Defining parody and satire: Australian copyright law and its new exception

The new exceptions to the Copyright Act in ss 41A and 103AA, providing protection of re-use for ‘the purpose of parody or satire’ seem clearly intended to provide protection for both parody and satire, not merely some confection of the two artistic practices. As these practices are not contiguous and separable genres, as pastoral and epic poetry, or situation comedies and current affairs programs are, it is important to have a model for understanding how these two practices can operate together and separately. The threshold issue of what will legally qualify as parody or satire under the new exception is critical in determining its scope. The answer to this question will determine how far new forms of Australian artistic practice can use existing copyright material before they become infringements, however creative they are. In Part 1 of this article, we argue that it is not safe to rely solely on dictionary definitions of the terms, as the available definitions from the most commonly used dictionaries depend on lexicography too completely shaped by narrowly literary theories of the practice. Moreover, their definitions do not take into account the sort of multi-media re-use that is most likely to cause hard cases to come before Australian courts in the twenty-first century. In our view this caution would be consistent with a judicial approach which surveys a range of dictionaries as one element of the interpretive approach supporting the primary task of textual analysis. Neither is it safe to simply import the US jurisprudence on the terms, for two reasons: broadly, that it has developed in jurisdictions with very different laws, especially those concerning free speech, and narrowly, that the course of US case law has generated a very idiosyncratic distinction between parody and satire which may serve a convenient legal purpose in that jurisdiction, but which does not correspond to the normal meanings of either term in Australia, among practitioners, theorists, and (to the extent they think it through) audiences. In Part 2 of this article (forthcoming) we develop a better theoretical framework for interpreting and applying the threshold definitional part of the new exception.