US fair use really makes a difference ... but just sometimes

The copyright-related divertissement this summer was the joint IPKat/1709 Blog poll that followed the decision of the US 9th Circuit in Seltzer v Green Day (here and here) and sought readers' opinion on the following issue:

Do you think that US fair use really makes a difference in terms of user freedoms?

The poll closed a few hours ago, attracting 123 votes (a warm "thank you" from the IPKat and 1709 Blog teams to those who took the time to let us know what they think!).

The majority of voters (33%) believe that an open-ended US-style fair use defence is especially useful when it comes to new technologies and problems. Capturing just two votes less than the winning entry, 31% of readers hold the view 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% of voters believe that US fair use is not that different from closed systems of exceptions and limitations. Finally, 13% of voters think that US fair use makes a real difference indeed, in that it unduly limits the rights of rightholders.

Speaking of the winning entry from an EU perspective, this Kat remembers the recent proposal of Prof Bernt Hugenholtz (IViR - University of Amsterdam) to revise the system of exceptions and limitations currently envisaged by Article 5 of the Information Society Directive

Sunshine + beach conversation on fair use =
The perfect holiday

"Opening up the [Information Society] Directive's closed list to allow other fair uses that promote innovation and cultural development should feature high on the European Commission's legislative agenda for the near future. A straightforward way to do this would be by allowing Member States to provide for other (that is, not specifically enumerated) limitations and exceptions permitting unauthorized uses, on the condition these uses comply with the so-called three-step test  The three-step test, which is part of the WTO's TRIPS Agreement and other international treaties that are binding upon the EU, is already incorporated in the Directive as an overarching norm preventing Member States from introducing overbroad copyright limitations. The test requires that exceptions: apply only in certain special cases; not conflict with the normal exploitation of copyright works; and not otherwise unreasonably prejudice the interests of rights holders. By combining the present system of circumscribed exceptions with an open norm that would allow other fair uses, a revised Directive would better serve the combined goals of copyright harmonization and promotion of culture and innovation."

This Kat likes this proposal and finds it to be an interesting compromise between US-style fair use defence and closed systems of exceptions and limitations in the (heterogeneous) copyright traditions of EU Member States.

The EU recently announced plans to revise the Information Society Directive. Among other things, the Commission wishes to assess the extent to which the current level of harmonisation as well as the scope of the limitations and exceptions to copyright are appropriate for the digital age, given that they were implemented to varying degrees in the Member States. Let’s wait and see what happens then.