Orphan Works Poll: either there is no freedom or we just don't know

A few days ago the IPKat and The 1709 Blog joined forces [background information is available here] and launched a poll asking readers the following question:

DOES THE ORPHAN WORKS DIRECTIVE LEAVE EU MEMBER STATES COMPLETELY FREE TO LEGISLATE AUTONOMOUSLY IN THE AREA OF ORPHAN WORKS? 

The question was prompted not just by recent publication of this Kat's article The Orphan Works Provisions of the ERR Act: Are They Compatible with UK and EU Laws? [where 'ERR Act' stands for Enterprise and Regulatory Reform Act 2013] in the European Intellectual Property Review [also available here], but especially by the numerous comments that Jeremy's 1709 Blog post attracted.

The poll is now closed: many thanks to the readers (112) who took the time to let us know what they think. The results are as follows:

• 3% (4 votes) think that the Directive leaves Member States completely free to legislate as they please in the area of orphan works.
• 40% (45 votes) agree with this Kat's proposition that the Orphan Works Directive is clear in leaving little room for independent national initiatives, and these do not include legislating autonomously in the area of orphan works and as broadly as the UK did.
• 17% (20 votes) think that UK Government is right: the Directive may leave Member States limited freedom to legislate autonomously in the area of orphan works, but Section 116A CDPA [as introduced by Section 77 of the ERR Act] is perfectly compliant with EU law.
• Finally, 38% (43 votes) believe that we cannot be sure whether the ERR Act orphan works provisions are compatible with EU law until whatever is enacted [Section 116A in fact requires the Secretary of State to adopt implementing regulations] survives a challenge before the Court of Justice of the European Union.