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IPKat readers want fair use: can you believe that?

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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:

DO YOU THINK THAT EU COPYRIGHT SHOULD HAVE A SPECIFIC EXCEPTION FOR USER-GENERATED CONTENT (UGC)?

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 Directive] and 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.

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