Copyright Act
Bill to Amend--Third Reading--Debate Adjourned
October 29, 2024
Moved third 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) or, in other words, the “right to repair” bill.
This is one of two bills that amend the Copyright Act that are currently under consideration at third reading in the Senate. The other is Bill C-294, An Act to amend the Copyright Act (interoperability), which Senator Housakos spoke to last Thursday as sponsor.
They both relate to technological protection measures, or TPMs, or what’s often called “digital locks” that companies use to prevent third parties from accessing software that would enable them to choose to connect to their appliance, farm equipment or automobile with another related device that they own in the case of Bill C-294 or to diagnose, maintain or repair any devices that they own in the case of Bill C-24.
As stated by a representative from the Copyright and Trademark Policy Directorate at Innovation, Science and Economic Development Canada, or ISED, when answering a question in committee, “These two bills complement each other very well” and go “to the same spirit.”
You will hear me speak to Bill C-294 as a very friendly critic later today, but I will focus the remainder of this speech on Bill C-244.
Back in February, I spoke to you at length at second reading about the purpose of this bill and the crucial importance of enabling a “right to repair” framework in this country.
In that speech, I underlined the intended policy objectives of this legislation, the importance of it to our economy and environment and the broad consensus it achieves, even among MPs in today’s divided Parliament. After four panels of testimony at the Standing Senate Committee on Banking, Commerce and the Economy earlier this fall, I believe my colleagues on the Banking Committee feel the same way.
A right to repair framework has long been called for and has already moved ahead in multiple jurisdictions worldwide. Provincially, Quebec has also advanced legislation to this effect, in particular relating to planned obsolescence.
Right to repair responds to several consumer and small business gripes where far too often it is more cost-effective to buy a new product than repair an existing one, primarily due to the unintended use of the Copyright Act. Consequently, Canadians end up paying more for products and use them for shorter periods of time.
In a study by Équiterre, 91% of Canadians surveyed have purchased an appliance or electronic device in the last two years, and within those two years, 63% of respondents said that the appliance or device broke and yet only 19% had it repaired. The results are increased profits of global manufacturers, higher costs to Canadian consumers, increased greenhouse gases and more garbage in our landfills.
Colleagues, the purpose of the Copyright Act, according to Canadian Intellectual Property Office of ISED, is as follows:
. . . to further the public interest by promoting the creation and dissemination of works of the arts and intellect, and to allow creators a just reward for their creations.
It is a law of general application.
Over two decades ago, as the online distribution of music was replacing our beloved compact discs, cassette tapes and vinyl, the concept of a technology protection measure, or TPM, was devised, and an amendment to the Copyright Act was passed to prevent the distribution of creative works without fair compensation to artists via programs like Napster. This made sense.
However, since then, virtually all appliances and machines have become more and more embedded with digital technology. Clever lawyers have co-opted TPMs to protect anything they could think of that had software in it.
An ISED official stated the following to the Banking Committee:
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.
The consequences have been dire. 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.
I spoke at length about this in my second reading speech. It was the avocado-green appliance speech if you remember. Those would still be working, I think.
I would simply like to address here some of the main assertions and concerns that were expressed during study in committee.
First, let me be clear that this bill only provides an exception to circumventing the Copyright Act for the purposes of repair, diagnosis and maintenance. It does not alter the intellectual property protections, including copyright protections and warranty agreements. This was made abundantly clear by various testimonies. It’s still illegal to break copyright law.
Second, yes, certain industries will benefit more than others. It is no surprise that large automobile companies, dealerships or farming equipment producers stand to lose their monopoly power as a result of this amendment.
They have benefited from unintended protections which have cemented their profits for years and will have to adjust to the realities of more competitive markets. Personally, I find that heartwarming.
Third, it is crucial to maintain an industry-agnostic bill. Many industry groups have advocated for carve-outs, which in the past have been hurdles to any form of changes in this regard. The Copyright Act is a law of general application and applies federally. A harmonious federal level change in this regard will help prevent a patchwork of exceptions and enable consistent guidance for provincial jurisdictions to work within.
Fourth, it was made clear that these changes to the Copyright Act are highly unlikely to cause issues under any existing trade agreements, notably under the Canada-United States-Mexico Agreement, or CUSMA. To date, there have been no specific retaliations occurring in other jurisdictions as a result of right to repair, and indeed, dozens of U.S. states have some form of right‑to-repair legislation in the books, as do European countries.
Issues related to warranties and contracts can arise regardless of the changes in Bill C-244 and whether or not a technological protection measure, or TPM, is circumvented to facilitate repair. An amendment at the House Committee on Industry and Technology also addressed any potential issues in this regard.
Fifth, numerous advocacy groups representing medical devices, various industries, video games — among others — expressed concern that removing TPM protections under the Copyright Act would decrease the quality and safety of products. Colleagues, federal regulators should not be using copyright law as a crutch for a lack of proactive regulations to protect Canadian citizens. They should be constantly updating their regulations to manage consumer and environmental risks. Specifically, this bill does not supersede existing regulations related to specific classes of products. Those regulations remain unaffected whether they exist for safety, health, design, the environment or other purposes.
Let me provide you with an example. In committee, a representative of the Global Automakers of Canada made the following statement:
Having a blanket opening under the guise of right to repair or diagnosis will allow more bad actors to, potentially, access that software, bypass it and make it easier to steal a vehicle . . . .
This same witness also said to me, when meeting in my office, that the changes proposed in Bill C-244 create risks that will accelerate Canada’s globally leading levels of car theft. This is an outrageous claim. The only ones currently circumventing TPMs in Canada are car thieves. That’s how they are stealing cars out of a driveway in 30 seconds. So criminals are benefiting from the fact that global automobile manufacturers are relying on TPMs to stop your car from being stolen despite blatant evidence that it’s an utterly failed strategy.
British regulators are not listening to these sorts of outrageous claims. CBC’s “Marketplace” recently compared features on cars sold in the U.K. with the same models being sold in Canada. Interestingly, 6 of the top 10 on the list of stolen vehicle models in Canada are sold in the U.K., but they are not stolen there. “Marketplace” found that additional security features that are only available in the U.K., not in Canada, made for the exact same models, make them harder to steal. Seriously, they are the same manufacturers and the same models. These global car manufacturers are choosing to not include effective security measures in Canada, harming Canadian consumers and the Canadian economy and unnecessarily putting consumers and police at risk. Stuff like this just makes my blood boil.
Thank you to CBC’s “Marketplace” for uncovering this story. I absolutely encourage you to keep an eye on CBC’s “Marketplace,” not just last week’s program but every week’s. They have really intriguing stories about areas where consumers are just not getting a fair shake.
Now, that’s not to say there are not legitimate concerns. The video game industry, for example, arguably does produce creative work in software format and is especially vulnerable to piracy. While the changes in Bill C-244 do not change the fact that piracy is illegal, it may increase the burden of proof during litigation and the need for them to innovate so that they can identify better protection measures and mechanisms in the future.
Through a brief submitted to the Banking Committee and my meetings with Medtech Canada, it was made clear that regulatory gaps related to third-party medical device service providers would also need to be addressed. Indeed, regulatory entities responsible for medical devices must update their regulations and, without a doubt, should no longer rely on the Copyright Act as a way to protect medical safety. Specifically, the changes in C-244 lay bare deficiencies in our regulatory system that should be addressed by the appropriate bodies. Health Canada should consider broadening the scope of their existing regulatory framework to include oversight over all independent third-party medical device service providers.
Colleagues, as I’ve said before, the lack of the right to repair impacts farmers, mechanics, technicians, construction workers, electronic repair shops, artisans and all sorts of small business owners. Bill C-244 helps to fulfill a government priority and, therefore, is supported by the government and by Innovation, Science and Economic Development Canada, or ISED.
This is just one piece of the puzzle for a right-to-repair regime in Canada. As an ISED official stated during our Committee on Banking, Commerce and the Economy hearings, the bill:
. . . . 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.
These amendments to the Copyright Act are important steps forward in aligning with the realities of the digital and data era. Along with amendments to the Competition Act put forward in Bill C-59, a federal right-to-repair framework is developing in this country and will allow federal, provincial and territorial regulators to move forward with much-needed changes and safety measures to the benefit of Canadians.
I encourage us to call the question on this bill at the earliest possible opportunity. Parliament is in a tenuous position, and these bills and those similar to them have not made it through in past Parliaments. I encourage you, colleagues, to move these two bills along as quickly as possible. Doing so is very much to the benefit of Canadians.
Thank you, colleagues.
Honourable senators, I rise today to speak at third reading of Bill C-244, an Act to amend the Copyright Act (diagnosis, maintenance and repair). I am critic for the bill.
I want to thank the members of the Banking Committee for their work on the bill and all those who have an interest in and contributed to where we are on this today.
When I spoke at second reading, I noted that, in principle, I supported the bill and that it was in harmony with the global effort in support of the right to repair in the United States, Europe, Australia and elsewhere. It is also in harmony with other legislation in Canada, including sister bill, Bill C-294, which addresses the interoperability of parts issue that frustrates our farmers and which the Banking Committee studied concurrently with C-244, Bill 29 in Quebec, Bill 187 in Ontario and prospective legislation in other provinces.
Indeed, the Banking Committee heard from witnesses that that Bill C-244 was a piece of the legislative puzzle needed to address the issue before us, which I do not think is planned obsolescence, although that is surely the source of the issue. I’ll get to that.
At second reading, I raised several questions and issues that I thought needed addressing by the committee that were not properly attended to in the other place that worried the bill’s opponents. Those concerns included questions around the infringement of intellectual property rights, which gave rise to technological protection measures — known as TPMs — to begin with; safety and liability issues if repairs were not done properly by unauthorized shops; the need to meet quality and performance standards, like emission requirements; security concerns for devices, such as smartphones and computers, that store or transmit sensitive data, the worry being that third-party repairs could lead to data breaches; the argument of some manufacturers that the right to repair could negatively impact their business models, which may include revenue from after-sales service and repairs; the issue of complexity of modern technology, that modern electronic devices are often highly complex and require specialized knowledge and tools for repair and without proper training and equipment, repairs might be ineffective or further damage the device; and concerns 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. A few of these are more or less the same issue. The safety and liability issue, the need to meet performance standards, the specialized knowledge and the void warranty issue are just elements of this proposition: “Only we can do this properly, and if you don’t allow us to do it, all heck will break loose.”
I changed that mid-sentence.
I was happy to see that the committee did give these issues a fair hearing during its study of the bill. From the hearings, I was not particularly convinced by the arguments of the opponents of Bill C-244 who were seeking amendments to the bill.
Lucas Malinowski of Global Automakers of Canada worried about the impact of the bill on emissions and safety requirements and asked the committee to create an exemption for vehicles. He said:
Barring that, we would ask the committee to amend Bill C-244 to include a review mechanism, much like the triennial rule-making process in the U.S., and, as a bare minimum, we would ask that the committee provide an observation for the need to ensure the government addresses the potential impacts of these amendments to the Copyright Act on vehicle safety, emissions and privacy systems.
Others argued that the committee should understand that their particular industry was the exception and that an amendment addressing their “unique and specific” concerns should be made to the bill.
Craig Drury of Vermeer Canada and the Associated Equipment Distributors argued that his organization:
. . . [does] not support unrestricted access to critical software that governs environmental and safety protections . . . . Allowing access to this software could have dangerous consequences. It could undermine emissions controls, and it could disable safety features that protect both operators and the public. Unqualified individuals attempting repairs on sophisticated machinery could put themselves and others at risk.
He continued:
Other legislatures around North America have looked at this carefully and exempted heavy equipment. We are very different from everyday consumer products like phones and fridges. New York, California, Oregon and Minnesota have exempted off-road equipment.
Finally, he said:
Parliament and this committee need to slow down and get this right. An amendment at this committee stage should be introduced to send a clear message to provinces: Exempting off-road vehicles will keep workers, communities and the environment protected.
Similarly, Christina De Toni of the Entertainment Software Association of Canada, known as ESAC, contended:
. . . Bill C-244 could create a scenario where the piracy, illegal downloading and sale of video games increase in Canada, expose the industry to content theft, undermine player privacy and allow bad actors to modify consoles all under the guise of repair.
She continued:
We at ESAC believe federal legislation cannot be a one‑size-fits-all approach, and we recommend game consoles, components and peripherals must be excluded from this bill.
The witnesses received robust questioning by colleagues on the committee, and it led me to the conclusion that perhaps some of their concerns were overblown, given that there are warranty provisions that might give consumers and repair people pause. In fact, in most cases, in order to do the technical and often complicated work required, they are professionals who are licensed and Red Sealed. They have as much of an interest in seeing that the products work properly and are in conformance with regulations as do the manufacturers. Of course, there are nefarious characters out there with nefarious aims, but that is why we have laws.
That said, we shouldn’t minimize the concerns of some of the witnesses. I am not persuaded by the testimony of the sponsor of the bill, MP Wilson Miao, that we should not worry because future legislation will take care of some of these caveats. That is far from reassuring. But the whole discussion reminds me of something I said when I spoke to Bill S-269 concerning advertising in sports betting.
I said then that we had fallen victim in legalizing sports betting to the law of unintended consequences, which states that the actions of people and especially governments always have effects that are unanticipated or unintended. That is why in passing Bill C-218, the Safe and Regulated Sports Betting Act, we ended up with Senator Marty Deacon’s Bill S-269.
The introduction of technological protection measures, or TPMs, via the Copyright Modernization Act in 2012 is a case study in unintended consequences. A well-meaning and necessary measure to address intellectual property concerns has had all kinds of spinoff effects, leading us to where we are today with this bill. We would be foolish to think that the concerns of some of the witnesses, even if exaggerated, had absolutely no foundation and should not be accommodated in some manner.
At committee, Senator Marshall asked department officials specifically if they had done any research on the bill as to the unintended consequences, and the answer — while roundabout — seemed to be, no, they had not.
Senator Massicotte asked what the solution is, and then he provided an answer to his own question by suggesting a five-year review. I believe testimony indicated that review is something inherent to the Copyright Act. And that perhaps explains why we did not see an observation of this effect coming out of the committee’s clause-by-clause consideration of the bill. However, when looking at the Copyright Act and the language about a five‑year review, it’s a little unclear to me in this regard.
Section 92 of the Copyright Act states:
Five years after the day on which this section comes into force and at the end of each subsequent period of five years, a committee of the Senate, of the House of Commons or of both Houses of Parliament is to be designated or established for the purpose of reviewing this Act.
Colleagues, it doesn’t sound like a five-year review is guaranteed to take place — only that a committee of either of the two houses of Parliament or both will be designated to carry out a review. If it is a House committee that is designated, a Senate committee may not be.
I am not satisfied with that when it comes to a bill in which some legitimate concerns were raised about unintended consequences while no amendments or even observations of any kind were made to accommodate them. I would suggest that the Senate Banking Committee undertake its own separate review of this particular issue in the coming years — but not more than five years — should Bill C-244 receive Royal Assent. The committee can bring back the witnesses whom we heard and others, if need be, to see what unintended consequences have resulted.
I believe that the real issue we are faced with here is not so much a question of planned obsolescence — which has been around for a hundred years, benefiting the repair industry as well as manufacturers — but of organizations reserving for themselves a monopoly on repairs, without facing competition on the price of those repairs.
The committee heard that these repairs can be a vital part of their revenue scheme. That’s fine for the manufacturers, but, as we all know, competition in the marketplace not only leads to better, perhaps fewer, obsolescent products but also better prices for consumers. And I think with Bill C-244, we will be taking the steps to achieving that. Thank you.
I move the adjournment of the debate.
All those in favour of the motion will please say “yea.”
Some Hon. Senators: Yea.
The Hon. the Speaker pro tempore: All those opposed to the motion will please say “nay.”
Some Hon. Senators: Nay.
The Hon. the Speaker pro tempore: In my opinion the “yeas” have it.
