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Department of Commerce Comments on Copyright Policy, Creativity, and Innovation in the Internet Economy

  • and Michael Weinberg, Sherwin Siy, Corynne McSherry

I. Introduction

Public Knowledge the Electronic Frontier Foundation, and the New America
Foundation (“Commenters”) welcome the Department of Commerce’s review of the
relationship between digital copyright and online innovation. In considering the
relationship between copyright and innovation, it is critical to remember that copyright is
fundamentally a balance between the rights of the creator and the rights of the public at
large. It is unavoidable that copyright creates restrictions on free expression and the free
flow of ideas. However, it can also provide a powerful incentive to create. Effective
copyright policy finds an equilibrium between the creator’s incentive to create and the
public’s right to access, share and build on existing works. To that end, the Department
should focus on finding ways to encourage more people to create and contribute. In
addition to benefits, the costs of enforcement - both financial and in increased barriers to
innovate - must be considered.

The best way to encourage creativity and innovation in the Internet economy is to
reduce barriers to creativity and innovation. Services like iTunes and Netflix show that
copyright infringement is best addressed through innovation, not restrictive rights
management schemes or by making it harder for the public to access works. The safe
harbor provisions of the Digital Millennium Copyright Act (DMCA) have spurred that
kind of innovation. They establish clear procedures through which copyright owners can
cause the expeditious removal of allegedly infringing material, empower users to
challenge improper removals, and allow service providers to develop new services in a
climate of relative legal certainty.

By contrast, aggressive, government backed copyright enforcement efforts can
have unintended repercussions. For example, foreign governments can use copyright law
as a pretext for suppressing internal dissent. Recent reports of Russian police using
allegations of copyright infringement to crack down on civil society groups highlight the
realities of such abuse.1 Here in the U.S., a recent proposal to authorize the Department
of Justice to create a “blacklist” of sites allegedly dedicated to infringing activities and
encourage ISPs to block such sites has sparked a wave of protest from a variety of
groups, from software engineers2 (including many who developed the initial architecture
of the Internet) who fear the proposal will fundamentally undermine the domain name
system, to human rights groups who believe it will send a signal to the world that the
United States supports Internet censorship, as long as it is disguised as copyright

We urge the Department to identify and promote copyright policies that recognize
the extraordinary public benefits of online innovation and creativity, and seek to ensure
that those benefits are not lost in the name of policing infringement.

For a copy of the full comments click here or see the pdf on the right hand side of the page.

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