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Tuesday, 8 July 2014

IPKat readers want fair use: can you believe that?

New Katpoll:
Do you think that she got home
in time to vote in the UGC poll?
On the wave of sexy felon Jeremy Meeks's photographic (and photogenic) success and subsequent hypothetical fan-created fashion campaigns starring this California-based "blue-eyed gang member", on 23 June last this blog launched a poll asking its readers the following question:


The poll closed last night at 23:59 GMT. It attracted 356 votes, so thanks so much to all those who took the time to respond!

An impressive majority (48%, ie 172 votes) thinks that what the EU needs is not just a specific UGC exception, but rather to replace its enumerated system of exceptions and limitations [see Article 5 of the InfoSoc Directiveand go for an open-ended fair use provision, probably modelled on US fair use ("Tell you what! Let's just go for open-ended fair use" was the relevant option). 

Another 20% (73 votes) would favour the introduction of a specific UGC exception ("Yes, it is inconceivable that EU copyright does not have such an exception" was the answer to tick) while maintaining EU-style closed system of exceptions and limitations.

Gigi busy with stretching
to enhance her
legendary flexibility
56 readers (15%) think that there is no need for a specific exception, since any lack thereof has not been a deterrent to user creative endeavours ("There's no need, since lack of specific exception for user-generated content has not been a deterrent" was the relevant answer). Curiously, this seems to be currently the position of the EU Commission. In an internal draft of the much-awaited White Paper as leaked by this very blog, the Commission would not appear too keen on having a specific exception for user-generated content. Instead, a combination of different tools could be considered in order to reduce possible grey areas surrounding UGC, including clarifying the application of existing exceptions and limitations and envisaging a licensing mechanism for uses that do not fall within current framework.

With one vote less than those who think that lack of a specific exception for user-generated content has not been really a problem, another 15% (55 readers) believes that the EU should not provide for any additional exceptions, as existing ones are enough, if not too many already (“No way: it seems to me that there are already far too many exceptions” was the relevant option).

Were the results of Jeremy (Meeks)-inspired poll surprising? A bit. 

In fact, less than a year ago, this blog hosted another, very similar, poll, asking its readers: “Do you think that US fair use really makes difference in terms of user freedoms?”. 

Guarding the copyright manor:
no more exceptions,
warns Archie
Prompted by the decision of the US Court of Appeals for the 9th Circuit in Seltzer v Green Day, that poll attracted 123 votes, with 33% suggesting that an open-ended US-style fair use defence is especially useful when it comes to new technologies and problems, and 31% saying that having a US-style fair use defence is the only way to ensure fair balance of interest between rightholders and users. On the sceptical front, 26% believed that US fair use is not that different from closed systems of exceptions and limitations. Finally, 13% of voters thought that US fair use makes a real difference indeed, in that it unduly limits the rights of rightholders.

It would now seem that - should a contingent of IPKat readers be put in charge of copyright policy at the Commission level - not only would the EU provide for more exceptions and limitations to copyright, but actually go for an open-ended system. 

So, is replacing EU-style closed system of exceptions or limitations with a more flexible approach something for the next Commission to consider?

Who knows ... Meanwhile, you may want to read Neelie Kroes’s latest take on (EU) copyright here.


Pedro Malaquias said...

The CJEU is not the SCOTUS and it would not be able to provide proper guidance on how should such an an open-ended l&e be interpreted. In my view, such a soluton would result in a (further) lack of harmonisation.

Instead, we would be better off with updating the current list of l&e and end with the pick and choose system.

Luciano M said...

Fair use, US style, is terrible policy. It is a vague concept, which generates conflicts that take years to be solved (if they are solved) at the courts.

Jeremy said...

Pedro, I think the most attractive thing about fair use, if properly handled, is that it shouldn't keep needing legal guidance. By the time the CJEU does what it has now started doing for another elastic concept-- likelihood of confusion -- and throws it back to national courts to decide, we'll have a concept that works because it's so closely aligned with common sense that there's nothing to be gained from litigating it.

Luciano: the only disputes that take years to resolve are the ones that go to court -- but fair use is relied upon, on a day by day basis, by literally millions of people and this never goes to court!

Anonymous said...

To contrast Jeremy's post with Luciano M's post:

The court cost and driver is not so much "vagueness" in the concept (Jeremy is closer to the mark as to not needing legal guidance), but rather, the - I would posit rather clear - guidance already there is necessarily a case by case multi-factor balancing test. It is the nature of such a test - much more so than any notion of vagueness - that generates the time and expense in the courts. The conflicts - which drive the court appearances in the first instance have nothing to do with either the attributed vagueness, nor the balancing test, and everything to do with $. Court battles are (typically) not waged unless there is money at stake. We live in an information-age copyright-is-dollar society, and that is the driver of court action. That is simply human nature.

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