Abstract
Cambridge Core - Media, Mass Communication - The Right To Parody - by Amy Lai
Focusing on the nexus of humour and the right to free speech, this article introduces the concept of ‘dark parody’ to address parodies that reuse existing material with a dark, humorous twist and explores how courts deal with two of the main interpretive challenges presented by a ‘dark parody’: (1) interpreting the distance between the parody and the copyright/trademark protected work it parodies, and (2) its use of dark humour. Using a metahermeneutic approach, the article analyses how the main features of parody, the legal criteria applied to parody in courts of law, and the role of dark humour influence the judicial interpretation process regarding (dark) parody in the context of copyright and trademark law. Based on this analysis, the article proposes the theoretical framework of ‘parodic distance’ to address the interpretive challenges systematically presented by dark parody via six main categories—content, style, context, message, function and affect—from which the distance between a parody and the original can be interpreted. Applying this framework to two case studies [Mercis c.s. v. Punt.nl, Court of Appeal of Amsterdam; Laugh It Off Promotions v. South African Breweries, Constitutional Court of South Africa], the article provides a comparative analysis of how these courts currently deal with interpretive issues surrounding dark humour in copyright and trademark law and shows how the framework of parodic distance can be a potentially useful conceptual tool that provides a shared vocabulary to complement judicial interpretation and legal discourse at the nexus of dark parody and the law.
This research aims to evaluate the CDSM Directive and DSA regulation effectiveness in protecting the EU copyright exception for parody, caricature, and pastiche set in Article 5 (3)(k) of the InfoSoc Directive and capture quintessential issues of the regulation that make the conditions for potentially reduced ability to disseminate creative parody content in the online content-sharing service platforms in the EU. The subject of this paper is the complex relationship between algorithmic content recognition tools and creative parody content qualification. Based on EU copyright law doctrinal consensus, a legislative move to introduce liability for copyright-infringing content to online content-sharing service providers induces algorithmic content moderation on digital platforms. The triangular challenge to balance EU copyright and exception protection without disrupting the online content-sharing service leads to algorithmic recognition-based parody recognition solutions.
Humor is a pervasive element of human communication and a fundamental ingredient of democratic life. Throughout history, it has been used as a vehicle to poke at the powerful, engage in socio-political commentary, or collectively negotiate social boundaries and norms. As a consequence, courts from all over the world have often stressed the importance of protecting humorous expression. At the same time, the elusive and subjective nature of humor poses specific challenges for free speech adjudication. This paper will discuss international trends and recurring issues in humor-related jurisprudence, by analyzing 81 cases from across the globe. The cases are organized around five key – and sometimes intersecting – themes, namely (1) Satire, defamation and other individual dignitary harms; (2) Disparaging humor and hate speech; (3) Humor, violence and public unrest; (4) Parody, copyright and trademarks; (5) Humor and “public morals.” Building on the analyses provided in the GFoE database and on a growing body of interdisciplinary work on humor and the law, the paper also highlights the benefits of a closer dialogue between legal scholarship and practice on the one hand, and humanities-based humor research on the other.
This article highlights a fascinating legal wrestling match over the legal limits of free speech through humorous artistic works in the late eighteenth century – just before freedom of speech became a constitutional right. It concerned the parodic item “Reports from Babel” in an issue of the anonymous Dutch journal Ismaël from 15 September 1788. The city of Utrecht and specific authorities were allegedly targeted who in turn prosecuted the local sellers of these perceived libels, Gijsbert Timon van Paddenburg and Justus Visch. The controversy is studied through the political-historical background of the Orangists, who had been returned to power following a turbulent period. The arguments of the court and the parties involved are analysed, as well as the reception of the Roman law of iniuria – specifically regarding libels. Literary and philosophical-linguistic theories are employed to gain insight into the way this particular parody as a form of free speech was perceived as dangerous to late-eighteenth-century society. We show that these defendants exploited the ambiguity of parodic language as part of their defense strategy. Nonetheless, the judicial authorities dismissed these language-based arguments, ultimately condemning the two booksellers with the considerable fine of 1000 guilders. This legal-historical discussion of humorous artistic works, such as Ismaël , highlights the complex relationship between libel laws and free speech.
This article arose from the scandal which broke out in Russia in 2018, when Ulyanovsk cadets made an amateur video clip parodying the Benny Benassi’s musical video (2003). Soon, this video had more than a million views. But official Russian media sharply reproached the cadets’ performance, and even Russian authorities discussed the video. The Russian Internet community issued a lot of videos in support of the cadets. The reaction of Russian media on the cadets’ parody was mainly strong and not always adequate. I am interested in the reasons behind the fear of parody because, in my opinion, the official discourse had nothing to fear. My analysis is based on the Russian theories of parody and the medieval cultural experience. Can parody be dangerous? Why did the official media overreact?
This study investigates the impact of the EU digital copyright directive, Article 13, on
memes and internet culture. Due to their transformative nature, it is tricky to fit memes into a
traditional copyright framework. Article 13’s filter algorithms will be coded to detect posts that
make use of intellectual property, thereby complicating the use of copyrighted images drawn
from film and television. This study includes a discourse analysis of news coverage of Article 13
to explore how various groups characterized the value of meme culture and the threats posed by
the new directive. It also includes a textual analysis of several social media advertising
campaigns that utilized memes to promote products and build brand images. The thesis argues
that the degree of diversity in meme culture will be threatened due to different state-based
interpretations of copyright and that the use of memes as an advertising medium will likely be
undermined.
Current Awareness - Volume 19 Issue 2 - Katherine Read, Laura Griffiths
The chapter provides an introduction into law and globalization for sociolegal studies. Instead of treating globalization as an external factor that impacts the law, globalization and law are here viewed as intertwined. I suggest that three types of globalization should be distinguished — globalization as empirical phenomenon, globalization as theory, and globalization as ideology. I go on to discuss one central theme of globalization, namely in what way society, and therefore law, move beyond the state. This is done along the three classical elements of the state — territory, population/citizenship, and government. The role of all of these elements is shifting, suggesting we need to move away from the traditional paradigm of both social and legal studies: methodological nationalism. I do not answer here how this paradigm should be replaced, but I discuss one prominent candidate of a meta-theory: transnational law. Transnational law, I suggest, helps transcend dichotomies of methodological nationalism that have become unhelpful: between domestic and international, between public and private, and between law and society.
This text initially discusses the notion of intellectual property in Kant's philosophy and in the eighteenth century. Next, it restates the problem within a contemporary setting, taking into account the new technologies on reproduction of information.Este texto inicialmente discute a noção de propriedade intelectual na filosofia de Kant e no século XVIII. Em seguida, recoloca o problema na atualidade em função das novas tecnologias de reprodução da informação.
Numerous commentators have decried the growth of copyright holder rights in recent decades. Copyright's expansion is widely said to be inimical to copyright's core goals and economic rational. If so, why has that expansion occurred? Without question, there are multiple causes. This essay surveys and critiques a number of them, beginning with the copyright industries' raw political muscle and moving to the rhetorical and theoretical frameworks for expansion.
The history of the censorship of publications in Canada is, for the most part, a hidden history. Apart from relatively rare criminal prosecutions, and in contrast to the regulation of film, video, radio and television by provincial and federal administrative bodies, there has been little in the way of visible, public regulation of publications. This paper begins the process of shedding some light on a few of the institutional mechanisms through which censorship of publications has been carried out in Canadian history. Another is to argue that the topic of censorship is best conceptualized broadly, as the exercise of power in relation to the creation or dissemination of knowledge. We should evaluate the exercise of power in relation to publications by asking who is exercising power, over what expressive materials, according to what criteria and procedures, for what purposes, and in whose interests. When we do, the problems with how the regulation of publications has been carried out in Canada become apparent. Power over publications has been exercised by persons with questionable authority, training or expertise, according to procedures that are largely hidden and unaccountable, by deploying criteria that are vague and indeterminate if specified at all, usually for the purpose of forestalling perceived challenges to the existing moral or political order. Ironically, these weaknesses are largely a product of the difficulties in liberal democratic theory and practice of regulating the content of publications openly. Where political pressure is exerted towards suppression, concerns about censorship, and a lack of consensus about its appropriate mechanisms and forms, have led the state away from criminalization, and, ironically, towards less visible, less accountable forms of regulation. The result is that too many Canadians have been either uninformed or complacent: so long as the exercise of power over publications has been invisible, there has been nothing to worry about.
This book explores a hitherto unexamined possibility of justifiable disobedience opened up by John Rawls’ Law of Peoples. This is the possibility of disobedience justified by appeal to standards of decency that are shared by peoples who do not otherwise share commitments to the same principles of justice, and whose societies are organized according to very different basic social institutions. Justified by appeal to shared decency standards, disobedience by diverse state and non-state actors indeed challenge injustices in the international system of states. The book considers three case studies: disobedience by the undocumented, disobedient challenges to global economic inequities, and the disobedient disclosure of government secrets. It proposes a substantial analytical redefinition of civil disobedience in a global perspective, identifying the creation of global solidarity relations as its goal.
Michael Allen breaks new ground in our understanding of global justice. Traditional views, such as those of Rawls, see justice as a matter of recognizing the moral status of all free and equal person as citizens in a state. Allen argues that this fails to see things from the global perspective. From this perspective disobedience is not merely a matter of social cooperation. Rather, it is a matter of self determination that guarantees the invulnerability of different types of persons and peoples to domination. This makes the disobedience by the undocumented justified, based on the idea that all persons are moral equals, so that all sovereign peoples need to reject dominating forms of social organization for all persons, and not just their own citizens. In an age of mass movements of people, Allen gives us a strong reason to change our practices in treating the undocumented.
James Bohman, St Louis University, Danforth Chair in the Humanities
This monograph is an important contribution to our thinking on civil disobedience and practices of dissent in a globalized world. This is an era where non-violent social movements have had a significant role in challenging the abuse of power in contexts as diverse, yet interrelated as the Arab Spring protests and the Occupy protests. Moreover, while protests such as these speak to a local political horizon, they also have a global footprint, catalyzing a transnational dialogue about global justice, political strategy and cosmopolitan solidarity. Speaking directly to such complexities, Allen makes a compelling case for a global perspective regarding civil disobedience. Anyone interested in how the dynamics of non-violent protest have shaped and reshaped the landscape for democratic engagement in a globalized world will find this book rewarding and insightful.
Vasuki Nesiah, New York University
This book is a comprehensive guide to the development and utilization of authorial moral rights across the key jurisdictions of the English-speaking world and in France and Germany. In recent years, the copyright statutes of the common law countries have been expanded by the introduction of provisions dealing with purely authorial rights - moral rights.
The Moral Rights of Authors and Performers discusses the historical development of the rights in Europe, with particular reference to France and Germany, and shows the growth of moral rights theory and legislative coverage up to the late 1930s. During the 1920s the moral rights of authors became the subject of international protection, particularly through the operation of the Berne Convention for the Protection of Literary and Artistic Works. The book explores the adoption of moral rights into this and other international instruments, explaining the functions that moral rights were intended to perform.
The author gives detailed accounts of the operation of moral rights in France and Germany today, addressing both statutory interpretation and doctrinal issues. The provision of case studies gives an impression of the rich jurisprudence associated with the rights in these countries.
The book also contains a detailed discussion of the versions of moral rights that have become entrenched in Canada, the UK, the US and Australia, with each country considered independently. It deals separately with the introduction of the rights into each country and their operation and interpretation by courts and commentators. Material on common law analogues to the rights is provided, which indicates alternative actions that practitioners might take. Problems of cross-jurisdictional legal proceedings (especially arising from technological transfer of information) are also addressed, with moral rights protection elsewhere in the world summarized in tabular form.<br /
Book synopsis: This innovative book comprises nine essays from leading scholars which investigate the relationship between fiction, censorship and the legal construction of obscenity in Britain between 1850 and the present day. Each of the chapters focuses on a distinct historical period and each has something new to say about the literary works it spotlights. Overall, the volume fundamentally refreshes our understanding of the way texts had to negotiate the moral and legal minefields of public reception.
The book is original in the historical period it covers, starting in 1850 and bringing debates about fiction, obscenity and censorship up to the present day. The history that is uncovered reveals the different ways in which censorship functioned and continues to function, with considerations of Statutory definitions of Obscenity alongside the activities of non-government organisations such as the anti-vice societies, circulating libraries, publishers, printers and commentators. The essays in this book argue that the vigour with which novels were hunted down by the prowling prudes of the book's title encouraged some writers to explore sexual, excremental and moral obscenities with even more determination. Bringing such debates up to date, the book considers the ongoing impact of censorship on fiction and the current state of critical thinking about the status and freedom of literature. Given contemporary debates about the limits on freedom of speech in liberal, secular societies, the interrogation of these questions is both timely and necessary.
The political value of African American literature has long been a topic of great debate among American writers, both black and white, from Thomas Jefferson to Barack Obama. In his compelling new book, Representing the Race, Gene Andrew Jarrett traces the genealogy of this topic in order to develop an innovative political history of African American literature. Jarrett examines texts of every sort-pamphlets, autobiographies, cultural criticism, poems, short stories, and novels-to parse the myths of authenticity, popular culture, nationalism, and militancy that have come to define African American political activism in recent decades. He argues that unless we show the diverse and complex ways that African American literature has transformed society, political myths will continue to limit our understanding of this intellectual tradition. Cultural forums ranging from the printing press, schools, and conventions, to parlors, railroad cars, and courtrooms provide the backdrop to this African American literary history, while the foreground is replete with compelling stories, from the debate over racial genius in early American history and the intellectual culture of racial politics after slavery, to the tension between copyright law and free speech in contemporary African American culture, to the political audacity of Barack Obama's creative writing. Erudite yet accessible, Representing the Race is a bold explanation of what's at stake in continuing to politicize African American literature in the new millennium.
Free speech in the ancient democracy was not a protected right but an expression of the freedom from hierarchy, awe, reverence and shame. That freedom was challenged by the consequences of the rejection of shame (aidos) which had served as a cohesive force within the polity. Through readings of Socrates's trial, Greek tragedy and comedy, Thucydides's History, and Plato's Protagoras, this volume explores the paradoxical connections between free speech, democracy, shame, and Socratic philosophy and Thucydidean history. © Arlene W. Saxonhouse 2006 and Cambridge University Press, 2010.
This chapter provides a picture of the French authorities' (Government and judges) interference in the freedom of expression which are justified by the refusal of Hate speech. These interferences appear like mirrors, not only of the French notion of freedom of expression, but also of the relationship that the French state maintains with society. The French notion of freedom of expression has in fact always been relativistic if only because, by constantly establishing a balance between freedom of expression and 'law and order', French constitutional texts have never brought about a debate comparable to the American debate relating to the First Amendment's provision that Congress shall make no law abridging freedom of speech. As a matter of fact, the constancy of this balance between freedom of expression and 'law and order' tells us something about a certain form of 'paternalism' that is particularly characteristic of the French state in its relations with society.
This volume explores the sameness and difference between the United States and France in the matters of freedom of expression on the Internet. The United States and France are liberal democracies that are part of the Western family of nations. However, despite their many similarities, they have a number of cultural and ideological differences. The United States is generally France’s ally in time of war and its cultural nemesis in time of peace. One of the reasons for this unusual relationship is that the United States and France are self-described “exceptional” countries. The United States and France are therefore two Western countries separated by different exceptionalist logics. Lyombe Eko uses this concept of exceptionalism as a theoretical framework for the analysis of American and French resolution of problems of human rights and freedom of expression in the traditional media and on the Internet. This book therefore analyzes how each county applies rules and regulations designed to manage a number of issues of media communication in real space, to the realities and specificities of cyberspace, within the framework of their respective exceptionalist logics. The fundamental question addressed concerns what happens when rules and regulations designed to regulate the media in clearly defined, national and regional geographic spaces, are suddenly confronted with the new realities and multi-communication platforms of the interconnected virtual sphere of cyberspace
The creation and distribution of parodies promote the fundamental values underlying the constitutionally protected right to freedom of expression. Through parodies, individuals can progress in their “search for political, artistic and scientific truth”, protect their autonomy and self-development, and promote “public participation in the democratic process”. Recognizing the importance of parody to political, social, and cultural life, governments in various jurisdictions have adopted or proposed parody defences to copyright infringement. The Canadian Copyright Act, however, does not contain an explicit parody defence to copyright infringement. Furthermore, no Canadian court has accepted a defence of parody to a claim of copyright infringement.Some commentators have argued that the fair dealing defence, set out in sections 29-29.2 of the Canadian Copyright Act, can be interpreted in such a manner as to provide protection for parody. The fair dealing defence states that works containing a substantial amount of copyright-protected material and created without the consent of the copyright owner will not infringe copyright if they have been created for the purpose of research, private study, criticism, review, or news reporting; if the copyright-protected work has been dealt with “fairly”; and if certain attribution criteria are satisfied. Commentators who take the position that the fair dealing defence likely provides protection for parody maintain that the fair dealing category of criticism is broad enough to encompass parody.The argument that the fair dealing category of criticism encompasses parody, however, is based on the assumption that parodies are necessarily critical. This article will challenge this assumption. Although parody is popularly conceived of as “a specific work of humorous or mocking intent, which imitates the work of an individual author or artist, genre or style, so as to make it appear ridiculous”, this conception is not definitive. Other conceptions of parody exist. Some have adopted the view that the object of criticism can be something other than the work being parodied. Others do not insist upon criticism at all.This article takes the position that given the importance of parody to Canadian society, the Government of Canada should create a parody defence to copyright infringement. This defence, however, should not be embedded within the fair dealing category of criticism. Incorporating the parody defence within the fair dealing category of criticism would result in the protection of a restrictive, limited conception of parody. Under this approach, only critical parodies will be protected from a claim of copyright infringement. Non-critical parodies will be denied protection.Rather than protecting parody within the fair dealing category of criticism, this article argues for the creation of a separate parody defence, capable of encompassing all of the various conceptions of parody. This defence could be incorporated within fair dealing as a new category. Incorporating the parody defence within the fair dealing defence would help ensure that any encroachment on the rights of copyright owners due to the creation of this new user’s right will be limited to situations which are “fair”.This article will proceed in three parts. First, it will introduce parody, describing its various conceptions and discussing its importance to Canadian society. Second, it will describe the historical treatment of parody in Canadian copyright jurisprudence and analyze whether contemporary Canadian courts are likely to find that parodies infringe copyright. Third, this article will discuss the creation of a parody defence to copyright infringement.
No one concerned with freedom of expression in the United States todaycan fail to be alarmed by the unsatisfactory state of first amendment doctrine.Despite the mounting number of decisions and an even greater volume of comment,no really adequate or comprehensive theory of the first amendment hasbeen enunciated, much less agreed upon. Proponents of the "absolute" or"literal" interpretation of the first amendment have failed to define the boundsof their position or to account for such apparent exceptions to the absolutetest as the law of libel, the application of child labor laws to tMe distribution ofliterature, and the regulation of election campaigns. Their views have thereforebeen dismissed as impractical or illogical, or both. At the other end of thespectrum, the "balancing" test has tended to reduce the first amendment, especiallywhen a legislative judgment is weighed in the balance, to a limp andlifeless formality. Among intermediate positions, the "clear and present danger"test is the best known; yet not only has this formula often been ignored, but itwas discarded in Dennis and at any rate is hardly applicable to many of theissues which now arise, such as the extent of the protection afforded by the firstamendment from the legislative investigating power. Other efforts to formulatean overall theory have not met outstanding success. Nor has doctrine beenevolved to deal with some of the newer problems, where the issue is not purerestraint on government interference but rather the use of governmental powerto encourage freedom of expression or the actual participation by governmentitself in the realm of expression.'
This article discusses the French puppet news program Les Guignols de l'info, one of the oldest and most significant satirical television news shows in the world. It combines historical, semiotic, and political economy approaches in assessing the show's contribution to the scholarly debate on news parody. Les Guignols is explained in terms of the transformation of the French network television system and the creation of Canal+. It represented a new mix of genres and assisted network Canal+ to counterprogram successfully and build a brand identity. This, in turn, shaped the political economic framework, legitimatizing commercial television as being in both the national and the public interest. The article considers questions of the relationship among genre, truth, and branding from a political economic perspective.
T HE public domain is all the rage. It is invoked to breach copyright’s encroaching enclosure of what one might grandiloquently call the cultural commons of the mind. The heralds of our “remix culture” deploy the public domain to smash that icon of the entertainment–industrial complex, the Romantic Author. But even before the Author became Romantic, he still served as a shill for concentrated industry, then the printing–bookselling complex. Authors’ moral claims of labourious entitlement merely masked the power grab of the printers. If we speak of a grab, we imply that copyright was seised from somewhere. So whence, in this account, was copyright wrested? From the public domain.
University of Toronto Law Journal 56.1 (2006) 75-114
Having locked potentially antagonistic rights into 'logic-tight compartments,' Canadian courts have been surprisingly successful at maintaining the separation of freedom of expression considerations and copyright law. However, given the nature of the copyright interest, there are necessarily moments where both copyright and the right of free expression are irrefutably at play, and apparently in conflict. In such instances, this neatly compartmentalized understanding leads to an overly simplistic resolution: one concern is temporarily given precedence over the other (balance), forced to give up ground (compromise), or made to give way completely (trump). The characterization of copyright as a species of private property entitlement tends to afford it moral and legal primacy. This causes free expression concerns to give way to private copyright control and, I will argue, thereby shifts copyright law further from the justificatory foundations upon which it stands.
My purpose in this article is to show that the characterization of copyright and freedom of expression as individual rights vested in the liberal subject undermines the importance of both sets of interests and ultimately restricts the communicative activity that both copyright and freedom of expression are intended to further. The social values that lie at the core of the copyright system are the same as those affirmed by our belief in the guarantee of freedom of expression: the value that we attach to communication, to interaction between members of society, and to participation in a social dialogue. The key to understanding the relationship between freedom of expression and copyright is to see them both in light of their mutual goal: that of maximizing cultural flows and channels of communication between members of society. To ensure the effectiveness and legitimacy of copyright, it must therefore embrace the values of freedom of expression, for these values are its own. Premised upon this assertion, my argument will be that a vision of copyright as a private, proprietary entitlement capable of trumping free expression interests disrupts the internal coherence of the copyright system. Rather than purporting to reconcile the irreconcilable, then, copyright policy should concern itself with fostering the human, creative capacities that it is intended to encourage. To the extent that it does so, no antitheses require resolution.
In Part II of this article, I describe the conflict that exists at the level of individual rights between freedom of expression, as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms, and the rights granted to authors of original works pursuant to the Copyright Act. The discussion provides an overview of the way in which the Canadian courts have defined freedom of expression and have approached its relationship to intellectual property. In Part III, I examine the approach taken in the case of Cie Générale des Etablissements Michelin – Michelin & Cie v. CAW-Canada, where the court's vision of the nature and purpose of copyright led to a conclusion that contravened both the goals of the copyright system and the principles of free expression. My discussion criticizes the court's reliance upon analogy with physical property and private property rights and its invocation of the form/content divide. In Part IV, I examine...
It is widely believed that there is more freedom of speech in America today than there was at the time of the founding. Indeed, this view is shared by liberal commentators, as one would expect, as well as by leading conservatives, which is more surprising. “The body of law presently defining First Amendment liberties,” writes liberal law professor Archibald Cox, grew out of a “continual expansion of individual freedom of expression.” Conservative constitutional scholar Walter Berns agrees: “Legally we enjoy a greater liberty [of speech] than ever before in our history.” This shared assessment is correct—from the point of view of the political theory of today's liberalism—but it is incorrect from the point of view of the political theory of the American founding.
The labor theory of value is fundamental to John Locke’s justification for property rights, but philosopher Edwin Hettinger argued in an oft-cited article that it fails to justify intellectual property rights. In making this critique, though, Hettinger redefined Locke’s theory into a theory about proportional physical labor creating economic value, just as Robert Nozick, G.A. Cohen and other philosophers have done. In response to this strawman attack, this article describes Locke’s labor theory of value and how Locke himself applied it to intellectual property rights. It does so by analyzing the actual text of the Second Treatise, including many forgotten or neglected sections, and by integrating Locke’s property theory within the context of his natural law ethical theory, as presented in An Essay Concerning Human Understanding and in other works. In its proper context, Locke’s concept of labor refers to production, which is both an intellectual and physical activity. His concept of value refers to what serves the flourishing life of a rational being, which is a conception of the good that is more robust than merely physical status or economic wealth. Locke’s own text and philosophical arguments answer the absurdities imposed on him by Hettinger, Nozick, Cohen and others. Even more important, understanding his labor theory of value explains why Locke expressly approves of inventions in his property theory and why he explicitly argues that authors have property rights (copyrights) in their writings, which are arguments that are seemingly lost on his modern critics.
Unlike the legal discourse in the United States, the relationship between copyright law and freedom of expression has not been directly discussed in English case law until recently, nor has it been discussed extensively in the literature. The article examines the relationship of copyright law and freedom of expression in the United Kingdom in light of Ashdown v. Telegraph Group Ltd., a case recently decided by the Court of Appeal. This claim, that there is some tension between the imperative of copyright law (thou shall not use another's expression, unless the use is fair) and the core of the right to freedom of expression, has been ignored for a variety of reasons. However, the recent enactment of the Human Rights Act 1998, which came into force in October 2000, and its (partial) incorporation of the European Convention of Human Rights, challenge this common wisdom. For the first time in English law, freedom of expression has gained an explicit status in the legal landscape. Consequently, Ashdown closely examined the relationship of copyright law and freedom of expression. The court concluded that, as a general rule, freedom of expression should have no impact on the regular course of copyright litigation. But it also observed that "...rare circumstances can arise where the right of freedom of expression will come into conflict with the protection afforded by the Copyright Act...", and that "in these circumstances, ... the court is bound, ... to apply the [copyright] Act in a manner that accommodates the right of freedom of expression." This is a fascinating conclusion, especially in comparison to the consistent American judicial denial of any conflict between the two legal regimes. This article proposes a framework within which to examine the intriguing intersection of copyright law and freedom of expression. The analysis draws on the American experience and on a constitutional inquiry and proposes a framework within which to examine the intriguing intersection of copyright law and freedom of expression. The Ashdown case serves as a leading example. The author distinguishes between an internal conflict within copyright law and an external conflict, on the constitutional level, and argues that in interpreting copyright law both points of view should be taken. The article further attributes the denial of a conflict to the failure to separate the two points of view.
A Treatise of Human Nature / David Hume Note: The University of Adelaide Library eBooks @ Adelaide.
The Principles of Political Economy with some of their applications to social philosophy / John Stuart Mill Note: The University of Adelaide Library eBooks @ Adelaide.
Socratic Parrhesia and Its Afterlife in Plato’s Laws, in Free Speech
- Marlein Van Raalte
What Does a Well-Ordered Society Look Like?
- Jeremy Waldron
The Roots of Modern Racism, The Critique
- Julie K Ward
The first freedom: a history of free speech
- Robert Hargreaves
How the Grinch Silenced a Parody; citation_author=Ochoa, Tyler T; citation_publication_date=1998; citation_journal_title=J
- The Seuss
- Fair Juice
- Use
Weird Al Ponders Lady Gaga Parody, Reuters
- Gary Graff
Aristocracy and Freedom of Speech in the Greco-Roman World
- Kurt A Raaflaub
The Cambridge Companion to Rawls
- Samuel Freeman
Salinger’s Love Letters Sold to Entrepreneur Who Says He Will Return Them
- Dinitia Smith
Pittsburgh Woman’s Letters from
- Lorri Drumm
Free Speech in an Economics Perspective, 20 Suffolk U
- Richard Posner
The Juice and Fair Use: How the Grinch Silenced a Parody; citation_author=Ochoa, Tyler T.; citation_publication_date=1997; citation_journal_title=J
- Seuss