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.

Budget Implementation Act, 2023, No. 1

[Monique Pauzé, Bloc, Repentigny, QC]

Madam Speaker, in her speech, my colleague said that nothing is working here in Canada. The Bloc Québécois also finds that most of the time the government is just treading water, when there is a lot more that could be done for Canadians.

For example, the government launched two consultations focusing on agriculture. With regard to the first consultation, Bill C-294 and Bill C-244 were just examined in committee, so why is this consultation necessary?

With regard to the second consultation, the government wants to consult the provincial and territorial governments to help farmers with urgent financial needs. Why hold another consultation when the government just negotiated the agricultural policy framework?

Does my colleague have a word to describe that? It is as though we are taking one step forward and two steps back.

I will let my colleague come up with a word to describe the government's approach on this.

Industry and Technology

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Mr. Speaker, I have the honour to present, in both official languages, the 11th report of the Standing Committee on Industry and Technology in relation to Bill C-244, an act to amend the Copyright Act (diagnosis, maintenance and repair).

The committee has studied the bill and has decided to report the bill back to the House with amendment.

I also have the honour to present, in both official languages, the 12th report of the Standing Committee on Industry and Technology in relation to Bill C-288, an act to amend the Telecommunications Act (transparent and accurate broadband services information).

The committee has studied the bill and has decided to report the bill back to the House with amendment.

I also have the honour to present, in both official languages, the 13th report of the the Standing Committee on Industry and Technology in relation to Bill C-294, an act to amend the Copyright Act (interoperability).

The committee has studied the bill and has decided to report the bill back to the House also with amendment.

[The Chair, Liberal, Joël Lightbound]

I call this meeting to order.

Welcome to meeting No. 63 of the House of Commons Standing Committee on Industry and Technology.

Pursuant to the Order of Reference of Wednesday October 5, 2022, we are studying Bill C‑244, An Act to amend the Copyright Act (diagnosis, maintenance and repair)..

Today’s meeting is taking place in a hybrid format, pursuant to the House Order of Thursday, June 23, 2022.

We will now continue with clause-by-clause consideration of Bill C‑244.

We will resume debate on amendment G-1 of clause 2 in Bill C-244.

I will recognize MP Fillmore.

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

Thanks.

We're going to have a further conversation, I think, at this committee around ensuring compliance with CUSMA. Obviously, it applies to Bill C-244 as well. It's been a more challenging conversation for this bill as well.

To Mr. Rosborough's point, as I understand it, you mentioned article 20.66(4)(h). However, article 20.66(4)(a) says:

non-infringing reverse engineering activities with regard to a lawfully obtained copy of a computer program,

Okay. Check.

carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs

One would think.... The fact is that interoperability is clearly marked out here as an exception. You then have the basket clause in paragraph (h) that you pointed to.

I guess the question is not for you, Mr. Rosborough, but for Ms. Lovrics or your colleague.

Given articles 20.66(4)(a) and 20.66(4)(h), so that I'm better prepared to ask the question when we have a trade expert in front of us, how should I understand a CUSMA objection in the course of Bill C-294?

[John Lawford]

You're right. I don't think planned obsolescence would fit well into this bill, but I do think the obligations that are in the French law to tell people what is replaceable and how long it will be available on the market would be helpful here.

As long as you're not in a monopoly situation like John Deere, where only these guys, or maybe one or two other manufacturers, build what attaches to that equipment, in more consumer product areas, such as the smart home, you might have a choice of three, four or five smart home providers. At the moment, we don't know what they're going to support or how to replace the pieces if they break in these systems. Consumers can't be sure that they won't pick a system that is quickly outdated and doesn't work. Then they have to replace the whole system.

Having a little bit of information at the front end about replacement parts and being allowed to do that would seem to be complementary to what this bill is trying to do, and to some extent Bill C-244.

[Dr. Alissa Centivany]

Maybe I'll go first. Anthony is being polite.

Yes, with regard to supply chain shortages, there are two aspects to that. One is to have the capacity to manufacture at home, so certainly to the extent that this bill would enable secondary markets to emerge for add-on products and add-on innovation, I think this bill is critical to guard against the risks of supply chain disruption, similar to the ways in which Bill C-244 mitigated some of those problems by providing a means by which we could extend the useful life of the things that we already have.

[John Lawford]

The difficulty you have is that all of the bills are trying to slice this in a slightly different way, but they're complementary, I think.

In relation to the one that we're presently speaking about, from a consumer point of view I think it's going to look ridiculous if our average consumer can't go into an independent repair shop to fix their car and instead be told that no, you have to go to Chrysler to do that. That's nonsense and that has to be fixed.

To hear that homegrown editions, such as a manufacturer like Honey Bee, can't operate in Canada and are disadvantaged vis-à-vis the United States because John Deere operates there is also nonsense. That has to be fixed.

The other bill, Bill C-244, which I believe we testified on as well, is taking a bigger scope to try to aim at a general right to repair. I agree that it would be much better done inside a review of the Copyright Act in a holistic manner so that concerns from specialty IP lawyers and trade people could be addressed, but you're trying to do it through Parliament.

I think the bottom line, though, is that you're trying to say that the consumer and small business dissatisfaction with the copyright balance that was struck is strong. The only thing I would add to the mix, which I was trying to say today, is there's a whole consumer protection aspect here that's not being brought into the conversation. It's done in other countries through things like consumer protection codes at a federal level, and we just don't have that in Canada. The best place I can think to put it is in the Competition Act. I don't want to use all of your time, Mr. Masse, but I hope that answers in part your question.

[Dr. Alissa Centivany]

Yes, thank you. It's a very quick point.

I think we can all recognize, both in this discussion and in the discussion on Bill C-244, that there is broad support across Canada, across industries and across partisan affiliations for these kinds of bills. While changes to the copyright law's TPM provisions are not going solve interoperability or right to repair on their own, and there will be other legal considerations at the provincial level that need to be taken into account, I see this as an opportunity for provinces to perhaps distinguish themselves in a way that is pro-innovation, pro-competition, pro-consumer. If we consider the United States, we know that California has more progressive laws and promotes positive shifts, while other states in the country may be more conservative.

I actually see this as being a really promising possibility.

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

Thank you, Mr. Chair.

I want to thank the panellists and witnesses for their interventions. We're having a fascinating conversation.

The conversation about compliance with CUSMA is at the top of my mind, as well, but I understand my colleague already talked about that. Perhaps we'll have further discussion with another set of witnesses later on.

I want to ask you a question about the industry or class of product we should consider exempting. We heard, in previous testimonies, whether they were on Bill C-244 or this particular bill, industry coming forward and saying, “We need to be exempted from these bills.”

I will start with that. It's an open question for anyone who wants to comment on it.

Go ahead, Mr. Rosborough.

[Dr. Alissa Centivany]

Thank you for the question.

I completely disagree. Let me give you a simple example from my own life.

I have three computers at home. I have an Apple computer, a PC and a machine that runs Linux. None of these computers talk to each other. They don't talk to each other because they can't. From a technical perspective, they were designed not to be able to talk to each other. It's the same thing with all the peripherals, connectors and things. Even the software programs don't want to connect to each other. The claim that interoperability is not a problem flies in the face of our common sense, daily experiences with technology.

I could also very quickly respond to the safety and security issues that were raised.

During my testimony on Bill C-244, opponents raised safety and security issues as well. My response with regard to interoperability is roughly the same: To the extent that safety and security are legitimate concerns, copyright law is not the right law to look to for protecting those interests. There are other laws that do that.

In addition, positioning consumers and the third party technicians, providers or follow-on innovators as threats is, I think, blatantly anti-consumer and anti-competition.

Finally, to the extent that safety and security are real issues caused by hacking or malfeasance of some kind, hackers already have sophisticated tools at their disposal to engage in those things. This bill isn't going to change that.

Perhaps I'll stop there. Thank you.

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

Thank you.

My next question is open for all witnesses.

During the study on Bill C-244, there were opposing views on the bill. OEMs were quite opposed to the right to repair frameworks for a number of reasons, including safety concerns and IP theft.

Are these issues of concern for Bill C-294 as well? What are your thoughts on this?

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

Thank you, Chair.

Thank you to all of the witnesses for making time for this committee.

Ms. Centivany and Mr. Rosborough, thank you again for being here. We really appreciated your testimony on Bill C-244 a few weeks ago. As we understand it, Bill C-294 raises similar concerns around Canada's obligation under CUSMA. Would you agree with this? Are there suggested amendments that you would make or that you want the committee to consider?

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

Thank you.

Chair and honourable members, my name is John Lawford. I'm the executive director and general counsel at the Public Interest Advocacy Centre.

PIAC is a national non-profit organization and a registered charity. We provide legal and research services on behalf of consumer interests, in particular vulnerable consumer interests concerning the provision of important public services. We've been active in the field of digital consumer protection and policy for over 20 years.

PIAC supports Bill C-294's goal of the creation of an exception to technical protection measures under the Copyright Act to allow consumers or businesses to circumvent TPMs for the purpose of attaching a further product to enhance the utility of the original consumer or business product in which the TPM is embedded.

The expression of the circumvention right in Bill C-294 covers all software-enabled products, but only to the extent that the TPM circumvention is required to make another product interoperate with the restricted product. It is aiming, therefore, at attachments or aftermarket products.

This aspect of the bill is its strength, as it limits its ambit and perhaps will not tread on the perceived rights of the initial owner's copyright or market. In other words, the primary or parent product must still be purchased by the consumer, and then the attachment or aftermarket product is permitted to read the information from the parent product to be made functional.

What this bill does not do, unlike Bill C-244, is give consumers a right to repair that furthers a number of public interest aim. These include consumer freedom and right to use their legally owned items more flexibly, the extension of useful life of products, the avoidance of consumer costs and environmental harm from needless disposal of otherwise workable products and the toxic and expensive precious minerals that are in them, and an increased control of the timing and expression of consumer demand that can lead to increased competition, consumer choice, lower prices, improved customer service, greater innovation and support of small local repair businesses.

What is not in this bill is a consumer right to be informed of the possibility and availability of replacement parts. This is required in France under their Code de la consommation, under article L111-1, which requires vendors to publicly list a product or service's functionality, compatibility and interoperability with computer programs.

Parliament would also do well to consider, as in article L111-4 of the same French law, stipulating a list of consumer electronic products that must have replacement parts available to any repairer for a period of at least five years after the sale of the last unit of the specified consumer goods.

Finally, subject to provincial jurisdiction, Parliament should consider an offence, perhaps under the Competition Act, of planned obsolescence, which is an offence under the same French law at article L441-2.

PIAC believes that consumers should have access to a wider range of interoperable products. The government's recent copyright consultation stated that interoperability “fosters competition, promotes overall business competitiveness and supports incremental innovation. Interoperability also gives consumers more ability to make the most use of the products they buy.” We agree.

In order to achieve improved access to compatible goods, competing companies must be able to examine each other's software for the purpose of developing interoperable products. Currently, manufacturers use TPMs to deny competitors access to the information, preferring instead to make goods that can only be used in conjunction with other products that they manufacture in a closed loop that encourages anti-competitive lock-in.

PIAC supports adding a definition of “interoperability” in section 41.12 of the Copyright Act. In his paper, Anthony Rosborough argues for adding such a definition to the act, as allowing the term to be used in section 41.12 but leaving it undefined simply empowers original equipment manufacturers to narrowly define interoperability and to leverage the legal uncertainty with third parties to their advantage.

The definition of “interoperability” could parallel that in 17 U.S.C., section 1201(f)(4), which is “the term 'interoperability' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.” It should also be extended to include replacement physical parts, interfaces and other compatibilities as well.

In conclusion, we support Bill C-294 as far as it goes, but we want additional consumer protection in the area of consumer product use versus copyright overreach in the digital economy.

Thank you very much. I look forward to your questions.

[Jamie Pegg, General Manager, Honey Bee Manufacturing Ltd.]

Mr. Chair and committee members, my name is Jamie Pegg and I have the privilege of representing 180 employees and nine area communities as general manager of Honey Bee Manufacturing. I have with me Mr. Scott Smith, our CSI manager.

Greetings are offered by Ms. Donna Boyd and the 240-plus members of the Agricultural Manufacturers of Canada, and by Mr. John Schmeiser and the 4,000 members of the newly developed North American Equipment Dealers Association.

We want to thank you for the opportunity to express our support for Bill C-294.

Three years ago, we sat before this committee with respect to the CUSMA trade agreement. We discussed the need to address the copyright changes Bill C-294 now brings to the table. In 2020, the reasons for changes were based on expected events. Since then, we have felt the impact.

TPMs have disabled technology at normally interoperable intersections between products from Canadian agricultural manufacturers and OEM equipment platforms. The result is a 53% market denial for Honey Bee in Canada alone. The proverbial USB port has been replaced by an OEM-specific connection that is not publicly documented and has no available compatibility parts.

We are a global company, from the people we work with to the 29 countries we export to. Honey Bee sells 50% of its product in North America and exports the remainder to the rest of the world. However, our industry is still placed on an uneven playing field versus our U.S. counterparts. Foreign platforms seek to prevent participation by Canadian brands.

Honey Bee's opportunity to capitalize on intellectual property is based on our ability to interoperate with OEM equipment platforms. Interoperability means that a Honey Bee harvest header can “plug and play” with OEM equipment. Historically, this has been provided in a straightforward and obvious way, like the way a keyboard plugs into a computer.

Today, Canadian industry is technically blocked by some dominant international brands, with the impact being a loss of substantial market participation opportunity. The net result is “authorized use only”. This is controlled by OEM digital locks and keys that are unavailable to manufacturers of implement. Instead of spending our research budget on innovation, we are burning it on adaptation.

It is important to state that in no way should Canadian manufacturers, dealers and—most importantly—farmer customers be at a disadvantage on choice. Historically, we had an integrated farm equipment market in North America and abroad. Honey Bee innovation caters to the specific needs of many markets and considers their unique environments, practices and crops. Meeting these challenges brings Canadian innovation to the world. The impact of technical lockout by OEMs will be the collapse of our Canadian implement manufacturing industry, which will decimate many of our smaller communities.

In Bill C-294, “innovation” is the act of offering improved components or products for use, either as an independent product or used in conjunction with other products. When innovation is applied in conjunction with another product, it is required to interoperate in a compatible way. In Bill C-244, “repair” is the act of restoring a failed device to its original state, as designed and manufactured. Neither of these needs access to internal source code or involves undesired exposure to valued IP. What is needed is the supply of external specifications for protocols, and interfaces to achieve the required functionality result.

Historically, this has been the norm. As this is no longer the case, it is now an industry requirement that companies can legally reverse-engineer a product. This may include circumventing a TPM for the purpose of accessing the required systems in order to develop the information needed for achieving interoperability or repair.

The CUSMA agreement does not place U.S. and Canadian implement manufacturers on the same footing. U.S. copyright law makes exceptions for legally modified, motorized agricultural equipment for the purpose of interoperability. Canadian copyright law does not. This makes it illegal for Honey Bee, or any other Canadian company, to reverse-engineer OEM platforms to achieve the required interoperability. This means products made in Canada cannot be legally adapted in Canada. Canadian manufacturers and farmers are at a huge disadvantage. Why is that? It's a lack of clarifying language.

Bill C-294 solves this problem.

At the start of this testimony, I offered you greetings from our employees, their families and our communities. My desire is to see the number of employees and families increase with company growth because Bill C-294 is passed. If we really want to support Canadian content and innovation, we should support the work of Canadian manufacturing. By passing Bill C-294, we are voting for Canada.

Thank you.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Madam Speaker, I have the honour to present, in both official languages, the ninth report of the Standing Committee on Industry and Technology in relation to Bill C-244, an act to amend the Copyright Act with regard to diagnosis, maintenance and repair. The committee has studied the bill and, pursuant to Standing Order 97.1(1), requests a 30-day extension to consider it.