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78 implemented at all. Legal uncertainty inevitably arises from this mixture of applicable rules.

The provisions concerning the legal protection of TPMs do not fare any better. The Directive’s rules on TPMs have had a modest harmonising effect at best. The vague wording of articles 6(1) and 6(2) of the Directive again leave much to be desired in terms of legal certainty. The wording of Article 6(4) is particularly convoluted and obscure. The provision fails to instruct Member States what “appropriate measures” should be taken to protect disenfranchised users, or how long they should wait before taking action. Moreover, Member States are left with complete discretion as to the procedures leading up to such measures. Pursuant to article 6(4) paragraph 4, however, these “appropriate measures” are no longer applicable any time that a work is made available to the public via interactive services on agreed contractual terms. The distinctions in treatment between the different limitations and between works that are made available interactively or not—distinctions for which no convincing justification has been put forward—will inevitably affect the provision’s balanced character to the detriment of the users.

The assessment of the boundary between infringing and non-infringing conduct remains, therefore, highly uncertain and unpredictable. One consequence of the prevailing uncertainty regarding the scope of limitations in the digital networked environment has been to force users to negotiate the conditions of use of protected works with every single rights holder, for every territory involved. In an online cross-border setting, this can be a very cumbersome endeavour. Moreover, legal uncertainty is no solid ground for negotiations, for it inevitably leaves the outcome to the strongest party. Even in the absence of any relevant case law examining the legality of mass-market licences that prevent the use of public domain information or that purport to restrict the exercise of user privileges normally conferred under copyright law, there is reason to believe that such licences would be invalidated only in very exceptional circumstances. As a result, the widespread use of online licences may end up posing a threat to the copyright policy objectives and the integrity of the public domain, insofar as they may contribute to displace democratically established public ordering assumptions.

All in all, the regime of limitations and technological protection measures established by the Information Society Directive does not appear to offer the necessary legal certainty to support the deployment of a