Honourable senators, I rise today to speak as the critic of Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair). Bill C-244 is a short but significant piece of legislation as a response to a rapidly evolving digital landscape where the intersection of technology, consumer rights and environmental consciousness has become increasingly prominent, and we need to get it right.

The genesis of Bill C-244 can be traced back to the early 2000s when the right-to-repair movement began to emerge. In 2009, MP Brian Masse proposed right-to-repair legislation, but the legislation did not proceed after automakers agreed to give independent garages access to key software and training needed to repair newer model cars.

In 2019, Ontario MPP Michael Coteau introduced Bill 72 which would have provided the right to repair electronic products, but the bill was defeated at second reading.

In 2021, MP Bryan May introduced Bill C-272, an act to amend the Copyright Act for diagnosis, maintenance or repair. It passed second reading, but then died when the 2021 federal election was called that year.

The bill before us today is not an isolated legislative effort here in Canada but is reflective of a growing global conversation on the right to repair that seeks to recalibrate the balance between consumers and manufacturers in the digital age. It reflects similar initiatives that have been gaining momentum worldwide, responding to a growing awareness of the need for both greater consumer empowerment and environmental responsibility.

In the United States, several states have enacted right-to-repair laws, particularly in the automotive sector. This has not only empowered consumers but has also nurtured a thriving independent repair industry, something that the Senate sponsor of the bill, our colleague Senator Colin Deacon, referenced in his second reading speech.

In the European Union, similar legislation has led to a noticeable increase in the longevity of electronic products. Manufacturers are now required to make spare parts available, facilitating repairs and reducing waste. This may also lead to a growing business opportunity for remote diagnostics which would reduce travel time for technicians in rural areas and allow the correct parts and repair instructions to be used by authorized third-party repair technicians.

Australia has been making progress towards implementing right-to-repair policies as well, particularly focusing on the automotive and agricultural sectors. The Australian government has recognized the need for consumers and independent repairers to have fair access to the information, tools and parts necessary to repair and maintain vehicles and equipment.

Competition is a good thing for the consumer and for the free market system.

Here at home, Quebec passed Bill 29 last October, a bill designed “ . . . to protect consumers from planned obsolescence and to promote the durability, repairability and maintenance of goods.”

Bill C-244 proposes to amend the Copyright Act by updating the definition of “technological protection measure,” known as TPM, and applying it to the software and computer programs embedded within a product. It would allow the circumvention of a TPM for the purpose of diagnosis, maintenance and repair.

As written, the Copyright Act prevents the circumvention of digital TPMs — or digital keys — to repair electronic goods. This change aims to foster what we might call a more equitable and sustainable digital ecosystem. Our current reality often leaves consumers at a disadvantage, bound by respective policies that limit their ability to repair, diagnose or maintain their electronic device.

This not only curtails consumer freedom but also contributes to a culture of disposability, exacerbating the environmental impact of electronic waste. If you cannot repair it, the consumer is left with no option but to dispose of the device and purchase a new one.

The significance of this bill is underscored by precedents such as the notable Nintendo case, which brought to light the restrictive nature of anti-circumvention provisions in our current copyright laws. The Nintendo case in Canada — formerly known as Nintendo of America Inc. v. King — was a pivotal Federal Court decision that significantly influenced Canadian public policy regarding technological protection measures. The case resulted in Nintendo being awarded damages of over $12 million. This substantial award was based on the application of anti‑circumvention provisions within the existing copyright framework. The impact of this decision was far-reaching in terms of how TPMs were viewed and handled in Canadian law.

In June 2019, in the other place during statutory review of the Copyright Act by the Standing Committee on Industry, Science and Technology, the Nintendo decision was specifically mentioned. The committee noted the following:

The Federal Court ultimately provided a large and liberal interpretation of the “digital lock” provisions: so long as a component is effective in controlling access to or controlling use of the work, it is a TPM under the Act. Moreover, the Court determined that even the physical configuration of a work could be a TPM — in this case, the shape of a Nintendo game cartridge, which, in corresponding to the shape of a slot on a Nintendo game console, “operate[s] much like a lock and key.”

The case served as a critical example and was cited as the basis for recommending that the Government of Canada should re‑examine its copyright policies. The committee’s report said the following:

The Committee recognizes that the effective use of TPMs remains important in at least some creative industries and that Canada has international obligations in the matter. However, it agrees that the circumvention of TPMs should be allowed for non-infringing purposes, especially given the fact that the Nintendo case provided such a broad interpretation of TPMs. In other words, while anti‑circumvention rules should support the use of TPMs to enable the remuneration of rights-holders and prevent copyright infringement, they should generally not prevent someone from committing an act otherwise authorized under the Act. The Committee therefore recommends:

. . . That the Government of Canada examine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully-acquired device for non‑infringing purposes.

This recommendation reflected a growing recognition of the need to balance copyright protection with consumer rights and the practical realities of technology use in everyday life.

Similarly, the challenges faced by our agricultural sector, where farmers find themselves unable to repair their own equipment, illustrate the need for reform. Farmers typically rely on original equipment manufacturer, known as OEM, dealers to unlock equipment, provide parts and diagnose and repair issues. This dependence can lead to delays and additional costs as there are often few centralized dealers servicing a large area. The need to wait for OEM services can be critical, especially considering the time-sensitive nature of agricultural work. This limitation has been a significant issue, prompting the need for specific exceptions to circumvent digital locks to allow the repair of software-enabled devices.

The amendments to the Copyright Act contained in Bill C-244 would mean circumventing TPMs would no longer be an infringement when the sole purpose is the diagnosis, maintenance or repair of a product. This means that consumers and independent repair shops could legally repair a product without facing legal repercussions from copyright holders.

As the critic of Bill C-244, I support the bill in principle but hope the questions and concerns that its opponents have raised are examined closely at committee; they were not addressed in the other place, and they do warrant a closer look. Allow me to list a number of these questions and concerns for your consideration.

First of all, there is the question of intellectual property. Manufacturers often argue that right-to-repair laws could compromise their intellectual property. They are concerned about sensitive information like proprietary design and manufacturing details becoming accessible, potentially leading to counterfeiting or intellectual property theft.

Second, regarding safety and liability, there is a concern that allowing consumers or unauthorized repair shops to fix devices could lead to safety issues. Improper repairs might result in devices that are unsafe or fail to meet regulatory standards, and manufacturers worry about being held liable for any accidents or issues arising from such repairs.

Third, concerning quality and performance standards, manufacturers claim that repairs done by unauthorized persons might not meet the quality and performance standards set by the original equipment manufacturer. This could lead to devices that don’t function as intended, have reduced lifespans or no longer meet emissions requirements.

Fourth, there are security concerns. For devices that store or transmit sensitive data, such as smartphones and computers, there is a concern that third-party repairs could introduce security vulnerabilities, potentially leading to data breaches or other security incidents. This is particularly pronounced in the automotive sector. What happens if TPMs of key operational functions are erroneously circumvented on a self-driving car, resulting in a data breach, critical malfunction or physical harm? What protections are in place for both the consumer and the manufacturer?

Fifth, regarding the economic impact on manufacturers, some manufacturers argue that the right to repair could negatively impact their business models, which often include revenue from after-sales services and repairs. There’s also a concern about the potential impact on innovation and investment in new products.

Sixth, on the issue of complexity of modern technology, opponents argue that modern electronic devices are often highly complex and require specialized knowledge and tools for repair. They suggest that without proper training and equipment, repairs might be ineffective or further damage the device.

Seventh, concerning warranty and brand reputation, there’s a worry that repairs done outside the manufacturer’s network could void warranties or lead to a decrease in brand reputation if consumers associate poor repair quality with the original product.

How far can permission to repair or the right to repair go when you don’t own the equipment? I own a fridge and a 16-year-old truck, but if I were a farmer, I would not own my combine-baler; I’d be leasing that. What protections are in place to get my specialized equipment repaired at a low cost with a local technician as soon as possible, rather than waiting several weeks for an OEM repair technician to arrive at my rural farm located hours or days away?

Colleagues, timing of harvest is a delicate dance, juggling weather forecast, labour, available storage, readiness of the product and equipment.

Next, there are regulatory and legal challenges. Implementing right-to-repair legislation is seen as a regulatory challenge, with manufacturers concerned about the potential for a patchwork of laws that vary by region, complicating compliance.

Regarding resource and compliance costs, the requirement to provide repair manuals, parts and tools to the public or third‑party repairers can be seen as a significant resource burden, especially for smaller manufacturers. Complying with these regulations could increase costs, potentially impacting product prices and the thin margins.

And finally, on the issue of trade secrets and competitive edge, there is a concern that making repair information publicly available could inadvertently reveal trade secrets or give competitors insights into proprietary technology and processes.

Colleagues, concerns regarding right-to-repair legislation centre on the potential negative impacts on safety, security, intellectual property, economic viability and the overall integrity of products and services. They underscore the need for a balanced approach that protects consumers, while also safeguarding the interests and responsibilities of manufacturers.

Colleagues, let me be clear. In principle, I support the spirit and intent of Bill C-244. This bill seeks to strengthen consumer rights, foster environmental responsibility and competition and nurture economic growth. It represents a shift toward a more sustainable and equitable future where technology serves the needs of the people, not the other way around. However, it is imperative that it be considered carefully, with a view to identifying and addressing the concerns which have been raised regarding its implementation.

In principle, there are numerous benefits to Bill C-244, including providing autonomy and a legal right to consumers to repair their own products; correcting a power imbalance between the consumer and the manufacturer; discouraging a consumerist, throwaway culture in an era of escalating environmental concerns; and promoting competitiveness and innovation.

It seeks to shift the power from manufacturers to consumers, ensuring that individuals have the freedom and flexibility to fix their own property. This empowerment could lead to significant cost savings for consumers, who will no longer be compelled to replace or pay for costly or inaccessible repairs for the products they own.

By promoting the repair and reuse of products, we significantly reduce electronic waste, one of the planet’s fastest-growing waste streams. The bill aligns with our national environmental goals, fostering a circular economy that values responsible resource utilization and environmental stewardship.

Colleagues, I encourage you to support this bill at second reading so it can be thoughtfully and carefully studied at committee. We need to get this right. Thank you.

Yes.

Thank you for your question, Senator Deacon. In my presentation, while I’m supportive in principle of the bill, there are some sharp edges that we really do have to look at. I haven’t had many come to me to say, “I’m not supportive of this bill.” This is where it’s going. This is where Europe is going. This is where many states in our southern neighbour are going. I think it’s inevitable. What it looks like is not yet inevitable.

I’ve had a lot of organizations, mostly industry associations, come to me and say, “Look, we’re supportive of this.” And I ask these questions, and there are some answers, but I don’t know how applicable they are on the broadest spectrum. It’s a good question. I don’t know. I hope to have them at committee, where we can all pose the questions on what’s wrong with this bill.

You will recall, in your second-reading speech just a short while ago, I said, “This is so good. Who would dare put their hand up and say, ‘Hang on a second’?” They haven’t put their hand up yet in my office, but I’m sure we will see them at committee.

Thank you. I agree with you on that question.