Are closed systems of exceptions and limitations outdated?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.

Should the EU have a specific UGC exception or even fair use?

Earlier today, the IPKat launched a poll [which you can find at the top of the left-hand side of the IPKat side bar] asking readers the following question:

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

The poll was prompted by publication on Facebook of California-based "blue-eyed gang member" Jeremy Meeks's mugshot. 

The photograph has attracted immediate and increasing popularity, probably because of Jeremy's good looks. 

There have been also suggestions that this particular Jeremy would make a perfect model. To prove why this would and should be the case, some users have created fake fashion campaigns using Jeremy's mugshot and a bit of Photoshop. 

But, by using his photograph, can any copyright-related issues arise?

Under US law the response should be pretty straightforward, in the sense of 'No' being likely answer, as any potentially infringing activities might be considered fair use within §107 of the Copyright Act, particularly because of their transformative nature [as recent examples, see Cariou v Prince, here, and Seltzer v Green Day, here].   

But what would happen in a different jurisdiction, say the UK?

As current [and future: see leaked Commission's White Paper here] EU copyright framework does not provide for a specific exception for user-generated content, potential infringement issues might arise given the likely insufficiency of current and forthcoming exceptions - such as parody - to cover activities like those of Jeremy's fans.

Should things change? You have time until 7 July to let us know what you think! Do vote!