Copyright Q-A with Michael Byers, presumptive NDP candidate for Vancouver Center

A Hill Times article NDP’s ’star’ candidate Byers sets sights on Vancouver Centredescribes how a best-selling author and academic, Michael. Byers, isseeking the nomination in that riding. I decided to do a writteninterview with Mr. Byers on copyright, included below. It looks like Vancouver Center will be an important riding to watch for those of us interested in copyright.

Russell: I wish to apologize if the preamble to any of thesequestions is leading. It is hard to get at the views our community ismost interested in without providing context. If these are toodetailed, or too long, please answer what is interesting to you or whatwould best convey your own perspective on this complex topic.

The government suggests that Copyright is about striking anappropriate balance between creators and consumers. While we allbelieve that creators should be fairly compensated, creators have beendivided on how to modernize copyright.

For instance, compare the stated views of the Creators CopyrightCoalition (CCC) and those of the Canadian Music Creators Coalition(CMCC) or Appropriation Art (AA). While CMCC and AA members are alsocounted (sometimes more than once) as CCC members for statistics, theviews they express are very different.

One area of discussion is the impact of technology. Some creatorsbelieve that allowing citizen control over communications technologywould be a great benefit, and other creators see this as a threat.

Q: Where do you stand on the benefit or threat of new media/technology?

Byers: New technology is rarely a threat. Emergingtechnology creates new opportunities for innovation. Business andsociety need to adapt to these new realities not by attempting tooutlaw the march of progress, but by discovering ways to benefit fromthe new reality. An example would be how content producers (Televisionand film studios) initially fought against VCR’s but eventually wereable to create new, and very successful, businesses by embracing thenew technology. We do not advance as a society by trying to stifleinnovation and opportunity, it would be terrible if succeeded.

Russell: One way to reduce the “threat” from new technologyis to reduce the ability of individual citizens to control technology.While this may reduce copyright infringement, it also reducescreativity as the tools used to record, edit and distribute and accesscreativity are the same whether it is used for creativity orinfringement.

Locking down devices so that their owners are less able to controlthem is one of the policies we have seen recently (1995 USA NationalInformation Infrastructure task force, 1996 WIPO treaties, USA DMCA,Canadian Bill C-60 and Bill C-61).

We created a petition to oppose this policy direction…

Q: Do you believe that the tools which provide the primary means ofproduction and distribution of knowledge should be under the control ofprivate citizens, or some third party? If a third party, who shouldthat party be? If citizens, would you endorse our petition?

Byers: The primary means of production and distribution ofinformation needs to lie with private citizens. Historically thosesocieties with the easiest access to the means of distributinginformation (such as printing presses, and public radio stations) havebeen the freest. Focusing the means of distributing information in afew individuals, whether they are government or some third party, isultimately bad for democracy.

Russell:Many people see Copyright in terms of a balancebetween rights articulated in the United Nations Universal Declarationof Human Rights: 17. Property (tangible), 19. Expression , 26.Education, 27. Cultural and Creators’ rights.

Q: As a human rights activist, how well do you feel we have balanced these rights so far?

Byers: Historically Canadian policy on this has been morebalanced, but is now heading towards a much more strict protection ofproperty rights holders, without enough attention to the need ofcultural, expression and educational needs. This is troubling as weseem to be trying to adopt the excesses and mistakes of the AmericanDMCA legislation.

Q: Domestically, do you believe that Canada has had the rightbalance in the past, and the right balance with recently proposedlegislation?

Byers: The rights balance in the past has certainly beenbetter in Canada than in the US under DMCA. With the introduction ofC-61, Stephen Harper’s conservative government is attempting to outdothe worst mistakes of the American DMCA.

Russell:There are many mechanisms to compensate creators. Thedebate around enforcing compensation appears to come down to a questionof locks (locks on content, locks on devices), levies (compulsorylicensing) or lawsuits (suing those who infringe copyright). Locksremove choices from software authors and technology owners (includingcreators), and levies only support a single business model for creators(collecting royalties). Only enforceable and enforced (via lawsuits)contracts can support a full spectrum of options for methods ofcreation, distribution and funding for both creators and theircustomers.

Q: Should Canada be providing legal protection or other encouragement for digital locks on content and/or devices?

Byers: Digital locks and DRM should not be encouraged, asthese tend to overly restrict the rights of consumers and the public. Iwould support legislation to explicitly protect the right to circumventdigital locks that prevent people from exercising their legal rights.

Q: Should we be using more or less compulsory licensing in Canada?Should we reserve this option only for extreme situations? Whatcriteria would you propose?

Byers: This question has two parts. The second is answeredbelow. As for compulsory licensing, I think it is a reasonable solutionfor all broadcast media, not just radio. Basically I would update therules around compulsory licensing to include things like Internet basedstreaming media.

Russell: There are alternative methods of production anddistribution, such as peer production and peer distribution, which donot rely on counting copies or collecting royalties. This reducescopyright infringement by royalty-free licensing what citizens want todo, leaving a few commercial companies as potential infringers. Whilethese methods do not work for all creativity, there are some such suchas software (Free/Libre and Open Source Software) andeducational/scientific/medical knowledge (Open Access) where this isthe fastest growing part of that sector.

Q: Do you think Canada should be supporting and promotingalternative royalty-free methods of production and distribution wherepossible?

Byers: I support the work of Professor Lessig’s CreativeCommons organization. I also support other innovative uses of copyrightsuch as the GNU Free Software foundation and other open source and openknowledge projects.

Russell: Hon. Hedy Fry is the incumbent in Vancouver South,and is a member of the Standing Committee on Canadian Heritage. In ameeting I had with her, and in public statements, she has articulated aview of copyright focused entirely on protecting industrial productionmethods (major music labels and studios).

Byers: I’m not surprised by Ms. Fry’s position, since theLiberal Party traditionally has been more responsive to largecorporations than individuals Canadians. Indeed, this is one of thereasons that I’m seeking to replace her as the Member of Parliament forVancouver Centre!

Q: How would you differentiate your views on copyright from those of Hon. Hedy Fry?

Byers: Ms. Fry doesn’t seem to have much of an opinion oncopyright outside of her party line. I believe that fair copyright isone of the most important areas of interface between average citizensand the government in a 21st century knowledge based economy. As such,striking a fair balance between the rights of ALL stakeholders iscritical, not simply favouring the major entertainment producers.

Dr. Michael Byers holds the Canada Research Chair in Global Politicsand International Law at the University of British Columbia. Prior to2005, he was a Professor of Law at Duke University in North Carolinawhere he taught-among other things-international trade law, includinginternational intellectual property. He is running for the federal NDPnomination in Vancouver Centre, which includes Yaletown, Coal Harbour,False Creek and the eastern portion of Kitsilano.

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