Archived - Dudek, Gregory

My name is Gregory Dudek and I am the Director of the McGill University School of Computer Science and a James McGill Professor.  I am the former Director of the McGill Center for Intelligent Machines.  I am also the author of two books and the copyright owner of a substantial body of intellectual property including over 150 published articles and the works of my father, Canadian Poet, publisher and critic Louis Dudek.  In addition, I run a small publishing company and own several patents (one of which is critical to a small high-technology company that I am the president of).

I am taking this opportunity to comment with respect to the government consultation on copyright  laws.  Thank you for the opportunity.

1. How do Canada’s copyright laws affect you? How should existing laws be modernized?

I believe copyright legislation will have a profound effect on many members of society, and myself in particular, since I am simultaneously an educator, a content creator, a content holder and a publisher.  In addition, as a university administrator, I can see possible implications of modified copyright laws that extend beyond my own personal income and activities.

While digital media and digital data transfer have "changed the game" for copyright holders and the general public, I think it is of paramount importance to avoid rash decisions or immoderate action.  Please tread carefully and protect the public interest.

It is extremely difficult to be certain how cultural values and data transfer technologies will evolve over the next 5 to 10 years.  I could easily hazard a guess, but instead I would prefer to observe that very few such guesses made 10 to 20 years ago were correct, and even with hindsight it is not clear that those who made correct guesses were not simply lucky.  Over the last twenty years, the most intelligent and well-informed captains of industry made guesses regarding where our technologies would be now, and most of them were utterly wrong. 

Digital media, digital transfer technologies, media consumption and cultural values are certain to change substantially in the next 10 years and I think the most important thing for our government rules and policies to assure is that our citizens have access to information they need to consume, and that our companies are allowed produce the technologies that will allow them to participate in the changes that will take place.  In particular, I am very concerned that some of the anticipated copyright changes, especially as related to derivative works, fair dealing and technological protection measures will be too aggressive and hence do more harm than good to the Canadian public and the fabric of Canadian society.

2. Based on Canadian values and interests, how should copyright changes be made in order to withstand the test of time?

Clearly copyright laws need to take into account both the rights holders as well as the general public.  Over the last 20 to 50 years there seems to have been a distinct shift in emphasis and discussion in favor of rights holders at the expense of the general public.  One of the hallmarks of humanity, and a putative reason that we have fared so well in the West, is the sharing of ideas, inventions and insight.  Whatever copyright changes are developed, they must not jeopardize the ability of our culture and our citizens to build on one another's ideas and disseminate creative insights.

One rather frightening possibility is that copyright as we know it is irredeemably at odds with the needs of our society to innovate and grow.  If this is true, the only way to protect copyright in its current form is by doing harm, possibly substantial harm, to our population in terms of openness, competitiveness or innovation.  Such dramatic change is always disruptive and disconcerting, but this needs to be given serious consideration and we need to avoid taking a reactionary stance that may, in a global context, do more harm than good to the Canadian people.  In short, I think copyright changes need to be gradual and incremental so that they can evolve with an intrinsically unstable and uncertain future.  Moreover, protecting the Canadian public is surely more important than protecting the rights holders like myself, since rights holders will have to find innovative solutions whatever laws are passed.

3. What sorts of copyright changes do you believe would best foster innovation and creativity in Canada?

This question and those that follow seem to be clearly targeted at the interested of rights holders and IP producers.  I am rather concerned by the apparent bias away from the interests of consumers and the general public.

In fact, as an educator it is clear to me that innovation and creativity can start in unexpected places and may arise after a long period of nurturing.  As such, I think innovation and creativity will be fostered in a climate and environment where an abundant selection of stimuli are readily available.  My own grandmother became an accomplished painter at age 56 (with a show in a national gallery and a book about her work) only after spending years copying other people's paintings that she liked.  Many of my students in Computer Science and Robotics got their start by tinkering at home and pursuing activities that might well have been considered infringing circumvention of technological protection under bill C-61.

Innovation and creativity are stimulated best in an atmosphere where appreciation for the work can be observed and demonstrated.  I honestly believe that fostering innovation and creativity is very different from making money at creative pursuits, and there is immense data to demonstrate a surprising disconnect between financial return and the creative process.  That said, those engaged in creative pursuits would also like to make some money, but it is important for all of us to keep in mind the surprising fact that making money at creative enterprises is not at all the same a fostering those activities!

To foster creativity the paramount issue that that the authorship and origin of creative works should be acknowledged.   Authors, inventors, students and musicians seem to value this above all else, and certainly as an academic I value the recognition I gain from my work more than any financial recompense. 

I think it also critical the mechanisms to produce derivative work from existing copyright material need to be protected.   Such derivative work is the basis of both the formal educational process, which is somewhat easy to safeguard, and the self-education that occurs throughout society.  In addition, much innovation and education occurs outside formal academic settings: this is where adults learn new things and students discover a passion they may pursue later. As such, the ability to innovate derivative works in the home needs to be protected.  This activity can range from mimicry, to works of satire, to innovative technological devices based on existing objects.  These activities are the heart of innovation and the soul of a creative society.  As far as I can tell, many such activities would have been deemed illegal under bill C-61.

Most importantly, since it relates to my profession and my students, I feel the laws regarding anti-circumvention technologies (laws regarding circumvention of technological protection measures) are exceedingly dangerous to both our ability to develop and educate our young people, and the ability of small companies to develop innovative products.  Circumvention with does not lead to actual intentional infringement needs to be very carefully dealt with, and I strongly believe it should be permitted.

4. What sorts of copyright changes do you believe would best foster competition and investment in Canada?

Among those to be impacted by copyright policy, high technology companies appear to have the largest growth potential in terms of jobs, visibility and economic growth. Copyright has the potential to have impact in three ways:  (1) by altering the production of skilled workers, (2) by altering the creative process and permissible activities, and (3) by altering (and perhaps improving) the protections available to new IP.  Of these three factors, the first is the more important since without skilled and creative innovators there is no industry to protect or promote.  As such, fostering a climate where technological innovation and "tinkering" is permitted and protected is critical.  It is difficult to me to overstate the extent to which this seems to be a preliminary stage for many of our best students before they even come to university.

While it is my understanding that the current consultation relates to copyright as opposed to other forms of IP such as patent protection, it is worth noting that the patent process in Canada, while arguably superior to that in the United States, may also require some fine tuning.  Patent protection is critical to investment and innovation, but excessive terms and frivolous patents are a serious risk and these can potentially have long term negative effects on technological innovation.

Protecting IP for too long (for example via copyright extension) does little to foster innovation and, in fact, reduces the incentive to innovate and replace what has gone before.  Limited durations for copyrights and patents are best for both the creators and the general public, and lead to a climate where protections, while finite, can be respected and defended.

Lastly, I feel that one of the critical factors now absent from the copyright landscape is a sense of clarity with respect to what is permissible and where responsibility resides.  Even poor and insufficiently protective protections with clarity would be better than vague ones.  If I know what is permissible and who is responsible for what, I can plan accordingly and take whatever measures are needed.  If things are uncertain, even contingency planning is difficult.  Thus, clarity is paramount.

5. What kinds of changes would best position Canada as a leader in the global, digital economy?

Many of my comments above have related to the growth and development of creative skills and proclivities in the Canadian public. Surely, without a creative, innovative and technically skilled populace we cannot take a leadership position.  As such, I think it is more important to protect our ability to develop and grow as a population, even at the expense of pre-existing interests (perhaps such as myself).

Canada right now has an enviable position among high-technology researchers as a place where innovation can take place in an unfettered manner, while still allowing IP rights holders to benefit.  I believe this stance has helped us, and myself in particular, attract skilled PhD researchers to our country.  I think an overly strong and protective copyright policy will do more harm than good, and deter innovation and repel the most forward-thinking innovators.

We need to protect the rights of users and of innovators and, as such, a measured policy with a well-defined reevaluation interval would be beneficial.