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.

[Adam van Koeverden, Liberal, Milton, ON]

Thank you, Mr. Chair.

Moving on to paragraph 3(3)(a), we move that Bill C-244, in clause 3, be amended by replacing line 23 on page 2 with the following:

(a) explain and support research on the link between firefighting and certain

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Well, they do, but actually, subsection 1 of article 20.66 is the defining section as to what everything that follows is pursuant to. It's specifically in relation to what authors, performers and producers of phonograms use in connection with the exercise of their rights. To your point, it may be widely expansive, but it doesn't really seem that the right-to-repair legislation, Bill C-244, is really what article 20.66 is driving at.

[Catherine Lovrics]

That is correct. We are concerned that, as currently drafted, Bill C-244 and the approach it takes would not adhere to our treaty obligations.

[Ed Fast, Conservative, Abbotsford, BC]

Your testimony, Ms. Lovrics, was that Bill C-244 may violate our CUSMA and WIPO treaty obligations.

Did I get your testimony right?

[Ed Fast, Conservative, Abbotsford, BC]

Thank you very much to all of our witnesses.

Ms. Lovrics, you referenced the importance of the government's putting into place a broader framework for the treatment of TPMs and other related IP, including consumer information. Section 41.21 of the Copyright Act already gives the power to government to effectively make changes to Canada's anti-circumvention rules.

The government, so far, has chosen not too, and has effectively left it to individual MPs, such as messieursMay and Miao, to bring forward specific legislation.

When it comes to setting up a framework, I agree with you that there has to be a broader framework that more comprehensively addresses this challenge. Do you prefer that it be done through legislation as we have before us—Bill C-244—or that it be done through regulation, which the government already has the power to do?

[Matthew Hatfield]

Yes. To your point, people are going to make modifications to their devices no matter what we say here. Some of those people are going to be contravening the rules, but we're not stopping the most sophisticated users by denying basic repair rights. We're denying repair rights to ordinary law-abiding folks.

The portion that I think you're speaking to, which goes beyond what we're doing here today but needs to happen, is that we need to reaffirm a reasonable, basic set of consumer rights and expectations over the things we own. It's the same way that if I owned a washer or a car or a phone 40 years ago, I would have had a pretty reasonable set of expectations about what I was entitled to.

That needs to be brought back into the law for the digital age, and part of what we're getting from Bill C-244 and from the broader right to repair is redressing that balance, because things are swinging further and further against an ordinary person around these devices.

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

My third question is about computer programs embedded in products, which are typically licensed to consumers because companies can get fees for them every single year. To retain the right to use the program, consumers usually must comply with the licence, which usually requires that they can't circumvent TPMs, for example. 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 TPM.

Do you think Bill C-224 goes far enough to overcome the challenge of licence restrictions?

[Iqwinder Gaheer, Liberal, Mississauga—Malton, ON]

Thank you, Mr. Chair, and to the witnesses for appearing before the committee.

My first questions are for Mr. Lawford. In the previous meeting on Bill C-244, the committee heard from manufacturer representatives about how TPM measures can be circumvented for unauthorized purposes, for example, to improve the performance of vehicles and equipment in a manner that may not be entirely safe. My question is to what extent, if at all, would Bill C-244 make this practice more common?

The reason I ask this question is because there's no way that the Copyright Act is the only thing preventing unauthorized circumvention of TPMs. There have to be other laws and regulations in place as well.

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

Thank you.

I'm sorry, but I'm having technical problems here.

To Madame Lovrics, you mentioned this law's ability to be in compliance with Canada's agreement with the United States and Mexico. A diagnostic maintenance or repair exception does not appear in the list of technological protection measure exemptions permitted under the Canada-United States-Mexico Agreement. CUSMA would allow Canada to adopt further exemptions, but only for non-infringing uses of specific classes of works and if an actual or likely adverse impact on those infringing uses is demonstrated by substantial evidence in a legislative context.

You mentioned that, in your opinion, Bill C-244 right now doesn't necessarily pass the test, and we might be liable to certain challenges from our trading partners if this legislation is passed. Is that correct?

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Currently, what are the consequences of not acting? If Bill C‑244 is not passed and the status quo is maintained, what are the consequences for consumers?

[Han Dong, Liberal, Don Valley North, ON]

Matt, since you're on the screen now, I went through the survey you did. It's quite extensive. Thank you very much for doing that.

I noticed that over 50% of Canadians said that they have tried to repair their devices or equipment, but they found that the repair was too expensive or not possible. How would Bill C-244 begin to help consumers with that problem?

[Han Dong, Liberal, Don Valley North, ON]

Thank you very much, Chair.

I want to thank all of the witnesses for coming today virtually and in person.

I'm going to start my questions with Mr. Lawford and then Mr. Hatfield. The Competition Bureau has noted that the Competition Act enforcement could complement a right to repair exception under the Copyright Act as proposed by Bill C-244 in promoting competition in product repair markets.

To your knowledge, has the Competition Bureau conducted any investigation related to the right to repair? If so, what was the outcome?

I'll start with Mr. Lawford.

[John Lawford, Executive Director and General Counsel, Public Interest Advocacy Centre]

Thank you, Chair.

Honourable members, my name is John Lawford. I'm executive director and general counsel at PIAC, a national not-for-profit and registered charity. We provide legal and research services on behalf of consumers and, in particular, vulnerable consumer interests concerning the provision of important public services. PIAC has been active in the digital consumer protection world for over 20 years.

PIAC supports Bill C-244's creation of an exception to technical protection measures under the Copyright Act to allow consumers and businesses to circumvent TPMs for the purposes of diagnosing, maintaining and repairing a consumer product in which a computer program is embedded. PIAC believes that consumers should have the option to repair their own products or select repair providers of their choosing.

The fact that mechanical or electrical parts have been replaced by software in many consumer goods, such as household appliances, medical devices and vehicles, must not impede that possibility. Currently, consumers cannot legally circumvent TPMs, and as a result they are forced to use manufacturer repair services or manufacturer-endorsed, authorized repair shops when something goes wrong.

This restricted access makes it possible for manufacturers to set inflated prices, extend timelines, disconnect users' access when TPMs are circumvented, prevent users from accessing their own data, and create other unfavourable conditions for product utility and use, which can harm consumers financially, emotionally, and even physically. If the product needing repair is a tool required for work, such as a vehicle or a table saw, then manufacturer-imposed repair restrictions can potentially lead to job insecurity.

Consumer inability to circumvent TPMs can also create life-and-death situations. Under the current regime, many people who own software-integrated medical devices, such as insulin pumps and oxygen machines, cannot fix the medical equipment themselves or have qualified technicians service their devices without authorization from the manufacturer. This inability to seek out quicker or more cost-effective solutions places strain on those consumers and may result in their underservicing or needlessly replacing incredibly vital, expensive medical equipment.

The effects of limited repair options have only been exacerbated by the COVID-19 pandemic, which is creating workflow disruptions, supply shortages and reduced access to in-person services.

The expression of the repair right in Bill C-244 indeed covers a wide and generic range of software-enabled products. This aspect of the bill is a strength and is not over-broad. This means it applies to a piece of farm equipment, a thermostat, a medical device or a gaming console. This wide scope is needed to avoid siloing variable consumer rights in particular products.

Diagnosis, maintenance and repair are all related acts that further the public interest, the aims of which are: consumer freedom and the right to use their own, legally owned items; extension of the useful life of these products; avoidance of the consumer costs and the environmental harm from needless disposal of workable products, which often contain, as mentioned, toxic or precious, expensive-to-obtain materials and minerals; and increased control of the timing and expression of consumer demand, which can lead to increased competition, consumer choice, lower prices, improved customer service, greater innovation, and support of small, local repair businesses.

I'll speak briefly to what is missing in the bill—both interoperability, which, as has been mentioned, is the subject of another bill; and consumer manuals.

The bill lacks an exception to copyright infringement that allows consumers to find, reproduce and disseminate information such as diagnostic codes and repair manuals for the purpose of facilitating repair. This exception would be complementary to the TPM exception at issue in this bill and would better support the development of a repair market.

The new repair information right would be a species of fair dealing. Repair information requirements could be limited to personal, non-profit or commercial contexts, depending on where Parliament draws the balance between original equipment manufacturers and repair rights.

Without dealing in detail with interoperability, I'm happy to take questions. It could be either in this bill or in Bill C-294. The scope of interoperability is, I think, the issue, and whether we put a definition of “interoperability” into the Copyright Act in the section under consideration here, or in a different bill or act is something that we can discuss.

In conclusion, PIAC supports Bill C-244 as a necessary consumer protection in the digital economy.

I thank you and look forward to your questions.

[Matthew Hatfield, Campaigns Director, OpenMedia]

Good afternoon. I'm Matt Hatfield and I am the campaigns director of OpenMedia, a grassroots community of nearly 300,000 people in Canada who work together for an open, accessible and surveillance-free Internet.

I am speaking to you from the unceded territory of the Stó꞉lō, Tsleil-Waututh, Squamish and Musqueam nations.

I am thrilled to be here to tell you that Copyright Act amendment Bill C-244 is critical and common-sense legislation that you should pass immediately. Canadians need full ownership of the products we buy, and that means being able to get them diagnosed and appropriately fixed by anyone we choose, including ourselves. Bill C-244 will help us do this.

Digital technology is increasingly built into everything. Not just computers and phones but also cars, appliances and even clothing are now digitally intelligent and connected. We're seeing the birth of the Internet of things, a world in which everything we own can digitally communicate. If we can make citizens and consumers the full owners and primary beneficiaries of that world, we're looking at a very exciting future; but if we allow the Internet of things to wrest control of our possessions from us, leaving us stranded by fridges, farming equipment and everything else that requires constant approval from the original manufacturer's data centres to perform their basic functions, we're on the threshold of a nightmare.

Sound rights-reinforcing legislation like Bill C-244 will make the difference in what comes next.

In the pre-digital world, producing an excellent product and selling lots of it once was considered good business. In the digital world, many companies see that as a fool's game. Why charge a one-time price when you can transform your product into a service and collect perpetual fees for the life of the consumer? Some ways of doing that are relatively benign and consumer-friendly, like most streaming services, but some are plainly unfair and parasitic.

The digital locks that Bill C-244 will prevent are a clear example of parasitic abuse of power by manufacturing companies. Digital locks force consumers out of the competitive market and into a monopoly market in which the manufacturer sets the cost of repair parts and services. Sometimes they even lock customers into a repair market that no longer exists, as the manufacturer goes out of business or stops supporting their devices well ahead of schedule.

Not surprisingly, customers often find that repairs in this system somehow cost nearly as much as a new device and wind up buying a new product rather than repairing the otherwise functional device they have. A public survey we commissioned in 2019 showed that 76% of Canadians had thrown out a digital device that could be repaired to be fully functional due to fixable problems like dead batteries, cracked screens or lack of security software updates. Electronic devices frequently contain rare minerals and compounds—some toxic—and represent a spiralling share of our societal waste, with net global e-waste growing by an estimated three to four per cent a year.

That is bad for the consumer, bad for society at large and bad for the environment—bad for everyone except the manufacturing company in question. Preventing a net social loss due to bad incentives is exactly the kind of problem on which we need the government to intervene.

Bill C-244 isn't going to get us all the way there by itself. I hope our government will also adopt the interoperability changes in Bill C-294 and introduce full right-to-repair legislation soon thereafter. We also agree with the speakers from CFLA, who flagged the importance of archival copyright exceptions.

The big picture is that it isn't enough to stop manufacturers from suing repairers or customers who break their software locks to repair their devices. Much more is needed to right the growing imbalance between what manufacturers choose to provide and what Canadians need for an affordable green future. To name just two common-sense changes, I hope we will soon see an obligation for manufacturers to provide replacement parts, instructions and software security updates for their products for a healthy five to 10 years after purchase, as exists in the EU; and I hope that we will see legislation requiring products to display a repairability score at purchase so that manufacturers are incentivized to compete on durability and long-term performance, not just initial price.

I was privileged this year to work with the environmental non-profit Équiterre on a deeply thoughtful report studying how to implement the right to repair in Quebec and Canada. I encourage all of you who want to see this right fully implemented to give it a close read.

OpenMedia has collected nearly 20,000 petition signatures from our community asking you to fully legislate the right to repair. Passing Bill C-244 is a critical and necessary step to fulfilling that request. We have been truly heartened by the level of bipartisan consensus shown around Bill C-244. It proves that the wheels of democracy continue to turn, and that you, our representatives, can still come together to support measures that are plainly in the public interest. We hope to see that consensus continue to move forward, both on Bill C-244 and on full right-to-repair legislation.

Thank you. I look forward to your questions.

[Catherine Lovrics]

Okay.

Since 1997, Canada has recognized that adequate legal protections for TPMs are indispensable to protect copyright. Since then, reliance on TPMs has become integral to the digital economy.

Today, TPMs not only play an important role in IP protection but are relied on for safety and security. For example, TPMs help to ensure health, privacy, safety and environmental standards are maintained once products are in the hands of consumers.

Through various copyright treaties, Canada not only has agreed to protect TPMs but has agreed that any exceptions to TPM protections should be very carefully crafted, supported by evidence and focused narrowly to ensure TPMs remain effective. IPIC believes amendments are needed to comply with our treaty obligations, including the WIPO Internet treaties and CUSMA.

We are concerned with the blanket approach taken in the current bill and unintended consequences that may follow. We heard honourable member Wilson Miao, among other witnesses before the committee, discuss the need to develop a right to repair framework. We agree: A framework is required.

In particular, IPIC supports evidence-based exceptions that permit circumvention of TPMs to enable a right to repair. We recommend that goods that benefit from the exception be specified in regulations, subject to a framework that assesses the specific use case.

We've proposed a regulatory framework that would consider factors including that the TPM is indeed demonstrated to have an adverse impact that warrants circumvention; that enabling access to computer programs would enable repair and not copyright infringement; and that circumvention does not carry risks to health, safety, privacy and security. Such a framework would comply with our treaty obligations, better align with our trading partners and manage other risks, all while aiming to achieve the policy objectives set out in the mandate letters.

Further, and importantly, IPIC is of the view that the exceptions should not enable distribution or trafficking in circumvention tools. We recommend that the bill be amended accordingly to instead enable service providers to exercise the right to repair on behalf of consumers.

Any exception that would permit distribution of circumvention tools raises serious concerns. For example, as stated in the WIPO guide on the Internet treaties, once placed on the market for a specific purpose, such tools would then become available for all to use with impunity. Permitting sale of circumvention tools is not only out of step with our trading partners but also inconsistent with the evidence before this committee.

Many witnesses have discussed the importance of this bill's enabling a robust aftermarket repair service industry. Those comments appear to misunderstand the bill. The bill as drafted does not introduce an exception for service providers, and IPIC proposes that the bill be so amended.

IPIC also recommends amendments to ensure that what constitutes a repair is understood to be the proper functioning of a product according to its approved specifications. We believe it's important to be clear that the bill enables repairs and not modifications. Manufacturers' specifications aim to comply with standards to protect the environment as well as the health, privacy and safety of Canadians.

IPIC also encourages studying the right to repair in the context of the commercial rationale for manufacturers disclaiming liability and voiding warranties if a product is tampered with and/or updated with unauthorized aftermarket parts.

As TPMs are an essential safeguard to the digital and connected economy well beyond IP, circumvention should ensure repairs are safe: that they do not risk health, personal injury or property damage and that they maintain security, such as protecting the personal information of Canadians and preventing interception to gain unauthorized control over a consumer product. This is particularly important given the explosion of the Internet of things and computer-controlled products like self-driving cars, and in a time when hacking and ransomware are pervasive, along with state-sponsored terrorism.

Finally, we also recommend small technical amendments to the bill to address a redundant reference to “computer program” in clause 1 of the bill: A “computer program” is a work.

In sum, our proposed amendments provide a framework for case-by-case assessments that would consider the risks and benefits. IPIC recognizes that Bill C-244 is only one piece of a framework and that a robust framework would involve other areas of law, with provinces at the forefront of facilitating a meaningful right to repair.

I thank all of you for your time, invite any questions you may have and direct you to our brief and proposed amendments, which will follow shortly.