In March 2016, the Hong Kong government abandoned its latest attempt to reform copyright law for the digital era. Notwithstanding strong support from the business sector, opposition to the Copyright (Amendment) Bill 2014 had become a crusade for civil rights activists and Internet- user interest groups, who protested it online and outside the legislature, and also for pro-democracy lawmakers, who filibustered tirelessly until the bill’s demise.

But we often loathe others having a laugh at our expense. Therefore it hardly comes as a surprise when copyright owners aggressively seek to enforce their monopoly right against others who use their works for the purposes of parody, satire, caricature, and pastiche.

So, a lot of my information doesn’t come from the news. It comes from what I see on the Internet.

The battleground between copyright protection and parody exceptions is not new. The US Supreme Court tested the fair use framework provided for under US copyright law in its well-known 1994 decision regarding a parody of Roy Orbison’s title song to the blockbuster movie Pretty Woman; arguably, no other single court decision had a similar impact on the copyright law treatment of parodies both in the US and internationally. The notion that the use of copyright-protected content in a parody should be generally permissible under copyright law has gained widespread traction across most jurisdictions. At the same time, the question of what exactly constitutes a parody varies from country to country and from culture to culture. This chapter provides an overview of the development of copyright exceptions related to parody under German and Japanese law, and highlights how a different tradition of parody can result in different copyright law interpretation.

In 1982, eleven days before Christmas, major American publishers tried to play Grinch and stop the popular practice of photocopying course readings. The publishers sued New York University (NYU) and a photocopying shop for copyright infringement, for compiling course packs. Reportedly, this was the first such legal action against universities, with NYU being “not necessarily the worst violator” but a “representative” target. Critics viewed the lawsuit as a tactic to force a settlement and “panic university libraries into signing up” with a collecting society. Eventually, a settlement was reached, and a new photocopying policy adopted by NYU. NYU agreed to seek permissions where none was previously taken. This sent ripples across US academia. Professors shied away from prescribing photocopied materials, while many universities emulated NYU.

The first and second of these are certainly worth celebrating in their own right as significant milestones in the development of public international law generally, but it is the third – national treatment – which is the starting point for the subject of the present paper, namely a consideration of the provisions made for limitations and exceptions to copyright protection under the international agreements.

International copyright law imposes a solid minimum standard of copyright protection, while requiring a very thin minimum standard of permitted uses. As the Berne Convention (BC) evolved and in 1996 subsequent international Treaties were adopted, international copyright law has increasingly strengthened protection of private rights of exclusion and eschewed setting mandatory permitted uses. Also International law has been progressively interpreted as a limit for States to lay down permitted uses in their laws or to define the scope of existing provisions extensively. This is partly due to how the Three-Step Test set forth by Article 9(2) BC has been understood over time. Originally intended as a way for Berne Union countries to permit reproduction of copyrighted works, the Test has been later intended as a strict method of regulating the system of copyright permitted uses.

When the plaintiff has made a case of copyright infringement under US law, the defendant can still avoid liability by showing fair use. The defense comprises four factors, arguably the most important of which is the fourth, namely “the effect of the use upon the potential market for or value of the copyrighted work.” The word “potential” connotes a focus on the future, a need for courts to evaluate how events could unfold in days to come and what effect will thereby arise in that future world.

Copyright, like any form of intellectual property (IP), is subject to exceptions and limitations, and the interpretation and application of which are highly uncertain owing to changing technical and business environments. In addition, provisions on exceptions and limitations are either vague or constantly in flux, particularly in civil law jurisdictions, where frequent revisions by legislatures take place to keep abreast of evolving needs in balancing the interests of copyright owners, copyright industry, users of copyrighted works, and the general public.

In 2012, Malaysia moved from a pure fair dealing system to a hybrid fair dealing and fair use system. The transition was made possible with the incorporation of section 13(2A) into the Copyright Act 1987. The section provided for the weighing of four fair use factors in considering whether a particular conduct amounts to a fair dealing under section 13(2)(a) and (b) of the Copyright Act 1987. In so doing, the four fair use factors played an instrumental role in defining the parameters of acceptable conduct as fair dealing.

The axiomatic importance of education in any society needs no further elaboration. Article 26(1) of the 1948 UN Universal Declaration of Human Rights asserts that “everyone has the right to education.” In fact, the very first modern copyright legislation, the Statute of Anne 1709, was entitled “An Act for the Encouragement of Learning.” While the Statute of Anne is more commonly remembered for the fact that it replaced the monopoly in printed books granted to printers with rights granted to authors, it should not be forgotten that the Statute also placed emphasis on the continued accessibility of books in public libraries and their affordability to university staff and students.

Personhood theory figures prominently in virtually every list of justifications for intellectual property in general and copyright in particular. Typically ascribed to the philosophical ideas of Georg William Friedrich Hegel and Immanuel Kant, this theory posits that authors have such deep connections with their creations that respect for their sense of self requires giving them a degree of ongoing control over those works. In essence, works are treated as extensions of the author’s person. As such, certain types of interference with those works would be tantamount to intruding on a part of the author’s body.

Article 10(1) of the Berne Convention mandates a quotation exception that is broad in scope, one that is not limited by work, nor type of act, nor by purpose, and is only subject to the conditions in Article 10, namely, the work has been lawfully made available to the public, attribution, fair practice, and proportionality. We call this “global mandatory fair use.” This overlooked norm in international copyright law is unaffected by and distinct from the three-step test and, as such, potentially dislodges its dominance. In turn, this creates different possibilities for how to conceive of and assess copyright exceptions at the national level. To substantiate our argument, this chapter is structured in three parts.outlines our underpinning contention, namely, that Article 10(1) creates a global mandatory “fair use” type obligation.explains why this obligation is unaffected by the three-step test in international copyright law. Finally, in , we draw out the differences between Article 10(1) and the three-step test and illustrate the potential relevance of this for national law using the specific case of US “fair use.”

Economic analysis understands intellectual property laws, including copyright law, as necessary to protect markets for information goods against an appropriation problem. The core value of creative and innovative product is the information on which books, movies, and inventions are based. Information is non-excludable to the extent that once it is distributed to some, it is difficult to prevent access to others.