New Zealand’s Copyright Act gets a sense of humour

The Copyright (Parody and Satire) Amendment Bill (the Bill) was recently drawn from Parliament’s members' ballot. The Bill introduces exceptions to the Copyright Act 1994 for parody and satirical works.

If passed, the Bill will be welcomed by all those who believe that parody and satire are imperative to free speech, and those who have been creating memes on the internet without realising they might have been breaching copyright…

What does the Bill do?

The Bill seeks to add a new section into Part 3 of the Copyright Act. Part 3 sets out the exemptions to copyright infringement. These are the acts that, while otherwise might be considered to infringe copyright, are permitted by sections 41 to 92E. Subject to some requirements, permitted acts include:

• copying or using a work for educational purposes (ss 44 to 49);

• copying a work for library or archive purposes (ss 50 to 57A);

• performing, playing or showing a work for students or staff as part of educational activities (s 47); and

• making Braille copies of a work (s 69A and Schedule 1, cl 52).

Section 42 currently provides an exception to copyright infringement for “criticism, review and news reporting”. This section means that, provided there is “sufficient acknowledgment” of the work’s title (or other description if it is untitled) and author (unless the work is published anonymously or the author cannot be identified), people are free to use copyright protected works for the purposes of critiquing, reviewing or news reporting.

The amendment proposed by the Bill will insert a new section 42A, which adds an exception for “parody or satire”. This will allow people to meme, spoof, pastiche and caricature without infringing copyright. Green Party MP, Kahurangi Carter, who introduced the Bill, stated that the purpose of the Bill is to “provide space for creators, artists, commentators, and everyday Kiwis to poke a little fun without breaking the law – or the bank".

Overhaul of the Copyright Act

In MBIE’s 2018 review of the Copyright Act, one of the questions raised was whether uses that facilitate freedom of expression were adequately captured by the existing exceptions set out in Part 3. The Issues Paper noted that someone who wanted to create a parody or satire of a work that held copyright would, under the existing system, be required to either get the owner’s permission, or fall within the section 42 exception for criticism, review or news reporting (see page 62 of the Issues Paper). This may be difficult or even impossible depending on the circumstances.

Though there has not been any guiding New Zealand case law on the use of parody or satire as a defence to copyright infringement in New Zealand, judges in other jurisdictions have not always considered a parody or satirical work to fall within fair use exceptions. In a famous Canadian case in which a union used an illustration of the Michelin Tire Man on a brochure organising a campaign at a CGEM Michelin plant, the Judge held that “criticism” was not a synonym of “parody” and refused to include parody in the definition of criticism. This demonstrates the possibility that a parody will not be captured by the existing “criticism, review and news reporting” exception.

Scope of the exception

Without falling under an exception, a parody or satire of a work in which copyright subsists would be considered copying of that work under section 30 of the Copyright Act. Many New Zealanders would be unaware of the copyright regime and how their content, including seemingly harmless memes could infringe another’s rights – something that even New Zealand’s political parties have run into trouble with in the past - see our comments on this political advertising here, and on the application of copyright to online content here.  

The inclusion of a satire and parody exemption would make the New Zealand copyright regime more consistent with many other jurisdictions such as the UK, Australia, the US and Canada, who have each introduced exceptions for parody and satire into their own regimes.  

However, there is no detail in the Bill about how the exception will be applied in practice. As currently written, the Bill provides that any kind of parody or satire is potentially a fair dealing, so long as its “purpose” is parody or satire. (The parody or satire does not, for example, need to be tied to criticism or review.) Working out the scope of this exception will be critical so that genuine parodies and satires are allowed without excusing “cashing in” on copyright owners’ creativity by taking their material without compensation.

Progress through Parliament

The Bill is yet to have its first reading before Parliament so it remains to be seen how it will progress. The National Party’s Simeon Brown himself introduced a Copyright (Parody and Satire) Amendment Bill in 2018, suggesting that there might be cross-party support.

However, the Government is still in the process of reviewing the Copyright Act and (according to MBIE's website) “analysing the many issues raised during consultation”. In a public statement in April 2024, the Hon Paul Goldsmith (Minister for Arts, Culture and Heritage) noted that it is essential “to ensure critical enabling legislation, such as Intellectual Property and copyright laws, are up to scratch” in New Zealand, perhaps intimating that a comprehensive legislative review is still progressing.

Submissions to MBIE during the initial consultation on the review of the Copyright Act were largely in favour of an exception for parody/satire. But it may be that the Bill does not proceed while an overall reform of the Copyright Act is underway. In any case, we will track its progress.

If you have questions about the application of the Copyright Act or require advice about your use of copyright protected work, please get in touch with one of our experts.

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