It all started when Lenz posted a YouTube video of her then-toddler-aged son dancing while Prince’s song “Let’s Go Crazy” played in the background, and Universal used copyright claims to get the link disabled.
The case brought to the court is: whether a rightsholder can use the Digital Millennium Copyright Act to take down an obvious fair use, without consequence?
After 10 years of litigation, the ruling of the court clarified that fair use is not simply a narrow defense to copyright infringement but an affirmative public right. In other words, at least in US, fair use may potentially be used as a sword. Rightsholders must at least consider fair use before sending a takedown notice. The appeals court made clear that fair use is not an “infringement to be excused” but instead is not copyright infringement at all.
It remains to be seen whether the fair dealing doctrine in Canada will be applied in the same way.
Also the baby in dancing baby case is now a middle-school student!
https://www.eff.org/deeplinks/2018/06/after-more-decade-litigation-dancing-baby-ready-move
Communications Law
I have a feeling that the SCC will continue to use a balanced approach. It feels like a common theme from everything we learned so far in IP is that the SCC loves the middle. Every key decision seems to be a scholastic attempt to combine two opposing view points. In York v. Access Copyright, the SCC quotes Prof. Geist and says:
“The core of fair dealing is fairness — fairness to the copyright owner in setting limits on the use of their work without permission and fairness to users to ensure that fair dealing rights can be exercised without unnecessarily restrictive limitations.”
This is a statement of pure neutrality. There are no swords or shields; everyone is armed with a pike. This case is also fairly recent and if I recall correctly the main one since the pentalogy, so I have feeling this approach will remain for at least some time. However, all it takes is a the right case with the right set of facts. The case you list is a good example. There, the copyright violation is so plainly innocent, and the reaction is so obviously heavy-handed. It’s one of those situations where “the facts cry out for a remedy.” If something similar happens in Canada, where there is such an egregious attempt to limit user rights, then maybe the courts will expand user rights.