The Innovation Society and Intellectual Property
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The Innovation Society and Intellectual Property

Edited by Josef Drexl and Anselm Kamperman Sanders

Intellectual property (IP) rights impact innovation in diverse ways. This book critically analyses whether additional rights beyond patents, trademarks and copyrights are needed to promote innovation. Featuring contributions from thought-leaders in the field of IP, this book examines the check and balances that already exist in the IP system to safeguard innovation and questions to what extent existing IP regimes are capable of catering to new paradigms of innovation and creativity.
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Chapter 11: Transformative use and user generated content - Integrating new paradigms of creativity in copyright law

Matthias Leistner and Verena Roder-Hießerich


The authors outline the legal situation in regard to user generated content (UGC) in European and international copyright law and proceed to further examine the example of German law. This is of particular interest because German law contains a doctrine of so-called free use, which would allow, on principle, appropriate dealing with derivative or transformative works in the context of UGC. However, it is doubtful whether this doctrine is compliant with the strict framework of exceptions to copyright law in the European InfoSoc-Directive. The German reference to the CJEU in the case Metall auf Metall might provide for future clarification. In this context, the authors argue in favour of the development of a ‘free use’ doctrine in European case law de lege lata. In particular, such doctrine seems indispensable in order to fairly balance the involved fundamental rights in the UGC sector. Also, moral rights will have to be considered when regulating the field of UGC. The authors further consider innovative solutions de lege ferenda, such as the example of the new Canadian exception for UGC. As a result, they argue for a general flexibilisation of the closed shop catalogue of possible exceptions to copyright by reforming the European InfoSoc Directive. Such legislative reform would also have to take the UGC sector into account, preferably by way of a targeted remunerated exception and certain subjective rights of creative users instead of a mere defence.

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