Browsing English by Author "Davis, Jessica Milner"
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ItemDefining parody and satire: Australian copyright law and its new exception(2008) Condren, Conal; Phiddian, Robert Andrew; Davis, Jessica Milner; McCausland, SallyThe 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. ItemDefining parody and satire: Australian copyright law and its new exception: Part 2 - Advancing ordinary definitions(2008) Condren, Conal; Davis, Jessica Milner; McCausland, Sally; Phiddian, Robert AndrewIn Part 1 of ‘Defining Parody and Satire’ we sought to show that, for the purposes of the new exception to infringement of the Copyright Act in ss 41A and 103AA (the ‘new exception’), it is unsafe to construe parody and satire according either to US law on the matter or to available dictionary definitions. In this part we propose working definitions for parody and satire which, we suggest, are more congruent with both the intention of the Act to protect the free speech of Australian humorists and with the ordinary meanings of the words. There are four categories of artistic practice that the new Australian exceptions would seem designed to protect. The largest two groups combine the two terms: (1) satirical parodies in which copyright material is reused and distorted for the satirical effect of ridiculing that material. These are the staple of many literary, theatrical, video and digital media. We propose a metaphor of the satirical fist of critical intent animating the parodic glove of formal reuse to help comprehend this group particularly. (2) A group of satirical parodies where the target is not the artistic form parodied, but where the parody, for example of a popular song, provides a vehicle for satirical comment of some other person, group, or event. (3) Pure parody — formal play without discernible satirical intent either towards the vehicle text or any other potential target. This is, perhaps, most common these days in the visual arts, where a layering of pre-existing images creates juxtapositions which defy rhetorical purpose; there is also an established tradition of affectionate literary and dramatic parody. (4) Straight or pure satire, which may be independent of parody, but which may also quote its object so that the audience can know what the target is, without distorting the form of that object (text or image) in parodic ways. This category would include the use of excerpts of television broadcasts which became the subject of Australian copyright litigation in the well known ‘Panel’ case decided before the introduction of the new exception. We submit that unlicensed use of copyright material in all of these categories should enjoy the protection of the new Australian exception, subject to the issues of ‘fairness’ and possibly also moral rights in particular instances — a consideration of which is beyond the scope of this article. The definitions of parody and satire we will propose are: Parody: the borrowing from, imitation, or appropriation of a text, or other cultural product or practice, for the purpose of commenting, usually humorously, upon either it or something else; Satire: the critical impulse manifesting itself in some degree of denigration, almost invariably through attempted humour; the artistic results (usually humorous) of expression of such a critical impulse.