Whose Fair Dealing? Third-Party Reliance on the Fair Dealing Exception for Parody or Satire

The Copyright Act 1968 (Cth) exempts from infringement a fair dealing “for the purpose of parody or satire”. The statute is silent as to whose purpose falls within the ambit of the exception, and whether it extends beyond the parodist’s purpose to the purpose of third parties involved in the production and dissemination of parody. A 1990 Federal Court case, De Garis v. Neville Jeffress Pidler Pty. Ltd., effectively excluded third-party purpose, and while occasionally overlooked it has not been overruled or expressly disapproved. De Garis isolates many third parties from immunity, and its potential application to the parody exception is particularly problematic, because parody relies on third parties for its dissemination. This may defeat or seriously hamper Parliament’s objective in introducing the exception, which was to enhance public access to copyright material and allow it to be used for socially useful purposes. The potential for De Garis to fetter the parody exception has been noted by the Australian Law Reform Commission and others in advocating the introduction of a US-style fair use exception. The Commission’s 2013 recommendation to introduce a fair use defence was ignored, which dilutes confidence that the Productivity Commission’s identical recommendation in 2016 will be adopted. If fair use reform seems unlikely, it is more important than ever to perfect the purpose construction in the fair dealing regime. This article explains the problems generated by De Garis and advocates for a flexible interpretation of purpose that accommodates the important role played by third parties in disseminating parody.