Are closed systems of exceptions and limitations outdated? Here are IPKat poll results

How would this Jeremy vote?

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 the IPKat launched a poll [here] 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.

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).

A bit more of comment back on the IPKat here.

What will the CJEU decide in Svensson? A snap katpoll

Less than 48 hours left before the Court of Justice of the European Union deliver its keenly awaited judgment in Case C-466/12 Svensson [here], a reference for a preliminary ruling from Sweden seeking clarification - among other things - as to whether providing a 'clickable link' falls within the scope of copyright protection. 

In particular, is a hyperlink tantamount to an act of communication to the public pursuant to Article 3(1) of the InfoSoc Directive which, as a result, requires the authorisation of the relevant copyright holder?

Question #1 in Svensson reads as follows:

"If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society?"

The IPKat and Merpel have just launched a poll asking readers what answer the CJEU is likely to provide to this question. In particular:

HOW WILL THE CJEU RULE ON THE LEGALITY OF HYPERLINKS?

You have time until Thursday 13 February at 8.30 am BST to cast your vote. You can do so by selecting your preferred option at the top of the IPKat left hand side bar. DO VOTE!

How far will exhaustion go after UsedSoft? Do let us know!

Calling all exhaustion fans! The IPKat has just launched a poll to gather readers' opinion as to whether the ruling of the Court of Justice of the European Union (CJEU) in Case C-128/11 UsedSoft v Oracle (see Katposts here and 1709 Blog posts here) is likely to be extended to subject-matter other than software.

As 1709 Blog readers will remember, in that case decided almost a year ago the CJEU ruled that 

"Article 4(2) of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs must be interpreted as meaning that the right of distribution of a copy of a computer program is exhausted if the copyright holder who has authorised, even free of charge, the downloading of that copy from the internet onto a data carrier has also conferred, in return for payment of a fee intended to enable him to obtain a remuneration corresponding to the economic value of the copy of the work of which he is the proprietor, a right to use that copy for an unlimited period."

Pro- vs anti-exhaustion: who will win?

A few months ago a German court held (see Katpost here) that, because of the nature of the Directive 2009/24 (the Software Directive) as lex specialis, the reasoning in UsedSoft could not be applied to other subject-matter (downloadable ebooks and audiobooks in that case). 

However, from the mini-poll that this blogger ran while in Oxford to attend the ATRIP Congress, there seems to be growing belief that the CJEU, when given the opportunity to do so, would rule that exhaustion does indeed apply to digital works other than software.

The main arguments to support this conclusion are CJEU's overriding concerns with ensuring free movement within EU internal market and the fact that ebooks, downloadable audiobooks, digital music are not really "on-line services" for which "the question of exhaustion does not arise" (see Recital 29 to the InfoSoc Directive).

Do vote in the Exhaustion Katpoll!

This blogger is however slightly concerned whether this might be really the case, in that the Court made it quite clear that its conclusion descended from the special nature of the Software Directive. Furthermore, one of the aims of the InfoSoc Directive was to transpose the WIPO Copyright Treaty into EU legal order. The right of distribution as per Article 6 of the Treaty concerns just tangible - not also intangible - copies. Hence, is it possible to say that exhaustion as per Article 4(2) of the InfoSoc Directive applies only to tangible copies?

You have time until Friday 5 July to cast your vote, by clicking your chosen button on the left-hand side of the IPKat content bar.