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The novel as social satire: 60 years later, the wind done gone and the limitations of fair use

Thampapillai, Dilan 2013, The novel as social satire: 60 years later, the wind done gone and the limitations of fair use, Deakin law review, vol. 17, no. 2, pp. 425-452.

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Title The novel as social satire: 60 years later, the wind done gone and the limitations of fair use
Author(s) Thampapillai, Dilan
Journal name Deakin law review
Volume number 17
Issue number 2
Start page 425
End page 452
Total pages 28
Publisher Deakin University School of Law
Place of publication Burwood, Vic.
Publication date 2013
ISSN 1321-3660
Keyword(s) copyright law
Australia
parody
fair use
literary re-writes
Summary The absence of the doctrine of fair use from Australian copyright law has been a bone of contention in Australia after the Australia-United States Free Trade Agreement (FTA). As the Australian government reformed the Copyright Act 1968 (Cth) in the aftermath of the FTA it eschewed the option of adopting fair use. Instead, Australia chose to incorporate a version of fair use into its existing fair dealing framework. Accordingly, the Copyright Amendment Act 2006 (Cth) inserted ss 41A and 103AA into the Copyright Act. These provisions provide that a fair dealing with a copyright protected work does not constitute an infringement if it is done for the purposes of parody or satire. These provisions codify part of the ratio of the United States Supreme Court in the seminal case of Campbell v Acuff Rose Music. However, the parameters of these new provisions are unexplored and the sparse nature of fair dealing jurisprudence means that the true meaning of the provisions is unclear. Moreover, two cases from the United States, SunTrust Bank v Houghton Mifflin and Salinger v Colting, underline just how important it is to have legal rules that protect literary ‘re-writes’. Both cases involved authors using an original novel to ‘write back’ to the original author and the broader culture. ‘Writing back’ or the ‘re-write’ has a firm basis in literature. It adds something invaluable to our culture. The key question is whether our legal landscape can allow it to flourish. This paper examines the interaction between fair use and literary re-writes.
Language eng
Field of Research 180115 Intellectual Property Law
Socio Economic Objective 940405 Law Reform
HERDC Research category C1 Refereed article in a scholarly journal
Persistent URL http://hdl.handle.net/10536/DRO/DU:30054084

Document type: Journal Article
Collection: School of Law
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