THE STANDING SENATE COMMITTEE ON BANKING, COMMERCE AND THE ECONOMY
EVIDENCE
OTTAWA, Wednesday, October 2, 2024
The Standing Senate Committee on Banking, Commerce and the Economy met with videoconference this day at 4:28 p.m. [ET] to consider Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair); and, in camera, for consideration of a draft agenda (future business).
Senator Pamela Wallin (Chair) in the chair.
[English]
The Chair: Welcome to this meeting of the Standing Senate Committee on Banking, Commerce and the Economy. We are a bit late, but that is because there was a vote in the Senate.
My name is Pamela Wallin, and I serve as chair of this committee. I will introduce the other members who are here today. We have Senator Loffreda, the deputy chair; Senator Bellemare; Senator C. Deacon; Senator Gignac; Senator Marshall; Senator Martin; Senator Massicotte; Senator Varone; and Senator Yussuff.
Thank you all for being here today. We will begin our examination of Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair).
For our first panel today, we have the pleasure of welcoming, in person, Member of Parliament Wilson Miao. He is the sponsor of Bill S-244 and the MP for Richmond Centre. Welcome to you, and thank you for joining us today. We will begin with your opening remarks.
Wilson Miao, Member of Parliament, Richmond Centre, British Columbia, sponsor of the bill, as an individual: Thank you, honourable chair. Members of the committee, thank you for having me and giving me the opportunity to speak to you today on my private member’s bill, Bill C-244.
This is a critical piece of legislation which I am proud to champion as we seek to amend the Copyright Act and advance a much-needed right-to-repair framework in Canada. I would also like to extend my gratitude to all those who have supported this bill, especially Senator Deacon for leading this bill here in the Senate.
As Canadians, we know that technology has become an essential part of our daily lives, from the smart phones we carry to the equipment that drives our industries. Yet, many of the products we rely on have become increasingly difficult and expensive to repair. Canadians, particularly those in rural and remote communities, are often left with limited options — either paying excessive repair fees or replacing with a new product. Bill C-244 is about empowering Canadians, allowing them to circumvent technological protection measures, also known as TPMs, for the sole purpose of diagnosis, maintenance and repair.
TPMs, while designed to protect intellectual property, have unintentionally limited Canadians’ ability to maintain their devices, forcing more waste into our landfills and promoting planned obsolescence. This bill is not just about the right to repair the products we own; it is about fairness, affordability and sustainability. It is about reducing e-waste, strengthening consumer rights and supporting local repair shops and small businesses. By advancing this legislation, we will stimulate job creation, foster a more competitive marketplace, offer affordable solutions for Canadian families and small businesses and, most importantly, protect our environment for us and future generations.
Bill C-244 is a necessary step towards a sustainable, equitable future, one that ensures Canadians are treated fairly in the marketplace and have the freedom to make choices that work for them. I urge this committee to support this bill and move forward with the right-to-repair framework that our country needs. Thank you, and I look forward to any questions.
The Chair: Thank you very much for being here today and for your bill. I think we will just go right into the questioning, and we will begin with our deputy chair, Senator Loffreda.
Senator Loffreda: Thank you, Mr. Miao, for being here today at our committee, and congratulations on bringing forward this much-needed legislation.
There were concerns raised by various stakeholders on various issues. Some of the concerns related to the compliance with the Canada-United States-Mexico Agreement, or CUSMA. There were amendments in the House of Commons. Do you feel those amendments addressed these concerns and resolved the issues? What was the reasoning behind those amendments? Are you satisfied now with the state of the bill — the state it is in — that we are looking to concur with?
Mr. Miao: Thank you very much, Senator Loffreda, for your questions. To address the CUSMA issue, the main point is to make sure the amendment to the Copyright Act does not go against the compliance with CUSMA and making sure that the work that is being carried out for circumventing any technological measure of electronic devices can be done for the sole purpose of repair.
Currently, the context of the bill, with the amendments that we put forward to incorporate the CUSMA side of compliance, is fulfilling that part. For additional context, currently, in the United States, more legislation surrounding the right-to-repair issue is done at the state level, rather than at the national level. With that context, I’m quite satisfied with how the bill is right now.
Senator Loffreda: So you feel it does enhance the bill? You are satisfied with the amendments and everything brought forward? It does address the concerns of the various stakeholders?
Mr. Miao: Yes, and I think this is the part where right now Canada is behind on having a right-to-repair framework, whereas if we are comparing it globally, the EU is taking a lead. Even in the United States right now, over 30 states have legislation with the right to repair.
Senator C. Deacon: Thank you, MP Miao, for being here and for your work in this regard. You have achieved success where there have been a lot of other efforts in the past to get a bill doing exactly this through the House of Commons. You did so this time with a unanimous vote in favour of the bill.
One of the things that is different here is that it is technologically agnostic. Can you speak to the importance of this bill being technologically agnostic, applying right across all technologies and sectors?
Mr. Miao: Thank you, Senator Deacon, for your work and also for putting this forward in the Senate. I think this bill is very important as we have to move forward with a right-to-repair framework here in Canada. The world we live in now is filled with all types of technology. TPM is also known as a digital lock, which prevents a lot of access if the sole purpose is to repair or to make diagnostics and maintenance. Right now, it is important to consider that nothing is being copyrighted here. Intellectual property is still protected, but because this particular bill allows the circumvention of TPM, it gives consumers more power to choose to fix an item, instead of throwing it into the landfill and replacing it with a new product.
Senator C. Deacon: One of the things in terms of being technologically agnostic is it allows the sector-specific changes to be made to provide protections in each sector. When you are talking about software, it’s in everything now. If there are specific risks that need to be managed, they can be managed in a sector-specific manner. Is that the thinking behind the bill?
Mr. Miao: Yes, and I think there will be more legislation and policy coming forward after this bill has passed because, in different industries and sectors, there are concerns surrounding the circumvention of the TPMs, mostly around the safety and security issue. When you are trying to open the whole door for people who can see everything because they need to do a repair, there is a potential risk that the lock becomes accessible for something that’s perhaps illegal to do. As the current Copyright Act stands, if anyone decides to do a fix on their own product, it is considered illegal to do so. There is a huge risk for consumers to be sued by a company or a manufacturer.
Senator C. Deacon: Just for maintaining their products?
Mr. Miao: Just to maintain it or even fixing it.
Senator C. Deacon: Even with somebody who is technically qualified, doing it legally.
Mr. Miao: Yes. An example I can use is the automotive industry where there is a voluntary agreement. It’s not forcing all players to be part of this agreement, but if you don’t have the tools you need to access the plug or the device — or the large computer, I call it, with four wheels — then you may not even be able to diagnose the issue, not to mention finding a solution you can use to repair the problem.
Senator Massicotte: I thank you for the efforts and the work you’ve done so far to bring us here. The way you describe it, most will be in favour of it. I think it is a very good idea. I thank you for that.
The only issue I find, having read all the materials, having read the act, is how do we know whether this bill achieves what you said verbally? In other words, we all know what you want to do. We probably all buy into it. But how do we know? Second, we find in life, in everything, when we get a home run, we may find out four or five years later that it was not a home run, and people are abusing it. People find solutions while the bandits or the thieves will find different ways to get the access. How do we deal with those issues?
Mr. Miao: Thank you very much for that question. How do we know that this bill actually does what it says it does? When the Copyright Act was created quite some time ago, it didn’t consider that technology would advance so much that everything we use now would actually have a chip in it. As an example, when I was a student, I had to buy an inkjet printer. In order for me to refill the ink, I had to buy a new set that cost the same price as a printer. There are some knockoff brands or OEM products that have the same ink that you can use; however, that kind of stopped because once they put a chip behind that ink cartridge, then you are no longer synchronized with the device. That means you are either forced to pay for expensive ink cartridges or, instead of continuing to use this model, you might consider upgrading to a new one that comes with ink in it.
This is also a key area I want to emphasize. We are creating a lot of waste in our landfills in different types of contexts, not only emphasizing electronics, but even as simple as a hair dryer. If a piece of a hair dryer got broken because it fell on the ground, you might not have the part to replace it. Even if you do have the part, if there is a chip inside the hair dryer, it might not recognize the part and allow you to have access to actually fix the product under normal conditions of use.
I think it is important for us to have that consideration where many of us will have stories related to if there is a way to create such a product, there is a way to break open this product. By saying that, I mean that we are able to circumvent the so-called digital law — the TPMs — and to access it so we can actually find the issue and fix the problem.
Senator Massicotte: To go back to my two questions, first, how do we know that it will do what you say it will do?
Mr. Miao: The context of this bill is very simple: Only allowing the circumvention for the sole purpose of repair, maintenance or diagnose. Anything else — modification, tampering or copyright — is still considered illegal under the bill.
Senator Massicotte: How do we deal with a person who will try to steal an idea and profit from it in an illegal manner? How do we deal with that?
Mr. Miao: I think that is also a case where there are security threats to a lot of the products outside, especially electric vehicles, where many computer components and software are embedded in the machine. Of course, if anyone tampers with that for the use of illegal copyright, then it will still fall under the Copyright Act as illegal.
Senator Yussuff: Thank you for being here and thank you for the initiative. I have three quick questions, and hopefully you can deal with them all together.
The big question is on sustainability. You touched on it in your opening remarks. We know that the vast majority of electronic products are flowing into landfills in large part because you can’t repair many of them. Does Canada have data on how many tons we are talking about?
My second question, which you haven’t addressed but kind of hinted at in your opening remarks, has to do with the jobs in the repair sector that would spring up as a result of this legislation being passed and, of course, the impact it will have on people who want to fix these things.
Finally, how do we compare to other sectors that have already gone under? Your opinion is it has been ahead of us for quite some time in allowing this to happen. I think we can learn a lot from their experience, but in your reading and your understanding when proposing this legislation, what can you share in terms of that experience and what we can learn from it?
Mr. Miao: Thank you, senator, for those questions. Let me share with you some data from the University of Waterloo. In 2020, Canadians produced over 1 million tons of electric waste every year, and that is expected to reach 1.2 million by 2030. Based on this number, it is a strong reminder to all of us that we might not feel how much waste is going into landfills because we never see it, but the products we use nowadays do not last as long as we think they will. Compared to a washing machine I used to own at my house that ran for 25 years, a brand-new one currently starts to have problems after one and a half years due to planned obsolescence.
I guess it is also important to note that the companies that are creating these products want survival too. In order to make sure new models come out and people continue buying them, then there is a demand for always getting upgrades. I believe Apple just released iPhone 16 recently. Many people may not need a new phone, but because of the new technology, they are willing to upgrade. Imagine how much e-waste is going into our world right now.
To your second question regarding businesses and third-party repair companies, I think it is also promoting a sense of competition in our economy because it’s encouraging for small businesses to thrive and to find ways to repair and provide services to local communities and allow long-term sustainability. Right now, in terms of broken products, what choices are available to consumers at this stage? It’s either going to an authorized dealer to fix it, but when they are aware of the expensive repair costs, they may wonder if they should buy a new one instead, which is more advanced, or pay 60% to 70% of the cost of buying a new one to repair the old one. I am hearing from my stakeholders that, usually, if there is sentimental value, they will spend whatever they can to fix it. But if it is easily replaceable, then the new option is there.
I think this comes to your last question about consumer empowerment and allowing them to have the choice of what to do with a broken item; they may have saved up for a long time to make that purchase. A more personal story I heard is a family who bought a coffee machine that broke down after just a week. The child in the family knocked it off the counter by accident. There was just one broken piece — everything was still functional — but they put it aside because they could not fix that piece.
It is also costing more for Canadians to repair broken products or they pay more to buy new products. This will have a huge impact on how sustainable our economy is in the long term.
[Translation]
Senator Bellemare: Welcome to our committee meeting, Mr. Miao.
I will continue with the question that other senators have asked, particularly with respect to the issue of programmed obsolescence. I understand that your bill is designed to prevent programmed obsolescence and to facilitate the repair of our household appliances, electronics or other devices.
Do you have any examples where the mere fact of amending the Copyright Act would encourage the repair industry? My impression was that countries that used such a legislative approach also had tax credits or other similar incentives. They had a strategy to encourage skilled labour, training and service. It looks like magical thinking. I think that it is a good thing to want to address the issue of programmed obsolescence, but I would like to see comparisons with other places that would have had the same kind of policy.
[English]
Mr. Miao: Thank you for your question.
Regarding planned obsolescence, people look at it as buying something that is meant to have a lifespan. By shortening the lifespan of a product means you are not getting the value that you put in to purchase that. I will give you a good example.
In the past when we had mobile phones, batteries were easily detachable to change the battery because it ran out. Nowadays, most cell phones have the battery glued into the device, so if you are to repair because of a battery malfunction, you have to open up that device up and unplug the battery from the chip. This will affect how the software synchronizes with the new battery going into it. There is a lot more complexity compared to if I got a Motorola and this phone is out of battery, let’s get a replacement, fit it in and you are ready to go.
Times have changed. Because the current Copyright Act that does not allow circumvention for any type of repair, this limits Canadians, giving them restricted and limited choices. It is important for us to have that right and accessibility towards circumventing only for the purpose of repair. But it is also important to address that there can be other policies that can come with it.
You mentioned the tax credit for repair. In the EU right now, some places offer tax incentives. If you are bringing your own device to repair, you don’t have to pay the VAT. I think this is also a good model for us to look at to see the potential for future legislation to come forward. Thank you.
Senator Marshall: Can you take us through the process of how you would circumvent a TPM? Do you have to make contact with the supplier? Can you tell us a practical application?
Mr. Miao: Yes, absolutely. Thank you for asking this, because it is very important to know what it behind the scenes when most of us are not the ones repairing the product. If the repair requires complexity, then it is suggested to find someone who has that experience or that licence to repair, such as appliances, for example.
One thing that is also important for us to realize is that not every device now is easily accessible. You might need a special screwdriver or special tools. This is why it is important for us to consider that. In future legislation, if we are going to put forward policies on working with manufacturing companies or businesses to create the parts necessary for replacing or even as simple as a manual on how to break down the device so you can access it and do the proper repair, we are talking about the repairs that can be accessible. However, let us imagine a very good example that I heard from one of my stakeholders. If a car now requires you to have special tools to change a tire, then how troublesome would that be? You might have to go to a special dealer just to have that tool to access the tire so you can remove the broken tire and replace it with a new one. But imagine if the tire is stuck onto it, then every time you have to change the tire, you are not just changing the tire but you are changing the whole wheel with the tire glued onto it.
There are different types of circumvention toward different types of products that we have, but it is important to consider what is necessary to assist with the circumvention, the tools, the manual, sometimes the manufacturer may discontinue the parts after a few years. In the EU, they also have legislation that says to manufacturers, you have to produce the parts and make it available in the 10-year time frame. There is that protection. These are some great legislations that we can reference for the future.
Senator Marshall: If it is something simple, like the example you gave was the washing machine and there was a piece broken off, you are going to put the piece back on. But if it were something that was more complicated, is it possible that the original supplier or manufacturer may refuse to service equipment or a part that had been serviced by someone else? Is there a risk there?
Mr. Miao: Right now, as we live in this technological era, there is the accessibility to online tools or something like ifixit.com to go there and find ways to fix it yourself. For some devices, I am hearing it is not recommended because of the complexity of that device. That is why it is important to also enhance having third-party authorized dealers or small businesses that can thrive in this area on providing repair service — those who are recognized by the dealership or those who went through comprehensive training and are getting themselves licensed to have access to more complex equipment and repairs.
The Chair: That’s an important point. Thank you.
[Translation]
Senator Gignac: Welcome to our colleague. It seems to be a relatively simple bill. It is only two pages long. I also note that you have received unanimous support from all parties in the other place. However, we have seen in the past bills that had unanimous support in the other place, but that were a little disappointing when we looked at them in committee and found them lacking due diligence.
I note that you have had several committee meetings, received 18 submissions and heard 33 witnesses. Here, our role is to provide sober second thought. Our work will be made easier by the due diligence you have done in the other place.
There were 33 witnesses. There were certainly people who warned or talked about the risks associated with the bill. What were their arguments? Were all the witnesses enthusiastic about your bill?
[English]
Mr. Miao: Thank you for that question. I think it is important for us to listen to how the industry thinks and consulting their perspective. That’s why I understand that ISED has provided a consultation which ended recently, on September 26. I really look forward to what will come out of that report.
There are certain caveats that were discussed during the committee. Many of them do not really apply to this particular bill because this bill is very straightforward. We are trying to modernize and update the current Copyright Act so that circumvention of TPMs are allowed only for the sole purpose of repair, maintenance and diagnosis. Bill C-244 is an important piece, I would say, that moves forward with having a right-to-repair framework here in Canada because of the legal barriers that Canadians face.
As much as we want to think we have the right to do what we need to do with the product we purchased, there are certain limitations right now, with what the legislation is. That is why it is important to hear that feedback. There are many caveats that can be addressed in future legislation, possibly be implemented at the provincial level, because prior to having this bill move forward, the Province of Ontario actually put forward a right-to-repair legislation which did not pass because of this reason. Having this bill moving forward does provide a very strong precursor to allowing a right to repair in Canada.
Senator Varone: Thank you for being here. The question I have is through lived experience, being part of the hotel industry. Many of the hotels that you see in Canada run off of PTAC units, packaged terminal air conditioning units, the through-wall units. Before software, the only thing on them was hardware, meaning you turned a dial and you got your air. Then we were sold to go with a different model that had software included because if the room were unoccupied, it would sense it; it would lower the temperature, and you would save money. But the minute that the software breaks down, people who were used to repairing just the moving parts in the heat pumps were out of sorts because they couldn’t fix the software.
I see the bill; it’s very efficient in terms of where you’re going. But is the pushback from the software suppliers or the hardware suppliers in this right to repair? I just see that fine line where it used to be only hardware, the mechanical parts of whatever equipment you bought. Now that software controls it, the bill is headed towards allowing people to understand the software components that run the hardware. Where do you see the pushback coming from in terms of the industry?
Mr. Miao: Thank you for the question. We need to be clear. It’s important for us to understand what components we are considering within a device that we’re trying to circumvent. Specifically, in this bill, we mention circumventing the technological protection measure, the TPM, which is software embedded inside the hardware that we use.
Most importantly, from the perspective of commercial equipment, when you are investing a large sum into a system, like the HVAC that you’re talking about, the components and the pieces and the parts are also critical when you are making a repair. Even if you have done any repair on the mechanical or hardware side, you will still need to use the software to re-sync the system. Without syncing that system, basically you may have a malfunction or dysfunction of that piece that you can no longer use.
There is convenience in the products that are offered today to help us with our daily lives and to save money in many cases, but it’s important for us to know that, in this piece of the bill, we’re talking about the software and the more digital aspects of the barrier that are limiting consumers’ efforts to fix the problems.
Senator Varone: Thank you.
Senator Martin: Thank you. It’s nice to see you. In terms of the bill, I know you’ve put a lot of work into this, so I’m happy to be part of this session where we get to ask you specific questions directly.
I was listening to the example you gave to my colleague Senator Marshall about the tire and the special tool. I was just wondering about concerns that have been expressed by other stakeholders about the potential to make aftermarket modifications that could compromise safety.
How does Bill C-244 address the risk of individuals using the exceptions provided by the bill to bypass potential safety features in vehicles or other devices? Something very specialized would require special attention. It made me think about the safety feature.
Mr. Miao: Absolutely, and thank you for that question, Senator Martin. It’s important for us to consider all sides.
As I mentioned earlier, if there’s a way to create it, there’s a way to break it. People with wrong intentions might use this as an opportunity to create certain threats or security issues that may arise from this. That’s why it’s important for us to know that the act as it stands, with the amendment to the Copyright Act, doesn’t change the legality of the other areas. If someone was caught tampering or accessing a device for a repair and finding out at the back end how to create it, they are still responsible for breaking law, for tampering and copyrighting the intellectual property of the product.
Senator Martin: That leads me to concerns from manufacturers of health care devices. Would you address how this bill ensures that only qualified professionals are allowed to make repairs on such critical equipment? Those concerns are out there, so what would you say to that?
Mr. Miao: There are other areas that we need to look into, especially if we’re talking about health devices. These are life-saving devices that really help save lives. The pandemic actually brought a very good example. When there is damage or a piece broken on an inhalator, is there access to the parts to make the repair? And is a technician is available to do that?
I have another example I like to raise. We travel from B.C. to Ottawa quite often. In speaking to one of my friends who is a pilot, he says some pieces of the aircraft they cannot touch but an engineer or technician can. For them to flip that switch, someone must have the learning and experience and the licence to do so.
It’s important for us to recognize the skills, the learning and the experience that come from handling complex devices like health care devices. Under the Canada Health Act, we can look into further legislation to have exemptions on certain devices that are not allowed to be circumvented unless it’s authorized for a licensed technician to do so.
Senator Massicotte: I have a stupid question, but you know this is a concern for some companies, especially car dealers, where repair is a big portion of their revenues. They’re not going to be happy campers because it will steal away some business, and it may affect jobs. It may affect employment. It could have a macroeconomic impact, which is concerning to you.
Manufacturers may tweak something on their own products — they can do that — to make it very difficult for a self-made repairman to correct the work. I don’t think there’s anything against that, but how do you deal with these possible consequences of what looks like a simple decision?
Mr. Miao: There’s never a stupid question. Certain complexities come into play and how complex do we want to think about it?
A good example is John Deere. They have been against the right-to-repair legislation, but in the United States right now, because of the legislation, they are forced provide an instruction manual and repair access for their huge commercial equipment. People who are living in rural areas may not live close to dealerships that can do repairs. It is easier for the farmers or the owners of that equipment to have access to it.
That complexity is behind why someone would support and why some don’t support it. The main thing we should be looking at is the sustainable consumerism and how we empower Canadians towards having a right-to-repair framework.
Senator Yussuff: There is a lot of rhetoric from the OEMs, the original equipment manufacturers, that the world will come to an end if we allow this bill to pass. Let me use one example as a characterization of some of that.
A mechanic who works at a dealership fixing cars is a licensed mechanic. A mechanic who runs a garage is also a licensed mechanic. Both have responsibilities with regard to their duties and obligations to ensure what they’re doing complies with their skills and their training.
When we hear the argument that if we allow this bill to pass, the world will come to an end and all kinds of safety issues will happen, isn’t that a bit overblown, recognizing that the technicians and the mechanics have to be licensed to fix a vehicle? That’s part of their obligation as regulated by provincial laws?
Mr. Miao: Absolutely. That’s a good point to raise because people who have the experience of becoming mechanics can be working for dealerships, but they can still continue to work in a garage after they retire. However, the challenge comes in how they can access those parts.
The auto sector is a very good example. There was a voluntary agreement allowing OEMs to fix certain brands of automotives out there, but it’s also accessible for dealerships and repair shops to access parts to fix them.
It comes down to the more complex equipment or products out there that require special attention. I wouldn’t want to be using an MRI machine that is fixed by a technician who is retired or who was fired by a company. There are judgments we have to look at and find a balance.
Senator Loffreda: There is an important issue regarding federal-provincial collaboration on matters affecting contract law, particularly with respect to restrictive licences. Considering that provinces have jurisdiction over the contract law, how will the federal government collaborate with them on the issue of these restrictive licences that might affect competition, innovation or consumer rights? Do you foresee any challenges in doing so?
Mr. Miao: I’m not too sure how that question is related to the bill, but under certain contractual law, for example, if the equipment is being leased from a company, the lessor may have certain restrictions on repairs. For example, if someone leases a van from a dealership and if the lease agreement states that any repair or maintenance must go to a certain third party, then the person is constrained by that contract because of the contractual relationship. However, the contract should not restrict simple maintenance such as changing the oil or repairing a tire. You’re not changing the computer, for example, in an electric vehicle. You’re not trying to change the computer aspect. It comes down to the focus of this bill, which is to allow repair to happen.
The Chair: You don’t see any jurisdictional questions here — I think that is what we were getting at — between provinces and the federal government?
Mr. Miao: I may not be the one to answer this. Maybe you can save it for the officials later.
The Chair: We will ask others. Thank you for that. Thanks, everybody. We were trying to do more in less time, so we appreciate that.
Mr. Miao, we appreciate your efforts, your time and all your explanations here.
Next, we have the pleasure of welcoming, in person, officials from Innovation, Science and Economic Development Canada. We have Patrick Blanar, Director, Copyright and Trademark Policy Directorate; and Luc Laforest, Senior Policy Analyst, Copyright and Trademark Policy Directorate.
Mr. Blanar, I understand you have opening remarks. Please go ahead.
Patrick Blanar, Director, Copyright and Trademark Policy Directorate, Innovation, Science and Economic Development Canada: Thank you very much.
Madam Chair, deputy chair and members of the committee, Canada’s Copyright Act is a law of general application designed to encourage innovation and creativity for the benefit of all society. Generally, the Copyright Act does this by creating a set of exclusive rights for creators and establishing limitations and exceptions to these rights.
As for the technological protection measure, or TPM, regime, it was introduced in the Copyright Act in 2012 in recognition of the new digital reality. It is an enforcement regime that prohibits users from circumventing TPMs. This helps facilitate new business models for the distribution of digital works.
[Translation]
Today, more and more products contain software. In addition, manufacturers often add technical protection measures, or TPMs, to protect software in their products, with the aim of preventing unauthorized access and reproduction.
The use of TPMs by manufacturers, together with the ban on bypassing TPMs, reduces our traditional ability to repair our own products when they break. It is now clear that the Copyright Act, specifically the TPMs regime, may be an obstacle for Canadians who want to repair their products containing software.
[English]
Bill C-244 would address this by amending the Copyright Act to create a new exception in the TPM regime for the purpose of repair. While this remains an important step in empowering consumers, it is also important to keep in mind the limited scope of Bill C-244. It creates an exception to the prohibition to circumvent TPMs in the Copyright Act. This removes only one of the many barriers that could prevent the repair of products. More than Bill C-244 would be needed to create a positive right to repair.
Thank you. I would be pleased to answer your questions.
The Chair: Thank you very much, gentlemen. We’ll begin our questioning with our deputy chair, Senator Loffreda.
Senator Loffreda: Thank you to our panellists for being here. My question is on the impact on innovation. Many times, in Canada, we talk about problems with productivity, competitiveness, and we say innovation is key. In your view, how do the restrictive licences impact innovation and competition in sectors such as technology, agriculture and manufacturing? How will Bill C-244 help to mitigate these effects and impacts? Do you see any concerns?
Mr. Blanar: The Copyright Act and the TPM regime were put in place to help protect creative works and the distribution of those works. At least initially in 2012, the TPM was not intended to protect specific business models outside of that. At the end of the day, the licences that people enter into when they purchase products are contractual obligations that are outside of the scope of the Copyright Act.
In this instance, Bill C-244 would not have any impact on that. This is where in my opening remarks we highlighted that, at the end of the day, this is eliminating one barrier to repair; it is not resolving all the issues. There is a lot of work to be done at other levels, whether it be through other pieces of legislation at the federal department, at the provincial level to perhaps address licences, which would be more of a contractual law issue, and anything to do with providing a positive right.
Senator Loffreda: Thank you.
The Chair: Let me just come at that in a slightly different way. What we’re asking is that companies are not going to say, “There’s no sense inventing the new phone or wheel because they’re going to be able to fix it forever and I won’t be able to talk you into buying a new one”?
Mr. Blanar: No, not at all.
The Chair: Okay, good. That’s clear.
Senator C. Deacon: Thank you to the witnesses for being here. You’ve done a great job of explaining federal law of general application, changes to the Copyright Act remain. The changes that are required are because of unintended applications to what I call the Napster amendments to protect creators and now they’re being used to protect manufacturers from competition.
Could you speak to the changes in Bill C-59 that align with changes to the Copyright Act to make sure that organizations must repair products? Let me put it precisely. To cause a more robust right-to-repair framework, there are specific changes in Bill C-59 that occurred, and they’ve been a big promoter because of the need for robust markets from manufacturers that serve consumers better. They’ve been a very big promoter of right to repair and this bill.
Mr. Blanar: I believe Bill C-59 is an amendment to the Competition Act?
Senator C. Deacon: Yes, that’s correct.
Mr. Blanar: Unfortunately, a colleague of mine would be better placed to speak to those. I’m not personally aware of all the implications of it.
Senator C. Deacon: We might get someone to speak to that specifically.
Mr. Blanar: If you’d like, I can probably ask to get a written answer.
Senator C. Deacon: That would be great and send it to the clerk.
The Chair: Thank you. That would be helpful.
Senator C. Deacon: I think this really gets at the question of Senator Loffreda about the way this helps to drive innovation and the competition that’s needed for innovation.
The Chair: It would be great if you could do that.
Senator Marshall: I understand what the amendment is supposed to do, but I can’t see manufacturers not retaliating. I guess some of the things they could do is not honour guarantees or refuse to fix more complicated problems. Are you familiar with that area? Have you looked at what’s happening in the United States? How are they dealing with that issue? Or maybe manufacturers aren’t retaliating. Can you tell us a little bit about the history of what’s happening in other jurisdictions so we can be prepared for what’s going to happen in Canada?
Mr. Blanar: Hopefully very little will happen in Canada as a result of this particular bill. I am not aware of any specific retaliation occurring in other jurisdictions as a result of repair. The warranties and the contractual issues can arise regardless of this bill; whether or not a TPM is circumvented to facilitate repair or repair doesn’t require that step. It can, under certain circumstances, void a warranty if it isn’t done in a manner that respects the manufacturer’s intentions.
Honestly, it’s difficult to say that this will have much of an impact.
Senator Marshall: I realize this is a private member’s bill, but has the department done any research on the bill as to unintended consequences? Has there been any research done, or do you just accept the bill at face value?
Mr. Blanar: We’ve done some research to ensure compliance with our international obligations. We’ve done some research to look at what is done in other jurisdictions. We have not, at least from my side of the department, seen any unintended consequences from such an exception. I would note that the U.S. has a triennial process with the Librarian of Congress to authorize new exceptions to their TPM regime, and that hasn’t —
Senator Marshall: Thank you.
The Chair: Mr. Laforest, do you have anything to add or that covers it? Okay, great.
[Translation]
Senator Massicotte: Do you agree with the bill? Does that not bother you? It is not perfect and there are several things to be done. However, I understand you are supporting it at this point; is that correct?
Mr. Blanar: Absolutely.
Senator Massicotte: When we look at the choices presented and things that can happen, such as tampering, dealers or sellers will assure us that the bill is not perfect. Is there a solution to this? Is there a section that can be added to the bill that would better manage this aspect while ensuring that these things will not happen?
Mr. Blanar: Not in the context of the Copyright Act. It was mentioned earlier that many stakeholders and manufacturers are concerned that this is opening up some doors and that it is leading to non-compliance with safety or health standards. We have regimes to deal with these issues. Health Canada is responsible for the approval of medical devices. In principle, any repair must meet the same standards. We have already had conversations with Health Canada. If this becomes a problem, Health Canada will have to create regulations applicable to the repair.
Senator Massicotte: Okay. Thank you.
[English]
Senator Yussuff: Thank you, Mr. Blanar, for being here. I have a couple of points. I think you said you’ve done some studies with regard to the Europeans having a much more robust experience in the area of the right to repair. Is there anything that you can share in terms of a downside in their regime that has been in place and what they’ve accomplished?
You also said you could have a much more robust right to repair that needs to go a bit further than Bill C-244. What would those things be that could create a more robust legislative framework to enhance this opportunity that Canadians are looking to have in this country?
Mr. Blanar: With respect to the European Union, I’m not an expert on their regime, so I can’t answer that. I know a little bit more about the U.S. regime.
Senator Yussuff: Okay.
Mr. Blanar: Essentially, the U.S. regime takes an approach with the Library of Congress where they have a triennial process where stakeholders are able to submit evidence of where the TPM regime impacts their ability to create repairs and when the Library of Congress agrees that there is an actually unintended consequence as a result of the TPM regime, they permit that. There have been authorizations in the areas of — if I’m not mistaken — automobiles, cell phones, boats and medical devices. To our knowledge, there have been no negative consequences to that, and we’ve seen states pick up and take it further by actually forcing manufacturers to provide repair parts and repair manuals.
In terms of what could be done to enhance it, I think some of those same initiatives are possible, such as asking manufacturers to be more proactive in what they provide. I know there are efforts being done at the provincial level. Quebec is one example of a jurisdiction that is taking on some of these challenges.
[Translation]
Senator Bellemare: I would like to pursue the same line of questioning, about comparisons with the United States, since that is the country you have studied.
Can you tell us briefly how this bill compares to the U.S. legislation? Do you think the bill will have a real impact?
Mr. Blanar: The U.S. may have taken a slightly more focused approach. They are soliciting bids every three years and doing an impact assessment on a particular sector and type of repair. The bill that we are discussing now takes a slightly different approach. It creates an exception for repair in general. So instead of having to come back every time there is a technological change or a new business model, we are saying that, in the Canadian context, the protection regime should not prevent repair, period.
Senator Bellemare: So there is less bureaucracy than in the U.S., since they have to come back?
Mr. Blanar: Indeed.
Senator Bellemare: Do you think having a bill so broad will be enough to have a real impact on consumers?
Mr. Blanar: Yes, it will be enough because the Copyright Act is a law of general application that governs the market. It will be very difficult to measure, but we believe that there will still be some impact and that there could be more independent repairers.
Senator Bellemare: This remains to be assessed.
Mr. Blanar: Exactly.
Senator Bellemare: Do you think we should add a provision on a future review of the bill or should it be left as such?
Mr. Blanar: The Copyright Act already has a five-year review, and that could be part of that review.
Senator Bellemare: That is a good answer, thank you.
[English]
The Chair: You mentioned that Quebec is doing some things on its own. What are those, and are they separate from the legislation? Our panel had a question the last time around about any jurisdictional issues that you think might arise between provinces and the federal government. Are there any implications there? Could you comment on those two things?
Mr. Blanar: Yes. Quebec passed a law that introduced a number of measures to facilitate repair. The law includes an obligation on manufacturers to ensure that the replacement parts, repair services and information necessary to maintain or repair their goods are available. The law also prohibits the traffic of goods for which obsolescence is planned.
The Chair: You don’t see any jurisdictional issues?
Mr. Blanar: No, especially because this is the Copyright Act. This is purely federal jurisdiction.
The Chair: Right. I agree. I just wanted it on the record. Thank you.
Senator C. Deacon: I want to give you a bunch of assertions, and maybe you can give quick responses to them. This change stops manufacturers from preventing or punishing — by voiding a warranty, for example — the undertaking of qualified diagnosis, maintenance and repair of a device. It stops manufacturers from doing that in future. They’ve done so in order to control the repair revenue streams in the past. The Copyright Act has been used to do that. I really want to get to the mention of health and safety concerns.
Health and safety concerns have never been the responsibility of the Copyright Act. They are the responsibility of whatever department, for example, Transport, Health Canada or somewhere else. I want to clear up a few of those for the benefit of my colleagues and to see if that rings true for you.
Mr. Blanar: To your first point, again, this bill is just amending the TPM provision in the Copyright Act. It doesn’t change things if a manufacturer wants to void a warranty for a breach of contract. They can do it.
Senator C. Deacon: Absolutely, but not for this?
Mr. Blanar: It removes the ability of the manufacturer to sue under the Copyright Act. If they want to cite this as a reason for voiding their warranty, that doesn’t change it, but that would be regardless of this act.
With respect to the health and safety issues, yes, those are the responsibility of others. We already have regulatory regimes to govern the manufacturing of, for example, automobiles, emissions, medical devices. Those regimes continue to apply if a repair occurs. If there are norms that have to be met, then those norms continue to be required regardless of any change to the Copyright Act. If problems arise, then those regimes can be adapted to cover repair as necessary.
Senator C. Deacon: Thank you. Just to be more specific on the change to the Competition Act, I was searching for the term. It is the “refusal to deal” provisions that were amended in the Competition Act in Bill C-59. That really illustrates how this is a foundational change in right-to-repair because they are saying that manufacturers cannot prevent a competitor from having access to the information and tools required for diagnosis, maintenance and repair. Competitors can circumvent TPMs for the purpose diagnosis, maintenance and repair.
This illustrates to colleagues that this is really a foundational change that is enabling a whole lot of improved competition, which will be beneficial to consumers.
The Chair: We are done with the question list. It all went smoothly. Any final comments from Mr. Blanar? Anything we should have our antennae up about?
Mr. Blanar: No, we think this is a good bill, and it does some very positive things.
The Chair: Excellent. Patrick Blanar, Director, Copyright and Trademark Policy Directorate, and Luc Laforest, Senior Policy Analyst at Copyright and Trademark Policy Directorate, we appreciate your time.
We will now have a very brief in camera session, but we will end the formal proceedings. Thank you very much for your time.
(The committee continued in camera.)