Highlights from Re:Create Coalition Members’ Comments on IPEC Joint Strategic Plan

WASHINGTON—As the U.S. Intellectual Property Enforcement Coordinator (IPEC) formulates its Joint Strategic Plan for 2019-2021, the Re:Create Coalition and a number of its members and allies filed comments about the importance of balancing the interests of rights holders with innovation and the creative economy.

See below for a compilation of quotes from Re:Create Coalition members’ comments on IPEC strategy for the future. See here for the Re:Create Coalition’s submission.

Re:Create Coalition on the New Creative Economy: “Safe harbors are a key part of U.S. law. They have played an essential role in the development of the Internet – without them, sites like YouTube, Facebook, Instagram, Reddit, and so many others would simply never have developed. It is not hyperbole to say that the entire Internet economy depends on safe harbors from liability for user actions for its existence. The 15 million new creators and $6 billion in revenues they are making are not just dependent on fair use – they are also dependent on platforms that would not allow them to post their content without safe harbors.”

Center for Democracy & Technology on importance of online safe harbors: “If intermediaries can be held liable for copyright infringement based on content uploaded by their users, risk-averse providers will tend to block more content than necessary so as to avoid liability altogether. But this precautionary over-blocking could prevent users from sharing millions of non-infringing posts reducing the internet’s value as a forum for free expression and stifling a creative (and lucrative) outlet for many Americans…CDT asks the IPEC to consider the Plan in light of our country’s First Amendment values, and to resist pressure from trading partners to implement additional enforcement obligations for private companies.”

Computer & Communications Industry Association (CCIA) on economic value of exporting fair use: “Important copyright rules such as fair use and related limitations and exceptions have been critical to the growth of the U.S. technology and Internet economy…A CCIA study showed that in 2014, fair use industries accounted for 16% of the U.S. economy, employed 1 in 8 workers, and contributed $2.8 trillion to GDP. U.S. exports of goods and services related to fair use increased by 21% from $304 billion in 2010 to $368 billion in 2014 driven by increases in service-sector exports. These economic benefits are lost when a country fails to uphold similar protections in their own copyright laws, impeding market access for U.S. companies looking to export, while also deterring local innovation.”

Consumer Technology Association on statutory damages: “The potential of statutory damage claims in marginal cases to chill innovation and entry has been well documented through exhaustive study…IPEC should support appropriately scaled relief here and abroad. Excessive statutory awards are a tool that can be used against U.S. policy and commercial interests around the world.”

Engine on the problems for startups with content filtering and “notice and staydown” policies: “As a preliminary matter, automated tools to identify copyrighted material only exist for a small subset of the types of media typically shared online. While some automated programs can identify audio, video and image files, no such tools exist for things like 3D printed objects, software binary executables, or industrial designs. Where tools do exist to automatically identify certain types of media files, they are severely error-prone and prohibitively expensive…Ultimately, IP enforcement policies that require user-generated content sites to deploy automated content detection tools will make it effectively impossible for small platforms to compete with dominant incumbents, decreasing innovation, competition, and creativity. As is often the case in IP enforcement, the proposed cure is worse than the disease. The United States should vigorously oppose such measures.”

Innovation Defense Foundation on copyright term extension: “Recognizing this important link between incentives and innovation, the U.S. Constitution allows Congress the ability to provide ‘inventors and authors’ limited monopolies on the works that they create…Over time, Congress has revisited this definition, most recently in the Sonny Bono Copyright Extension Act of 1998, which extended copyrights to include the life of the author plus 70 years…Many have challenged these extensions, questioning whether they do, indeed, promote innovation. Intellectual property laws may provide incentives for creators, but there is a legitimate debate over the optimal length and breadth of both patents and copyrights. Ideally, the law strikes the proper balance, which fosters innovation rather than simply protecting monopoly rents.”

Public Knowledge on economic value of online safe harbors: “The strength of the digital economy relies on the internet’s ability to directly connect companies and individuals to each other. For this connection to happen, online service providers, social networks, and other intermediaries must convey the speech and works of others. Should intermediaries find themselves held responsible for the actions of others, their activities would be so restricted as to hobble the flow of information and the public and societal value of their networks. As one study notes, increasing liability for content providers, holding intermediaries liable for their users’ content, and relaxing thresholds to prosecution all have a dramatic negative effect on angel investment — an important driver for innovation and economic growth.”

R Street Institute on fair use’s practical applications: “These limitations and exceptions are the basis of a workable copyright system that respects the First Amendment and promotes industry growth. One example of this is the use of machine learning when creating artificial intelligence (‘AI’). The way AI learns is by ingesting ‘training data.’ By analyzing this data, the AI can ‘teach’ itself how to do new things such as recognize a voice (like Apple’s Siri), park a car (like General Motors’ ‘Park Assist’) or even create a painting (like the one auctioned at Christie’s in October). But in many cases, the content data sets will be subject to copyright protection, for example, when the training data is made up of novels or written works used to educate an AI on English grammatical structure. Thus, AI developers may be dependent upon the fair-use doctrine to train AI systems.”