The battleground between copyright protection and parody exceptions is not new. The US Supreme Court tested the fair use framework provided for under US copyright law in its well-known 1994 decision regarding a parody of Roy Orbison’s title song to the blockbuster movie Pretty Woman; arguably, no other single court decision had a similar impact on the copyright law treatment of parodies both in the US and internationally. The notion that the use of copyright-protected content in a parody should be generally permissible under copyright law has gained widespread traction across most jurisdictions. At the same time, the question of what exactly constitutes a parody varies from country to country and from culture to culture. This chapter provides an overview of the development of copyright exceptions related to parody under German and Japanese law, and highlights how a different tradition of parody can result in different copyright law interpretation.

Economic analysis understands intellectual property laws, including copyright law, as necessary to protect markets for information goods against an appropriation problem. The core value of creative and innovative product is the information on which books, movies, and inventions are based. Information is non-excludable to the extent that once it is distributed to some, it is difficult to prevent access to others.

It is often assumed that an open-ended limitation to copyright, such as the fair use defense, is alien to the civil law tradition as it gives too much power to judges to design the contours of copyright law on a case-by-case basis. However, the increasing use of fundamental rights in copyright disputes in many civil law countries is challenging that assumption, raising the question of whether a sort of “fair use” limitation is not already being wielded through the weighing of interests and use of the proportionality test, both of which are required when the judiciary is applying fundamental rights. It will be shown in this chapter that even in France, traditionally considered an exemplar of civil law reasoning in copyright matters, a recent and highly commented-upon decision of the French Supreme Court concerning the balancing of freedom of artistic expression with copyright has paved the way for a judicial in concreto assessment of copyright limitations. This change in approach by the courts can be witnessed not only in France but also in many other civil law jurisdictions across Europe, and even by the Court of Justice of the European Union (CJEU), thus strengthening the argument for the introduction of an open clause for limitations in EU copyright law.

In an article written some years ago, I expressed the concern that those who were in favor of the United Kingdom (UK) and other Commonwealth countries moving to a fair use model of copyright exceptions were not paying sufficient attention to how judges would react to the introduction of such a defense. The universal assumption seemed to be that the problem lay solely with the quality of the legislative tools available to judges. In contrast, I sought to demonstrate that if judges were unable to protect users, this was in large part because they had divested themselves of tools that could have been used to provide such protection. I argued that, viewed over a long sweep of history, judges in the UK had demonstrated a reluctance to protect user interests. My argument was that without a change in judicial attitudes a fair use defense would be applied parsimoniously and hence users would see little, if any, benefit. This argument gained some traction, and the observation that we need to think about exceptions reform not merely in terms of drafting choices, but also in terms of judicial culture, now appears to be broadly accepted.

Malaysia and Singapore are alike in many respects. Both are melting pots of cultures of three main ethnic groups, namely the Chinese, the Indians, and the Malays. Singapore was even once part of Malaysia, and quite a few living on either side of the Causeway are related by blood and family ties. Both countries also inherited the common law system, a legacy from the days when they were under British protection and rule. More specifically in the realm of copyright law, Singapore and some states in Malaysia had once applied the UK Imperial Copyright Act 1911. In fact, this imperial legislation remained in force in Singapore and those states in Malaysia for many years after these two countries became sovereign states. On the international front, both countries are World Trade Organization (WTO) members as well as contracting parties to the Berne Convention for the Protection of Literary and Artistic Works (“the Berne Convention”), the World International Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty.