PARODY IN COPYRIGHT LAW AND THE THREE-STEPS TEST UNDER TRIPS
M. C. Dal Pian
Educativa (BRAZIL)
Under Article 47 of Brazilian copyright law (9.610/98), parody is a limitation to protection. Interpreted on the light of Berne Convention, limitations contrast with two other kinds of restrictions: the exceptions that allow for the removal of liability that would eventually arise [as stated, e.g., in Article 9(2), originally intended to guide national legislators just with respect to the rights of reproduction]; and the compulsory licenses, in which case provisions allow a particular use of copyright material subjected to the payment of compensation. However, under the Agreement on Trade-Related Aspects of Intellectual Properties Rights (TRIPS), limitations and exceptions are brought together under Article 13, in a slightly modified version of Article 9(2) of Berne Convention. Known as the three-steps test, the new provision under Article 13 contains a free standing TRIPS obligation that purports to apply a general formula as template: “Members shall confine limitations and exceptions to exclusive rights to (i) certain special cases (ii) which do not conflict with a normal exploitation of the work, and (iii) do not unreasonably prejudice the legitimate interests of the right-holder”. Parody, a mode of expression with a long tradition in the history of humankind, draws on previous work, borrowing from it a substantial part in a witty kind of imitation that leads to a new work. In this sense, as the Berne’s concept of limitation would allow, parody does not imply reproduction. However, neither Berne Convention nor TRIPS contain any provision related to parody to facilitate interpretation. Actually, the general formula of the three-steps test under TRIPS still has to sit alongside the provisions of Berne Convention, so a certain balance has to be achieved in relation to several issues, including parody. The European law (EC Copyright Directive 2001), for example, treats limitations and exceptions on common grounds – as does TRIPS, but still distinguishes between restrictions to ‘reproductive rights’ [Article 5(2)] and restrictions to ‘rights’ [Article 5(3)]. Parody falls under Article 5(3)k. The fact is that, given the three-steps test under TRIPS, all contracting countries that value parody as a cultural wealth need to accommodate a copyright system that balances between the legitimate borrowing that facilitates parodists engagement with the creation of culture, and the possibility of the author of the original work to communicate with an audience and to explore his/her work. For example, Australia Copyright Amendments Act 2006 added both, a provision allowing the use of copyright material for the purposes of parody and satire (section 41A, Part 3), and a provision stating that the ‘fair dealing’ uses allowed should not conflict with a normal exploration of the source work, nor unreasonably prejudice the legitimate interests of the copyright’s owner – with the same meaning as TRIPS (Part 3). In this presentation, we discuss some parodies of short stories and exemplify a kind of use allowed under the Brazilian copyright law that does not conflict with TRIPS. Interestingly, in all copyright instruments here reviewed, parody seems to enforce the idea that education is a universal permissible circumstance of non-infringement. It is concluded that parody constitutes an interesting case that helps to clarify the importance and the challenges of intellectual property in education in a world-wild perspective.