Moved second reading of Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair).

He said: Honourable senators, I rise today to speak as sponsor of a private member’s bill — Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair). It comes to us having received unanimous support from the House of Commons, which is kind of rare these days.

The legislation plays an important role in enabling the implementation of right-to-repair frameworks across the federal, provincial and territorial levels of government in Canada.

Giving Canadians the right to repair their products strengthens their consumer rights. It reduces their costs. It helps to increase competition. It reduces harms to the environment. Specifically, Bill C-244 amends the Copyright Act to allow a person to circumvent a technological protection measure, or a TPM — I didn’t know about this either before now, so hang in there with me — but only when the purpose is solely to diagnose, maintain or repair a product.

A TPM is also known as a digital lock because it prevents, for example, a repair technician from accessing software code, consequently preventing them from repairing a product.

My hope is that by the end of my speech you’ll appreciate why this private member’s bill was unanimously supported in the House of Commons.

Before I get into the substance of the bill and its regulatory implications, I’d like to step back and speak about right to repair more generally and how it promises to help Canadians and small businesses in every corner of the country. I’ll then speak about the bill itself and why it’s central to making progress on right to repair.

Last, I’ll wrap up my comments by positioning the bill relative to another piece of legislation on our Order Paper, Bill C-294.

What is right to repair and why does it matter? Let me start with a personal example.

In 2019, we bought a new dishwasher. We gambled and lost because we bought the cheapest version of a supposedly respected brand, but we did not buy the extended warranty. It broke two years later. I happen to live in an area with a well‑respected repairman who, at no cost, politely listened to what I thought the problem was. When I finished, he asked a couple more questions. He said, “Well, it’s the pump. It’s the thing that goes first on that model. If you prefer, I can come over and diagnose it in person and charge $150 plus HST for the same answer I’m giving you now.”

He went on to say, “If you choose to fix it, with parts, service and HST, it is probably going to cost you about $600. For the same price,” he said, “you can buy a brand new dishwasher, but this time get the extended warranty.” Then he said, “When it breaks, call me.” He’ll fix it for no charge.

He’s not happy with the fact that the appliances at all price points are so poorly made and that the manufacturers’ overpriced components are taking about half of his total sales. He’s not happy about that, but at least he has found a way to make sure the community he serves knows that he’s not the one who’s ripping them off. Most importantly, it’s outrageous that he is so confidently predicting that the new appliance will almost certainly fail within five years.

Yes, we took his advice. We bought a new dishwasher. Yes, we got the extended warranty and then carried the one with the broken pump out to the end of the road, destined for the landfill. Needless to say, I wasn’t happy.

This concept where products are intentionally designed to have a limited lifespan is known as “planned obsolescence.” Consumer rights groups have and do push back in the most egregious of cases, but they need the help of legislators. In many jurisdictions, this help is well under way, and the balance of power is finally shifting away from global manufacturers and back to consumers.

When our dishwasher failed, I couldn’t help but think back to my parents’ purchase of a matching set of appliances. It was 1972. Most of you can probably guess the colour of those appliances — yes, avocado green, the pinnacle of fashion.

Despite their colour, these appliances were used continuously by four different households requiring only minimal repairs until they were finally retired in 2007. They delivered 35 years of reliable service. It still wasn’t long enough for avocado green to come back into fashion.

Today, poor quality and planned obsolescence have become the expected norm. From a selfish, business perspective it makes sense. Why would a manufacturer make one sale every 35 years when they can make a sale every 5 or less? Why would they empower others to maintain and repair their product without ensuring that they can maximize their share of repair costs through licensing fees, specialized tools and expensive components?

If you listen to podcasts, I recommend that you listen to CBC’s “What On Earth” with Laura Lynch, specifically the episode from November 1, 2023, called, “Let’s talk about all your broken stuff.” In this episode, she cites countless examples of products that are seemingly designed to become quickly obsolete. When you consider all of the energy, effort and environmental costs involved in extracting and refining raw materials, designing and manufacturing a product and then transporting it around the globe, it’s entirely unsustainable and unacceptable for our homes to simply be a pit stop for that product as it travels from the other side of the globe to our local landfill.

Money and carbon are being burned for a steadily diminishing return because designed obsolescence is so easily and invisibly achieved. For example, when the magnet required to ensure a tight seal on an expensive refrigerator door is not designed to be replaced, an otherwise excellent refrigerator is sent to the landfill. When a specialized battery is glued into a device, making it impossible to swap out and replace with a standard battery, it, too, ends up in the landfill. Suddenly, regardless of the price point, too many of our consumer products are becoming garbage.

I was thrilled when I heard CBC’s “What On Earth” actually reference Bill C-244 as an example of important progress on the path toward extending the reliability and lifespan of consumer products. The show’s host referenced the fact that virtually every product today is a smart product because it is controlled by some form of computer chip. This chip contains software, and, under our current copyright law, manufacturers use technological protection measures, or TPMs — or digital locks — to prevent third parties from accessing their software code, even when the reason is to diagnose and repair the product.

Allow me, again, to provide another personal example — I’m filled with them on this: Last winter, the check engine light came on in our car. I called our local garage in rural Nova Scotia. The mechanic said he couldn’t count on being able to fully access the car’s computer, so he told me that I should go down to the dealership. I phoned, made an appointment and drove an hour into Halifax. When I arrived, I waited an hour and was asked to pay $100. Why? It’s because the gas cap was not entirely sealed, which set off the sensor in the gas tank, triggering the check engine light. Needless to say, my hour-long drive home was powered by frustration.

I had just wasted over three hours and $100 because the vehicle manufacturer doesn’t allow others to fully access the car’s software for the purposes of maintenance, diagnosis and repair — or, in this case, the simple insight that their gas cap needs to be tightened another half turn.

Automotive industry manufacturers point to an existing agreement with the aftermarket repair industry called the Canadian Automotive Service Information Standard, or CASIS. This voluntary agreement allows, in principle, for:

. . . auto manufacturers to share service and repair information with the automotive aftermarket industry on a level equivalent to information available to authorized dealerships.

This sounds as if it achieves the right to repair without having to amend the Copyright Act. However, the CASIS agreement hasn’t been updated since 2009 and has no enforcement mechanism, and compliance is not mandatory.

A car uses software for just about anything and everything today, unlike in 2009, meaning that a TPM can legally block something as simple as a tail light repair. This agreement is no longer fit for purpose.

Colleagues, for much of the last century, music was distributed as a physical or tangible product — as a record, a tape or a CD. However, as digital distribution became increasingly common, the Copyright Act was amended to protect the rights of creators, particularly songwriters and musicians. This could be seen as a natural extension of existing copyright laws for tangible assets, such as books and pieces of art.

However, these TPMs have become invasive and are a manifestation of scope creep. They now effectively block consumers from having access to or control over the digital trail that they create when using products, and prevent third party technicians from providing maintenance and repair services to the rightful product owner.

Clearly, some manufacturers, with the help of their clever lawyers — those dastardly clever lawyers — have sought to discourage the right to repair, with too many prioritizing short‑‑term commercial interests. Whatever the reason, increasingly, the Copyright Act is being used to block the role of independent repair service providers by threatening those service providers with copyright infringement penalties, or threatening the consumer with voiding their warranty. This has the effect of reducing competition in the market to the detriment of consumers.

Allow me to recap: So far, we have reviewed the right to repair generally, and how the unintended use of copyright laws limits competition and increases consumerism to the detriment of quality over quantity, reaping harm on our wallets and the environment.

My hope is that you will see why Bill C-244 is a crucial starting point in the drive to securing consumer access to competitive and affordable repair services and an aftermarket.

The lack of the right to repair impacts farmers, mechanics, technicians, construction workers, electronic repair shops, artisans and all sorts of small business owners — not just consumers. Given this context, it’s not surprising that Bill C-244 was unanimously approved in the House of Commons at third reading, after seven committee meetings where MPs heard from close to 30 industry, government and expert witnesses.

Additionally, this bill aligns with Budget 2023’s announcement that the government will work to implement a right to repair, with the aim of introducing a targeted framework for home appliances and electronics this year — in 2024.

The government has also committed — in Budget 2023 — to launch consultations, including on the right to repair and the interoperability of farm equipment, and to work closely with the provinces and territories to advance its implementation.

Bill C-244 helps to fulfill a government priority and, therefore, is supported by the government and by Innovation, Science and Economic Development Canada, in addition to all the other parties in the House of Commons.

The fact that Bill C-244 is industry agnostic is the primary reason why I think it has secured so much support in the House. Previous bills have attempted to use an industry-centric approach with limited success. For instance, in the past, Bill C-273 — introduced in 2009 — sought to enable a mandated right to repair for motor vehicles only. Bill C-273 failed in the House.

A similar bill — Bill C-231 — was introduced in this Parliament by the same sponsor, MP Brian Masse. His bill relates to amendments to the Competition Act, which — as we have just heard — are now being incorporated as part of the announcements in the Fall Economic Statement. He views his bill and the amendments to the Competition Act as complementary to Bill C-244.

The key to why Bill C-244 earned unanimous support in the House is that it avoided the possible litany of carve-outs, which could have defeated the general-purpose intent of the bill.

Now let’s focus on Bill C-244 and its implications. Bill C-244 introduces amendments to the Copyright Act, which, as you know, is an important marketplace framework law of general application designed to foster and protect cultural and economic creativity and innovation.

We’ve discussed why amendments are needed: It’s specifically to allow for the circumvention of digital locks which are coded into a product’s software — but only if the circumvention is solely for the purpose of diagnosis, maintenance or repair of a product in which the software is embedded.

These amendments will also allow for the legal manufacturing, importation, distribution, sale, renting and provision of technologies, devices and components if they are used for the diagnosis, maintenance and repair of products. Many maintenance people have to use specific software connections and small computers to connect to products in order to service them. There are a lot of individual tools needed to be successful in maintaining products today.

As an amendment to the law of general application, it is not designed to address sector-specific concerns, nor does it deal with safety, cybersecurity or environmental matters. The changes proposed in Bill C-244 are, by design, neutral and would not harm the principle or effectiveness of the Copyright Act.

Importantly, this bill does not supersede existing regulations related to specific classes of products. Those regulations remain unaffected, whether they exist for safety, design, the environment or other purposes.

For this reason, it’s preferable that stakeholder concerns and suggested carve-outs be addressed within the existing legislative and regulatory regimes that are specifically designed to regulate those classes of products, as is now done with medical devices and vehicles.

A specific example relates to medical devices that are regulated under Health Canada. A long-standing regulatory gap exists as it relates to uncertified third party repair shops. Bill C-244 has exposed the existence of various regulatory gaps, but specifically this one, which requires action on the part of Health Canada to address this. To be clear, this bill does not impact existing regulatory safeguards, and all evidence suggests that it will force those who are responsible for those safeguards to increasingly strengthen them.

Some stakeholders have raised concerns specifically related to software piracy. Importantly, Bill C-244 only allows the circumvention of technological protection measures, or TPMs, for the legal access of content. Piracy remains illegal. Specifically, Bill C-244 does not allow the copying or sharing of copyright-protected content if that access infringes copyright law. This measure is in clause 2, subsection 3 of the bill.

This is a concern raised by the video game manufacturers who are affected by the integrity, security and privacy risks in their marketplace.

In 2017, the Canadian Federal Court awarded Nintendo $12.76 million in damages for copyright infringement under the Copyright Act, demonstrating the enforceability of the law. I want to underline that the changes proposed in Bill C-244 do not undermine enforceability of the Copyright Act, but there is a concern that there is an increased burden of proof and therefore increased litigation costs and that may be worth exploring during the study of the bill.

In the House study at the Industry and Technology Committee, or INDU, there were other amendments made to clause 2 of the bill to further strengthen the right-to-repair provisions and also to ensure compliance with the Canada-United States-Mexico Agreement, or CUSMA. I will speak on two of those consequential amendments to the original drafting of Bill C-244.

First, an amendment was made to ensure that TPM circumvention for right to repair would apply to sound recording or performance if a specific sound was part of a TPM. I don’t know how many of you own dishwashers, microwaves or washing machines that make certain beeps, sounds or melodies. You will be interested to know that if the part of the device that sound is connected with breaks, like a button, you’ll end up having to have that serviced because it’s protected by a TPM. Just for the purposes of making it more difficult, I think, for affordable service to occur.

This amendment empowers consumers and repair technicians to circumvent a copyrighted sound in order to fix a damaged part of the machine. I don’t think any of us view that sound as being a bonus at all, and that’s one of the things that shows how the TPMs have been used against consumers.

I don’t know about you, but I was astonished just to think about the legal convolution that has gone on — that a law to protect singers and songwriters is now being used in a way to protect manufacturers and increase the revenue to be secured. Talk about an anti-competitive practice.

Another amendment passed at the INDU committee ensured that Bill C-244 complies with CUSMA and the risk that applying the repair exemption to the device circumvention prohibition could be potentially causing further trade disputes under CUSMA. This is because the trade agreement does not permit any new exemptions for manufacturing of technology intended to circumvent a TPM. 

To put it simply, while the bill will enable anyone to access service that would allow a TPM to be circumvented for the purpose of maintenance or repair, it does not allow anyone to manufacture that device specifically designed to circumvent a TPM even for the purpose of repair. Innovation, Science and Economic Development Canada officials have confirmed that this amendment would be consistent with the U.S. federal copyright framework for right to repair, therefore enabling Bill C-244 to comply with CUSMA.

Lastly, I want to briefly position Bill C-244 relative to a related bill on our Order Paper, Bill C-294, sponsored by Senator Housakos.

Clearly, the right to repair is about the Canadian consumer fighting back. This issue is supported by all parties with a growing number of Canadians supporting the right-to-repair legislation. Indeed, there is an accompanying bill currently on the Order Paper that works in conjunction with Bill C-244. Bill C-294, An Act to amend the Copyright Act (interoperability) also passed unanimously in the House and serves a complementary purpose, which I look forward to diving into as well following a colleague’s speech on this matter.

There are already certain limited instances where circumventing TPMs will not infringe copyright, including circumvention for the purposes of software interoperability, encryption research, network security and for unlocking a wireless device. Bill C-294 will broaden that exemption to allow a person in certain instances to circumvent a TPM to make a computer program or a device in which it is embedded interoperable with another computer program, device or component. This entirely supports the principle of a consumer’s right to repair, and particularly is very important as it relates to farming equipment.

Both are also crucial to the concept of a circular economy where the whole value chain of a product is considered and is aimed toward reducing greenhouse gas emissions and other excessive wastes through repairing, reusing and recycling.

These bills are part of a much broader global effort. Europe began legislating in this area with directives being devised in the 2010s and member nations creating their right-to-repair frameworks. The U.K. introduced right-to-repair law that went into effect in July 2021. There are currently 18 U.S. states that have implemented their own right-to-repair legislation.

Some provinces like Quebec are moving ahead with legislation such as Bill 29, An Act to protect consumers from planned obsolescence and to promote the durability, repairability and maintenance of goods, and that passed last month. Bill 29 goes even further for consumers’ right to repair by prohibiting planned obsolescence and ensuring that merchants and manufacturers always make the parts needed to repair and service a product to be available to consumers under warranty agreements. It is a first of its kind on the continent.

Before I close, colleagues, I have an admission to make. I have a very dominant Scottish gene. There are times when my family has described it as a genetic defect. I have to admit that I don’t like to throw anything away. Leftovers are my favourite meal. Repairing rather than replacing brings me considerable joy. My noise-cancelling headphones were repaired using electrical tape. The slippers I wear at home are only 20 years old, and I consider them new. I purchased some of the ties that I wear in the Senate back in the eighties.

To be clear, I prefer to be described as frugal rather than cheap, and I thank my parents who came of age in the Depression for that attribute. I consider it a pretty important characteristic that we need to have more of during this current cost-of-living crisis that is making life incredibly difficult for so many Canadians.

Bill C-244 is made for the times. It will help to reduce the cost of living of Canadians by making it easier and more affordable to repair essential products. It helps to drive competition and productivity into our economy, enabling more to be done for less. It limits the plague of repairable products being sent to the landfill and all of the increased harm and waste that is caused. But even more importantly, it makes it less profitable for companies to import lower-quality products into Canada and simply sell overpriced replacement parts or — worse still — limit the ability of their products to be repaired at all.

I much prefer to see higher-quality products that use standardized replacement and aftermarket parts, maximizing the amount of money we keep in our economy and allowing Canadians — no matter where they live — to affordably repair their products, allowing for many more years of continuous and reliable use even if those products and appliances are avocado green.

Bill C-244 is an important example of the urgent need to modernize our legislation and regulations in the face of accelerating change in the digital economy. Too many of our laws and regulations intended for a specific purpose have become outdated and are now harmful and having unintended negative impacts. We need to be smarter about how we devise legislation so that it is either future-proofed or offers an agile mechanism to adjust to technological change.

It’s important to move ahead with this bill, which is complementary to Bill C-294, so we can begin to modernize the Copyright Act to align with the realities of the digital and data era. Creating a federal framework with these two bills will spearhead action from our provinces and territories and deliver benefits to consumers across Canada.

I just want to mention that a lot of this aligns with work that we did in the Banking Committee last spring and talking with this same sort of effort.

For these and other reasons, this bill garnered unanimous support in the House. I would like to thank my colleagues in the House, especially MP Bryan May, who first introduced a version of this bill in the previous Parliament in February 2021, and the sponsor who shepherded this bill through the House in this Parliament, MP Wilson Miao. I also want to thank members of the House of Commons Standing Committee on Industry and Technology for prioritizing the study of this bill and investing the time necessary to improve its content.

Colleagues, the Copyright Act is a law of general purpose, and this bill makes important changes that will enable the right-to-repair framework to be created at federal, provincial and territorial levels, benefiting consumers and the environment. It is universally supported and will bring meaningful changes to Canadians.

Thanks, colleagues.

Absolutely.

Thank you for your question because it’s really important. This is one of many things that we have to do. This is a foundation. This is a whole-of-the-economy approach. By amending the Copyright Act, we now make it illegal to prevent independent repair shops from doing the job that is done by manufacturers. They can’t use TPMs as a way to block repair. That’s a really good start.

But Bill C-294 is another element to enable interoperability between different products and different manufacturers. There is going to be a lot of effort needed in order for us to turn the tide on where we find ourselves in an economy where, as they say, all the manufacturing, resource extraction and everything goes on, and then something is shipped across the world, and our house is just a pit stop. It’s just craziness where we’re at right now.

This is one of many, many efforts. I wouldn’t rule out anything else, but what I like about what this does is that it makes competition more robust, and I believe in competition. I believe competition is how we get better. Those who are more expensive and have less durable products will now do worse in this environment. To me, that’s structurally really important. Where we get to on other measures, I wouldn’t rule anything out. I hope that helps.

A lot of entrenched interests struggle with this bill. When I speak to them about it, so far I’ve been very direct. I just say that I’m looking for observations versus amendments — if there is anything.

There are game manufacturers, for example, who say that this is going to make piracy easier. If it’s going to make it easier, it may be harder for them — as I said in my speech — to investigate and enforce the law to protect their copyrighted assets. However, the reality is that if you start making one exemption, they are just going to come in a groundswell.

There are others, like auto manufacturers. They say that they’re already doing it through the Canadian Automotive Service Information Standards, or CASIS. They say they’re already allowing access. Well, the access is not mandatory and not complete, and it hasn’t been updated in 15 pretty crucial years in our digital economy. There are a number of groups saying they have got real problems. We should always hear from the dissenting interests, but I think their issues can be managed.

I believe I mentioned another one in the speech — medical devices. It has exposed a challenge that there are unregulated, uncertified medical device repair shops. There are repair personnel in the country. Well, that shouldn’t exist. There needs to be a health regulation change. The reality is that a number of things have to happen in other areas of government in order to ensure that there are no unintended consequences from this action.

As a rule, nobody is against right to repair. They are rightly protecting their current interests, and we can find ways to work through that.

That is a really important question. I would offer that there are other provisions. For example, if you tinker with the environmental control systems in a car, the car will not be living up to the standards that are required by law. There are different ways in which a vehicle or a piece of equipment can be tinkered with. Eventually, we will have to change a number of different elements.

Equipment manufacturers and equipment renters will have to change the contract they have with those they rent equipment to in order to ensure they don’t tinker with a product. But it’s the same as we would have in any other area. We have to make sure that our safety, environmental and other laws and regulations in other areas of government are going to be enforced.

The challenge with where we’re at today is that when you don’t allow somebody other than just that one group — the registered dealer — to make a repair where others can be trained to deliver it more cost-efficiently and be certified to deliver safe, secure, responsible technical repair, the lack of competition means they can charge whatever price they want. It means you have to do your oil change at a much higher price than you could at a competing shop that is much more convenient. Certainly in my situation, convenience is important because it’s an hour to get somewhere.

Therefore, I just offer that, in my mind, each one of these things could be managed very carefully and very easily, but we have to stop the use of TPMs for purposes that are harmful to consumers.

Yes.

Again, Senator Wells, this is a really important point. It will probably change how a leasing agreement is done by an equipment-leasing company, where they don’t allow you — you have got to certify that you are not going to do any repairs that are not from a certified technician. That would be the case today. The reality is that when a piece of equipment goes out, there may be a TPM in place, but on other elements of the equipment, they could be making changes.

What we have to look at is that, yes, there are ways in which other contracts have to change. If a company can provide technical service to the equipment they are leasing at an affordable rate relative to somebody else who’s saying that it has to be at this rate, the more affordable company will grow. Right now, what we’re not allowing is competition to occur in any way, shape or form. For me, that’s the key issue. This opens up the opportunity for competition in various marketplaces. Speak to farmers about what they have to deal with as it relates to the digital elements of their equipment, the lack of interoperability and the increased costs that come with that — and the fact that they can’t integrate effective, aftermarket components to replace a broken component. It can be done — and done safely — but they are just not allowed to do it right now.

The market and leasers will adjust with time in terms of how they deal with things, but we have to put this framework solution in place to enable competition to come along — and to allow the market to adjust to that competition.

Senator Plett, thank you. I obviously was not clear.

No. Warranties will still be voided if uncertified, unqualified changes occur. I have no doubt about that. The key is that certified technicians could now come from organizations other than just the original equipment manufacturer. That’s the important element that allows competition to emerge.

This is the point made by the heavy equipment leasing companies, and it’s a really important one: What if they lease a piece of equipment for six months, and the person they lease or rent it to then makes changes? Then they get the equipment back, and a change has been made that has made it less safe or doesn’t fulfill environmental responsibilities, and then they take that on. That’s where they are going to need to have a very clear liability resting with the person they lease it to, saying, “If you make these sorts of changes, you are liable for them, not the leasing company.”

Thank you very much. That was well clarified.

Certainly, thank you.

Thank you for the question, senator. Number one, this does comply with the Canada-United States-Mexico Agreement, or CUSMA. That’s a key element. It doesn’t interrupt our trading agreement in any way.

What it does do is open the door for more competition, and that’s a priority in the United States, and is becoming a priority in Canada. The competition may come from the United States or it may come from Canada, but it loosens the lock that original equipment manufacturers have on their products and the control over consumers’ ability to maintain that product over time. Releasing that hold on consumers and freeing up others to start to make repairs in a qualified, competitive environment only benefits consumers, and it forces greater competition amongst the manufacturers to make better products that last longer and are more easily repairable.

If there are going to be experts that should be questioned in committee, they should look at that issue and say, “Where is there a potential risk with CUSMA?” We have been assured by Innovation, Science and Economic Development Canada, or ISED, and certainly by reading the testimony of the House of Commons Standing Committee on Industry and Technology, that’s not an issue.

Thank you.