Life after CCH: Flexibility or Uncertainty?

In a controversial decision, the Supreme Court of the State of New York held that the use of a music recording in a film falls under the protection of “fair use.”[1] The film in question defends the theory of Intelligent Design which refers to the idea that the world is created by an omnipotent designer (i.e. Christian God). During one of the segments of the film, critics of the theory are quoted expressing anti-religious sentiments, and in the background a 15-second clip from John Lennon’s “Imagine” is played, namely the lyrics: “Nothing to Kill or die for/ And no religion too.” The film producers argue that this use is transformative, as it was used at that specific point in the film to critique the anti-religious views of the critics. The court agreed that the use of the clip was transformative and “that the secondary work may have a commercial purpose does not undercut a finding of transformative use.”[2] 

The user-centric underpinning of this US decision exhibits similarities to the recent Canada Supreme Court decision of CCH Canadian Ltd. v. Law Society of Upper Canada;[3] which raises the question of whether a Canadian court would reach a similar decision if confronted with this very same case? Given the shift towards “user rights” in CCH, it is likely that the court would rule in favour of the film producers as the US court did. To demonstrate that the dealing was fair, CCH states that one must show: i) that the purpose of the dealing is allowable under the enumerated purposes of the Copyright Act [4] (this includes demonstrating sufficient acknowledgement where necessary) ii) the dealing must be fair, here the court provides six non-exhaustive factors to consider when making this determination. [5] The Court makes it clear that the aforementioned analysis is to be given a “large and liberal interpretation” to avoid unduly constraining users’ rights. [6] Applying the CCH principles to the facts of this case foreshadows the challenges that the courts might face in future cases on fair dealing, namely that such a liberal interpretation may lead to ambiguity and uncertainty in future decisions.

To illustrate this point, consider the application of the first CCH factor, the “purpose of the dealing” to the case in question. Although the use of the music clip in the film might fall under the enumerated purpose of criticism [7], it is unclear whether it will satisfy the sufficient knowledge requirement.[8] If it does not satisfy this requirement then traditionally this would fall outside of the ambit of fair dealing protection. However, with the liberal interpretation afforded by CCH, this requirement could be overlooked, for example, it could be decided that given the notoriety of the song and the artist, acknowledgement is not necessary in this specific case.[9] The problem is that, such a liberal interpretation does not provide sufficient stability and consistency for future decisions, and similar cases with only minor contextual differences may be decided differently.

Although the CCH decision has been a great step forward for users’ rights, it could also create uncertainty in predicting the outcome of a case, and can lead to more arbitrary decisions. It will be interesting to see how the fair dealing cases will be dealt with in the future, and how the limitations of the CCH decision will be remedied.