What I said to the USTR

Thanks for the
opportunity to participate.  I’m here on
behalf of the Organization for Transformative Works, a nonprofit which has over
770,000 registered users who have created more than a million works, and our
website receives over 115 million page views per week.  Our users, who are the creators of the next
generation and today, come from all over, including substantial numbers in the
US, Canada, and Mexico, and we have a strong interest in preserving a balanced
copyright regime.
Copyright’s limitations
and exceptions are vital to creative practices and to creators as well as to
educators, journalists, and ordinary citizens. 
Any renegotiation should ensure flexible limitations and exceptions,
including the highly successful model of American fair use and Canadian
protections for user-generated content and educational uses.
It’s also important
not to repeat the SOPA/PIPA debacle through the trade route.  SOPA and PIPA tried to change the online
copyright rules in ways that would have harmed America’s advantage in internet
innovation; the ideas don’t get better when suggested as trade policy.  Negotiations shouldn’t be based on the
prospect of tampering with internet service provider protections that have
proven so successful for American companies operating worldwide.  The Section 512 safe harbors for internet
service providers who respond expeditiously to notices of claimed infringement
have enabled American internet companies to thrive and remain innovative.  Section 512 and Section 230 of the
Communications Decency Act, which provides a broader safe harbor for
non-intellectual property related claims, are far from perfect.  But that just makes them like democracy—the worst
possible regime except for all the alternatives that have been tried or
proposed.  Proposals in some of the
submissions to change the law to require filtering after a notice of
infringement would shut down huge sections of the internet, and piracy would still
continue as it always does. 
Similarly, requests
to require more countries to create quasi-copyright anticircumvention rights
for digital locks hamper innovation and would make American products less
attractive—why would a farmer buy a John Deere tractor when he knows he won’t
be able to repair it himself because of the digital locks that only Deere can
release?  The Copyright Office only last
week proposed loosening the rules on
anticircumvention measures.  Imposing
rules on other countries we already know aren’t working well would be a
mistake.  At a bare minimum, anticircumvention
provisions should require a nexus to copyright infringement and exceptions to
anticircumvention rules should be explicit and flexible, like fair use.

Likewise, we oppose negotiating
with Canada to extend its domestic copyright term or restrict its limitations
and exceptions and with Mexico, with its very different legal system, to impose
significant statutory damages in domestic infringement cases—when statutory
damages are already desperately in need of reform in the US.  Balanced copyright policy is an important
goal that shouldn’t be sacrificed in any negotiations.

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