism or review. Such an approach to the fair dealing provision could help Canadian courts to move closer to the U.S. more flexible analytical framework of fair use.
Professor D’Agostino notes that the sufficient acknowledgement requirement for some enumerated grounds of the fair dealing provision might be a hurdle for those who would like to establish parody as a defence to copyright infringement. In particular, the Copyright Act states that fair dealing for the purpose of review, criticism or news reporting does not infringe copyright if the source and the author of the original work are cited. However, Professor D’Agostino suggests that especially in cases of parody the sufficient acknowledgement requirement may be more easily overcome by the very nature of parody itself where “the link between the original and the parodic twin is often more obvious…” Thus in the case of parody, it is possible that the requirement is satisfied without an explicit acknowledgement of the source and the author of the original work.
For these reasons, by discarding the defence of parody on the basis of Michelin, the B.C. Supreme Court Master might have overlooked the reasoning in the CCH decision. On the facts of this case, it seems that the parody of the ‘Vancouver Sun’ was created for the purpose of criticizing the alleged pro-Israeli bias of the newspaper. Another purpose of the parody might have been to present a more accurate and balanced news reporting on the Middle East. The defendant that Canwest, the owner of ‘Vancouver Sun’, has a ‘centralized editorial policy’ to ‘insulate Israel from criticism for its violations of international law and to influence Canadian public opinion and foreign policy.’ Furthermore, the defendant argues that the newspaper coverage of the Israeli occupation of the West Bank and the Gaza Strip is highly skewed such that it usually portrays Israelis as ‘innocent victims’ and Palestinians as ‘inhuman terrorists’.
Given the liberal interpretation of fair dealing in CCH, it is highly possible that the parody of the ‘Vancouver Sun’ could be characterized as having the purpose of criticism or perhaps news reporting. These purposes fall within the enumerated grounds of the fair dealing provision. Furthermore, the parody has closely mimicked the general layout of the original ‘Vancouver Sun’, which might be enough to satisfy the sufficient acknowledgement requirement. In light of the evidence, the Master might have erred in discarding the defence of parody, on a motion, solely based on the reasoning in Michelin. A more appropriate approach to the issue might have been to assess all of the evidence at trial.