Bill C-244

An Act to amend the Copyright Act (diagnosis, maintenance and repair)

This enactment amends the Copyright Act in order to allow the circumvention of a technological protection measure if the circumvention is solely for the purpose of the diagnosis, maintenance or repair of certain types of products.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Under Bill C-244, circumvention of technological protection measures will be allowed only “for the purpose of the diagnosis, maintenance or repair of a product”, as we've stated.

You touched on this a bit, Mr. Rosborough. How would this limitation be enforced in practice? Can you reiterate a couple of those points for me?

Also, could persons or companies that engage in the manufacture, importation, distribution, sale, renting and provision of technologies, devices or components to circumvent TPMs be held liable where these products are used for other purposes?

[Anthony D. Rosborough]

Do you mean amendments to Bill C-244?

[Anthony D. Rosborough]

Certainly.

I think this question evidences, as I mentioned in the Canadian right to repair Berkeley article that's forthcoming, that federal-provincial co-operation is essential here. This indicates an area where coordinated legislation targeting the consumer protection acts in the provinces is needed.

It would be nice if Bill C-244 also said that if you own a device with an embedded computer program, you have an implied licence to use the program to the extent that circumvention is necessary. We don't have that language in the bill. Obviously, that would conflict with provincial jurisdiction. This is where coordinated federal-provincial effort is needed.

However, again, this bill is starting in the right spot.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

That's helpful. Thank you.

Another question the analysts provided to us is as follows. “Computer programs embedded in products are typically licensed to consumers. To retain the right to use the program, they usually must comply with licence, which may require that they do not circumvent TPMs for any reason. A person could thus breach the licence, losing the right to use the program, even if the Copyright Act otherwise allows them to circumvent the technological protection measure.

“Does Bill C-244 overcome the challenge of licences that restrict the diagnosis, maintenance or repair of a product even if it were allowed under the act?

“Given that provinces have legislative powers over contract law, should the federal government engage with them on the matter of restrictive licences?”

I'll pose that to you again, Professor Centivany.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you, Mr. Chair.

I'd like to thank our panellists today for, likely, the most informative discussion we've had on this subject so far.

One of the analysts' questions, provided to us in advance, number 7, is as follows. Bill C-244 suggests a “do-it-yourself” approach to the diagnosis, maintenance or repair of products in which technological protection measure-protected computer programs are embedded: it would allow a person to circumvent the technological protection measure for these purposes, and to use or offer equipment for these purposes. It would not, however, allow a person to offer or provide services for doing the same.

Professor Centivany, why does Bill C-244 seem to prioritize a do-it-yourself approach, considering that ordinary people may not have enough know-how to repair products such as motorized vehicles and personal electronic devices, and that allowing others to do it for them could bring new revenues to Canadian businesses?

[Anthony D. Rosborough]

We risk fragmentation by having independent provincial strategies that are inconsequential toward sustainability indexes or repairability indexes. To have meaningful effect across Canada, we should have a federal index for repairability. Absolutely, providing consumers with the information they need at the time of sale is essential for achieving the right to repair, because it creates a distinction in the marketplace. Consumers need to have that information.

Again, this allows for repairability, but it doesn't necessarily enable the right or ability to conduct repairs. That's what Bill C-244 looks to do. It starts at the source of the problem rather than looking just to solutions at the far end. This bill is starting at the right place. If we have enough movement in this direction on the IP file, we can move ahead with repair indexes and sustainability indexes and to arming consumers with the information they need at the time of sale.

[Caroline Desbiens, Bloc, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Thank you, Mr. Chair. That's very kind.

How much can we rely on these tools to move things forward? If Bill C‑244 were implemented here, Quebec would be one of the places in the world where consumers were most protected against planned obsolescence. There's a keen interest in the issue in Quebec.

Do you think we can move towards that in Canada, or are we too far away?

[Anthony D. Rosborough]

For the purposes of the right to repair, absolutely. I think it may be beyond the scope of this bill, but a system of...maybe like a sustainability index under the Canadian Environmental Protection Act. If the government is serious about pursuing the right to repair at the federal level, some sort of system would be essential. We have seen in other jurisdictions similar indexes that have been very successful, France being the main example.

With regard to provincial efforts toward the right to repair, such as the bill proposed by Guy Ouellette, these jurisdictions provincially in Canada are waiting for federal leadership on the IP issue. Bill C-244 and Bill C-294 are the important starting point. These bills are starting at the right place to give provinces the leeway they need to move ahead with those types of systems.

[Paul Fogolin]

Thanks for bringing this up. There's been a lot of talk of manufactured obsolescence throughout the debate on Bill C-244. In our industry, I like to think that we build our products with manufactured longevity. What I mean by that is—

[Dr. Alissa Centivany]

I'll keep it short so that Mr. Rosborough has an opportunity, hopefully, to respond as well.

The process of creation involves iterating on things that already exist. Nothing is created out of whole cloth. This is the way creation and innovation happen—having the opportunity to explore, be curious and learn. In my interviews, what I heard a lot of people say is that actually breaking things was part of the way they learned not only how things were put together, but how to fix them. You're absolutely right. Having this ability to play and tinker is critical.

The other point that I just really want to quickly make is in the case of health care devices, in particular. We have situations where people's mobility depends on the functioning of, let's say, a powered wheelchair. Sometimes they'll even have medical devices implanted in their bodies. These, too, are being restricted by TPMs and repair restrictions.

I just really want to emphasize the fact that we need to have this exemption that Bill C-244 offers.

Anthony.

[Shannon Sereda, Director, Government Relations, Policy and Markets, Alberta Wheat and Barley Commissions; Representative, Grain Growers of Canada]

Thank you.

Good afternoon, Mr. Chair and honourable members of the committee. It is my pleasure to be here today as a representative of the Grain Growers of Canada.

My name is Shannon Sereda. I am the director of government relations, policy and markets with the Alberta Wheat and Barley Commissions. We represent over 17,000 grain farmers across Alberta and are member organizations of the Grain Growers of Canada.

Canadian farmers continue to be world leaders in their accelerated adoption of technology. Modern farming equipment is increasingly reliant on high-tech automized systems, with complex software design and digitized components. The tools to fix that machinery have also become increasingly complex. A laptop and software now often replace a wrench.

This continual innovation in farm equipment is essential for the sustainable growth, efficiency and competitiveness of the Canadian grain sector, yet studies have shown that farmers are often considering older, less efficient and less digitized equipment that they can repair themselves. This is because when a farmer experiences an equipment failure, in almost all instances they are beholden to one point of service, the OEM dealer, to unlock the equipment, provide the parts and have their technicians diagnose and repair the issue. Given that there are typically few centralized dealers servicing many farmers over a large area, this can often take many hours to many days, and can be further impacted by single-source supply chain disruptions for accessing parts.

Farmers are consistently at the mercy of weather. Any delay during what is already a very short growing season poses a major threat to crop yield and quality, and is a financial risks to farmers. For perspective, in one day a farmer can harvest multiple millions of dollars' worth of crop.

Creating a competitive market for equipment repair will give farmers a choice to safely conduct the repairs themselves, through a qualified third party or through the equipment dealerships, thus reducing both risk and cost. Farmers and other skilled individuals in Canada's rural economy are ready and able to safely contribute to a competitive market for repair.

The current legislative environment in Canada supports equipment repair monopolies by allowing OEMs to prohibit the bypassing of TPMs. This leaves farmers and third party independent mechanics limited in their ability to diagnose or repair many potential technical issues. To restore the competitive environment and market for repairs of farm machinery, legislative change is required. Bill C-244 represents the first step in helping to break the monopolization of repair services and allowing Canadian farmers the right to repair their machinery, putting them on equal footing with farmers in other jurisdictions.

The United States and the European Union have made moves toward modernized legislation and regulations specific to agriculture, and are actively working toward creating a competitive environment for third party repairs, data ownership and interoperability. Both the agricultural right to repair bill that was recently introduced in the U.S.A. and other pressures toward increasing competition in repair services are acting to send the right signals to industry.

John Deere, which previously opposed the notion of allowing farmers to conduct their own repairs, has recently signed a memorandum of understanding with the American Farm Bureau Federation. This MOU will formalize U.S. farmers' access to diagnostic and repair codes and manuals and product guides, allowing farmers and independent repair shops to purchase John Deere software and other information needed to service their equipment.

While this is a step in the right direction, it remains to be seen how deep the access will be, how it might be enforced or how reasonable pricing will be defined. The availability of these tools should be cost-conducive for both independent technicians and farmers.

To this end, and in conjunction with Bill C-244, there is a necessary role for modernized provincial legislation in order to further restore a competitive market. In Alberta, for example, the Farm Implement and Dealership Act can be revised to ensure access to tools at a reasonable price.

Farmers are innovators. They have a history of making improvements to existing equipment used on their specific farms to boost productivity. The design practices by OEMs limit ingenuity and innovation for farmers and third parties by disallowing interoperability or the full use of telematics. On-board computers on farm equipment report nearly every detail of what a farmer does. Telematics provide a modern method of using this data to monitor farm equipment to ensure that operations remain reliable and timely.

Farmers have become more tech-savvy and can use telematics together with AI and other software to manage their farms from their iPhones. With full access to telematics, they can see pending issues with machinery by observing engine speeds and tire pressure, or even forecast planting stages and harvest timing.

GPS systems allow them to precisely place inputs, such as fertilizer, to maximize efficiency in cost, which in turn creates positive environmental outcomes, such as emissions reductions.

The agriculture community is pleased that the committee has acknowledged and invited agriculture to be a part of its deliberations on Bill C-244. We would like to ensure that the proposed amendments in Bill C-244 remain free of any exemptions that could limit the potential development of the competitive market for diagnosis, repair and maintenance of farm equipment.

On behalf of farmers, I thank you for the invitation to be here today, and thank you for your time.

[Paul Fogolin, Vice-President, Policy and Government Affairs, Entertainment Software Association of Canada]

Thank you, Mr. Chair and honourable committee members, for the opportunity to speak to you about Bill C-244.

My name is Paul Fogolin, and I'm the vice-president of policy and government affairs for the Entertainment Software Association of Canada. We represent major video game console makers, publishers and large and small developers, as well as national distributors.

The video game industry is the largest entertainment industry in the world, plain and simple, with revenues that far exceed those of both film and music. In 2022, the video game industry earned over $170 billion in global revenues.

At ESAC, we're proud to report that Canada is one of the biggest players in the global games business. Home to close to 1000 studios with over 32,000 full-time employees and contributing $5.5 billion to the Canadian economy, we punch far above our weight.

The Copyright Modernization Act, passed in 2012, has helped to drive this growth by protecting the considerable time, investment and creativity that developers put into their games. This empowers them to innovate and create, knowing that legal protections exist to mitigate the risk of piracy and infringement.

While we recognize the good intentions driving this bill, if passed it could result in unintended consequences for both our industry and our players. Permitting the circumvention of TPMs presents a unique risk to our industry. Let me explain why.

The integrity of the entire video game ecosystem relies on TPMs. Not only do they protect intellectual property, but they prevent hacking and cheating, deter unauthorized access to consumer information and help support cybersecurity. They also allow a console to be securely updated, providing players with new content, extended storylines and updates to the game experience.

Before the Copyright Act was passed, the widespread availability of circumvention devices and services in Canada created an environment in which piracy and modding thrived. The act provided the critical measures needed to pursue those who facilitate and engage in piracy.

This is not a theoretical concern. It's been validated through the courts in litigation. In a precedent-setting decision issued in 2017, Nintendo of America v. King, the Canadian Federal Court awarded over $12 million in damages for the circumvention of TPMs and copyright infringement under the act, including that the defendant was liable under section 41.1 for the trafficking and installation of circumvention devices.

Bill C-244 could permit devices such as mod chips and game copiers to be put back on the market under the auspices of repair. We're deeply concerned that this will make it incredibly difficult for rights holders and law enforcement to pursue legal action against those who traffic in these devices. The burden of proof required would be so high that it would be very, very difficult or virtually impossible to establish liability.

It's also clear, watching the debate on Bill C-244 thus far, that game consoles aren't an area of great concern. I think that speaks to the ease of repairability and consumer satisfaction in this regard. Video game consoles are consistently rated highly for their repairability on websites like iFixit. Most common repairs can be addressed without circumventing TPMs. On top of this, our console makers provide easy, fast, reliable and affordable repair services as well as comprehensive online and off-line networks to troubleshoot issues.

This is an all-encompassing piece of legislation. It doesn't distinguish between a tractor, a fridge or a game console. Similar markets that have right to repair legislation, like some of our friends in the States, do classify different classes. Let me give you two examples: New York's Digital Fair Repair Act, which was recently signed into law by the governor; and Washington state's Bill 1392. Both jurisdictions rightly recognized the unique risk that TPM circumvention poses for our industry and chose to exclude game consoles.

In closing, we're very concerned about the risk posed to our industry and our players. To avoid going backward with protections to IP and to ensure we protect the player experience, we respectfully request that this committee adopt our proposed amendment to exclude game consoles, components and peripherals.

Thank you very much.

[Charles Bernard, Lead Economist, Canadian Automobile Dealers Association]

Thank you, Mr. Chair.

First of all, I want to thank all members of the committee for inviting the Canadian Automobile Dealers Association to express its perspective on Bill C-244.

CADA is a federation of provincial and regional dealer associations that represents 3,400 members across the country. Our dealers employ more than 160,000 Canadians and have always been a major component of the social fabric in rural and urban Canadian communities. Not only do dealers help consumers in accessing a vehicle that fits their needs, but they are also heavily involved in procuring repair services and technical expertise to the clients in the years that follow the purchase.

As committee members will know, since 2009 the repair and servicing market has been intrinsically linked to the Canadian Automotive Service Information Standards agreement, known as CASIS. This voluntary agreement helped build an environment where service and repair information could be exchanged between OEMs and the automotive aftermarket industry. Indeed, the CASIS framework increased the competitiveness in the repair services market, and did so while preserving the fragile balance among safety, compliancy and access to repair services.

In fact, that partnership has allowed the aftermarket to grow since its creation. Data from DesRosiers Automotive Consultants show consistently that the aftermarket has achieved phenomenal growth and is positioned for even greater success in 2022. Also in 2022, the numbers placed the aftermarket well above prepandemic levels—more than 20% higher than 2019 numbers.

However, CADA believes that Bill C-244 threatens that balance, which was built through exhaustive co-operation over the last decade, and offers no real alternative to what CASIS has accomplished in terms of maintaining the regulatory compliancy required to ensure the utmost safety for the consumer.

The CASIS agreement is a well-functioning institution where progress in repair access has been supported by the signatories through expertise, transparency and, most importantly, prudence.

It is also important to highlight the significant safety and environmental considerations that have to be taken into account when repair information and tools are being shared among automotive OEMs and representatives of the aftermarket—considerations that are not applicable to the majority of the products that would be covered under this amendment to the Copyright Act. We firmly believe that the risks in areas such as safety, cybersecurity, vehicle theft, personal data protection and intellectual property rights far outweigh the marginal benefits of increasing the aftermarket service offer.

The importance of a different framework for the auto industry also seems to be supported in the December 2021 mandate letter from the Minister of Innovation, Science and Industry. It specifically mentions that the government should explore the idea of a right to repair for appliances and electronics, with no mention of vehicles.

The problem of vehicle theft in Canada is a concrete example of how Bill C‑244 could lead to significant problems that parallel the general discussion around the right to repair. Full access to this information would ultimately be shared by everyone, be they car dealerships, aftermarket businesses, or even individuals with criminal or negative intent.

We use this example not to spread a climate of fear or anxiety, but to call committee members' attention to the tension between access to repair information, which is one thing in and of itself, and the many related areas where risks are real and currently observable.

To be clear, on the side of the auto industry, the proposed amendment to the Copyright Act is a solution looking for problems. The CASIS agreement has proven itself. Once again, the Pandora's box that this bill may open could very well generate, as much for consumers as for political players, difficulties on a scale that would overshadow the initial motivations behind the amendment.

We recommend that this committee pay closer attention to the underlying risks of this bill. For example, we strongly encourage the committee to increase participation of cyber security experts, as well as those who specialize in the vehicle theft crisis, general vehicle safety, and the challenges of protecting intellectual property.

Additionally, for the reasons I just outlined, we recommend that the committee include a specific exemption for the automotive industry, rather than support further development of the CASIS agreement and attempt to increase its scope.

I want to thank everyone.

I'm ready to answer your questions in French or English. Thank you very much for your attention.

[Dr. Alissa Centivany, Assistant Professor, Western University, As an Individual]

Good afternoon, Mr. Chairman and esteemed members of the committee.

My name is Alissa Centivany. I'm an assistant professor at the Faculty of Information and Media Studies at Western University, where I work on technology policy, law and ethics. I have a JD specializing in intellectual property law and a Ph.D. in information science. I've had research appointments at U of C Berkeley's law school at the Center for Law and Technology, and at the University of Toronto law school's Centre for Innovation Law and Policy.

I'm currently the primary investigator of an SSHRC-funded study on copyright, computerization and the right to repair. I'm grateful for this opportunity to speak to you today.

Repair is impeded by design choices; business strategies; constraints on access, materials and information; various social factors; and laws. By permitting the circumvention of TPMs for diagnosis, maintenance and repair, this bill represents an important, incremental step forward toward reclaiming the right to repair in Canada. For the health of our economy, our planet, our communities and ourselves, repair must be available, affordable and accessible. I'd like to emphasize three points for consideration.

First, the purpose of copyright law is to benefit society by promoting the creation and sharing of creative and artistic works. The purpose of copyright is not to protect business models. Nor is it to ensure that the incumbent beneficiaries of the existing regime reap the rewards of that status in perpetuity. It's absurd that manufacturers of things like tractors, tanks, wheelchairs and washing machines can co-opt copyright law and impede repair, simply by embedding code into their products. This bill carves out a necessary, common-sense exemption to the act's anti-circumvention provisions, while leaving the provision intact for contexts that might bear a legitimate relationship to the overarching purpose of the act.

Opponents of this bill claim that the exemption carries risks to the environment, safety and security. In response, I'd like to say first, “You're barking up the wrong tree.” There are laws that could address those concerns, but they are not copyright laws, which, as just mentioned, are concerned with the production of creative works.

Second, the only way this exemption would impact emissions, safety and security is if the software that governs repair also governed emissions, safety and security. I doubt that this is the case, but if these systems are being bundled together, that is a serious design flaw that manufacturers should remedy.

Third, most consumer devices are insecure for reasons that have nothing to do with repair. The ubiquitous smartening of products through network computerization creates security risks, thus much of this innovation is of questionable benefit to consumers and society.

Fourth, positioning consumers and the repair providers they choose as threats is pretty blatantly anti-consumer.

Finally, whether this exemption is codified or not is irrelevant to risks posed by actual hackers, who have far more sophisticated tools and techniques already at their disposal.

The second big point I'd like to make is that this bill is pro-innovation. In my research, I've interviewed farmers, teachers, engineers, artists, community organizers, health care workers, mechanics, volunteer fixers, schoolchildren, and people living in cities, in the suburbs, in rural areas here in Canada, and also in the U.S., in Europe, and in regions of the global south. A common thread across these differences is that the practice of figuring out what is wrong with something and fixing it is innovative. Our understanding and valuation of innovation in this country has gone astray. We overemphasize novelty, newness and invention, and we underemphasize the work, skill and adaptive situated problem-solving required to keep the things we already have running smoothly. Rather than undermining innovation, as some of the opponents claim, this bill undoubtedly promotes it for the good of workers and the economy.

By the way, this position is shared by our most important trading partner. A brief released two days ago by the White House noted the importance of the right to repair in building a healthy economy. At present, 20 U.S. states have right to repair bills under consideration. Bill C-244 is pro-innovation and is consistent with the actions and interests of our key trading partners.

Finally, repair is not only good for the environment and the economy; it's also good for us as people and as communities. Every act of repair is embedded with important human values. These include productivist values like learning, skill development, self-efficacy, self-determination and digital citizenship, as well as non-productivist values like care, continuity, heritage, hope, mutual support and meaning-making, which together make up the fabric of a richer, more resilient, more livable society and enable us to collectively project a more hospitable, habitable and humane shared future.

Thank you for the opportunity to speak with you today about Bill C-244.

[The Chair, Liberal, Joël Lightbound]

Ladies and gentlemen, dear friends, I now call this meeting to order.

Welcome to meeting No. 57 of the House of Commons Standing Committee on Industry and Technology.

Pursuant to the order of reference dated Wednesday, October 5, 2022, we are considering Bill C‑244, an Act to amend the Copyright Act (diagnosis, maintenance and repair).

Today's meeting is in hybrid format, pursuant to the order adopted by the House on June 23, 2022.

Today, the committee has the pleasure of welcoming, as an individual, Dr. Alissa Centivany, assistant professor at Western University, and Mr. Anthony D. Rosborough, researcher at the European University Institute's Department of Law.

Here with us in Ottawa, we have Mr. Charles Bernard, lead economist of the Canadian Automobile Dealers Association.

We also welcome Mr. Paul Fogolin, vice-president of policy and government affairs of the Entertainment Software Association of Canada.

Finally, we welcome Ms. Shannon Sereda, director of government relations, policy and markets for the Grain Growers of Canada.

Welcome to you all.

Before moving on to more serious matters, I'd like to wish a happy birthday to my colleague, Caroline Desbiens, who has the pleasure of joining the committee. Her birthday was well chosen; it is the same as that of your humble servant.

Happy birthday, Ms. Desbiens.