Flaherty, Ruth (2022) Fair dealing in a fandemic: how pastiche can be used to clarify the position of user-generated content. European Journal of Law and Technology, 13 (1). pp. 1-12.

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Abstract

During the recent COVID-19 pandemic, amateur writers have increasingly been reusing characters, locations, and plotlines from commercially successful works to bring alternative viewpoints and storylines to life. This type of user-generated content is called fanfiction, produced mostly for free online on websites such as Fanfiction.Net as a method of escapism and communication. This is one of many uses of the Internet which raises issues in relation to copyright in a digital market, and how it interacts with freedom of expression. Copyright theory tells us that by protecting the author’s natural rights to control their works, we also protect that author’s ability to express themselves. Yet, by limiting what can be done with their work, we are limiting the freedom of expression of later authors. This article attempts to clarify the balance that is struck between these two ideals, using a case study approach of fanfiction and the fair dealing exceptions such as parody or pastiche. Clarity in this area was vital during a lockdown, when more cultural interactions were undertaken online, and standard methods of income generation were blocked to creators. This article analyses the fair dealing exceptions as they stand in UK law after the recent Pelham/Funke Median cases, and suggests a potential test for the pastiche exception in UK law in s30A CDPA 1988.

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