Bill C-272 (Historical)

An Act to Amend the Copyright Act (diagnosis, maintenance or repair)

This enactment amends the Copyright Act in order to allow the circumvention of a technological protection measure in a computer program if the circumvention is solely for the purpose of diagnosis, maintenance or repair of a product in which the program is embedded. It also allows the manufacture, importation, distribution, sale, renting and provision of technologies, devices or components used for diagnosis, maintenance or repair of such products.

Copyright Act

[Erin O'Toole, Conservative, Durham, ON]

Madam Speaker, it is a pleasure for me to stand today and speak to Bill C-244, an act to amend the Copyright Act.

This bill is pretty much the same bill that Parliament expressed a majority opinion in favour of in the last Parliament, with Bill C-272. Copyright law is something I have worked with professionally since my time as a lawyer in the private sector. It is an important part of our intellectual property regime. All of these laws should make sure to keep pace with technology, with change and with consumer need. That is why I am in favour of this private member's bill going to committee and being studied.

The short form for this bill is enshrining the right of repair. Why is that important? There are two fundamental areas in which it is critically important for us to modernize our approach to repairing technology. The first is for consumers. We use intellectual property to grant extraordinary commercial rights, almost monopoly-like protections, and we do this to encourage innovation and to make sure we have smart phones and technology that make our lives easier and our economy more productive.

However, that monopoly protection, for a period of time, will also lead to higher prices and less competition. In the case of technology that cannot be repaired because of digital locks, technology manuals and other things that are being kept secret, that is providing a monopoly protection for that technology, thereby not allowing someone to have a device repaired. When we have spent a lot of money on a device, we are then going to be forced to either buy a new one or have the repair done only by an authorized dealer. What does that mean? It means higher prices for consumers.

The biggest thing we will see a lot of parties in this House supporting Bill C-244 on is this consumer protection. In the previous Parliament, that is why the official opposition and I supported it. It is for consumers to have more choice and have that right to repair something themselves. I doubt there is an MP in here who is technologically proficient enough to fix their smart phone or anything else. I am sure everyone would agree. However, we can have a third party do that for us, an agent we take our device to. They can fix it.

It is important for any Canadians who might be following this debate to know that this is beyond just getting a smart phone fixed. There are so many computer operating systems, semiconductors and chips. We have seen a shortage of them in the last year, causing a backlog in orders from cars to recreational vehicles and farming machinery. These devices are manufactured and we think of them as industrial goods, but they are so heavily dependent on consumer programs. If we then have digital locks on those programs, we will not be able to repair them, and when there is a supply chain shortage, we will have trouble replacing an item.

The first reason I think Bill C-244 should go to committee is this consumer protection, small business, and the ability to have lower prices and reuse materials. We are going to hear that some industry players in the automotive field, in farming implements and in computer devices are opposed to this. If someone has an intellectual property monopoly, of course they are not going to want more competition and they are going to say we should not allow a digital lock to be opened to allow someone to repair something.

Our society needs this, because this is now the state of the consumer. Every large purchase we make, like that of a home, vehicle or business, will be impacted by these intellectual property provisions, and it is time for industry to get with the program. We have to encourage an ability to repair for the consumer and more competition on the repair space. Industry will adjust to this change, which is necessary after a few decades of rapid technological advancement.

The second reason the right to repair is so important, and I think we will hear a lot of advocacy groups around the country talk about the environment, is if we are not repairing items, they will often be discarded. Therefore, not only is the consumer or small business paying more, but piles and piles of electronic waste are being created, which are far too often finding their way to jurisdictions in China, or other parts of the developing world, where they are not really being recycled.

They are just paying to destroy or dispose of these items. It is out of sight, out of mind for us, and we go on to the next purchase, but this is then allowing our waste to be a problem in an area of the world that certainly does not have the ability to deal with it. The developed world has to get in line with the philosophy behind the right to repair, not just for the consumer, as I said, but also for the environment.

We are also seeing our friends do this. Of our friends and trading partners, there is no bigger one than the United States. Updates it made to its Digital Millennium Copyright Act are providing the ability for a right to repair. Right now, the United States is limiting that to the consumer level, so if it sees a large company buy a large manufacturing CNC type of machine, it is not providing that right of repair in the industrial commercial setting, but it is providing it for the consumers. It is extending in copyright what is known as fair use rights, allowing fair use to include the diagnosis, repair or maintenance of operating systems within a device or some sort of machinery. A consumer has that right, the fair use of copyrighted material, to diagnose a problem and fix it.

That is what should be done with our copyright regime to allow fair-dealing exceptions at the consumer level. This bill really does not tackle the right to repair from the standpoint that the Americans have, but at least it is a start. This private member's bill would actually define or redefine what it means to circumvent a computer operating system, thereby making sure that the right to repair does not attract violations of the Copyright Act. At committee, one of the things that would be explored is whether we should be in line with western countries that respect intellectual property rights and create this right to diagnose and repair as a fair-dealing exception.

I must note for fun, having done copyright work when I was legal counsel to Proctor & Gamble and with two large law firms, that copyright and fair use have always been areas that I have watched, including fighting counterfeit goods, which is people using trademarks and copyrighted material to trade off the goodwill of other brands when they are selling phoney products.

In fact, the most leading case in Canada on the fair-dealing exception, the most recent major legal development, was in the case of the Canadian Broadcasting Corporation v. Conservative Party of Canada, where the Conservative Party of Canada was successful in defeating the claim by the Canadian Broadcasting Corporation that television commercials that use clips from CBC's news programs somehow violated its copyright. Certainly a public broadcaster should not really have the same intellectual property strategies as the private broadcasters, but, in any event, the court recognized that criticism, political debate and questioning allowed for a fair-dealing exception to use those clips.

We see now this copyright usage on YouTube videos and a whole range of things, where small clips can be used in someone's production as long as they are just being used for news, commentary and criticism. These are exceptions that have developed within copyright as our society developed, as social media grew and as technology grew. As copyright changes with the times, for the benefit of both the consumer and the environment, we need fair use exceptions or changes to allow a right of reply. That is why it is encouraging that Bill C-244 builds on the work done under Bill C-272 in the last Parliament to give Canadians this right of repair.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Mr. Speaker, in my role as critic, I rise today to speak to Bill C-244, which was introduced by the member for Richmond Centre. As we mentioned, this bill is a carbon copy of Bill C‑272, which was introduced in the last Parliament by the member for Cambridge, who sits beside the member for Richmond Centre. The House studied the former bill before the election was called, and members will recall that the Conservatives supported Bill C‑272 up to clause-by-clause consideration.

Therefore, I wish to inform the House that the official opposition will support Bill C‑244 at second reading so that it may be studied clause by clause at a parliamentary committee, where all viewpoints will be heard, which is logical and part of our job. There are some exciting, interesting and appealing views on this bill, as well as other views that provide a different perspective and a better understanding of the situation, and that also reveal flaws that can be corrected by a parliamentary committee, if necessary.

Bill C‑244 is essentially about copyright, but in simpler terms, it is about the right to repair.

We have all developed new habits as consumers. We buy electronics. Usually, if there is a problem, we open the case and try to figure out what is going on. If we cannot figure it out, we throw out the item and buy a new one.

In the not-too-distant past, whenever we ran into a problem with a household device or appliance, such as a toaster or washing machine, we would open it up and, with a little imagination, we might be able to repair it or at least find a solution. Now, though, these things get thrown out.

One positive outcome of Bill C‑244 would be that people would be allowed to repair things themselves. In addition, the bill would prevent broken devices and appliances from being sent to landfill because the owners are not able to repair them themselves. This is an environmentally friendly approach.

The study of Bill C‑244 is part two of the debate that took place in the House two years ago. In preparing for this speech, I read what my colleagues said at that time, and I want to point out that the members for Cypress Hills—Grasslands and Peace River—Westlock made some very good observations based on their own personal experience.

Earlier, my colleague from Saskatchewan, a very young man, reminded the House that he grew up on a farm and that his father, his grandfather and his family worked directly with machinery. When the machinery broke down, they repaired it. In those days, we repaired things. In those days, people helped each other. They would get on the phone and call the local store, which would suggest another local store where the replacement part could be found, and then they would replace the part themselves.

Today, it is much more difficult. When we look under the hood or check out a part, there is often a computer, an integrated circuit or microchips. Not everyone can repair those things themselves or reprogram the equipment.

Many people will bypass this computer or high-tech device and try to repair the item, but doing that could potentially create even more problems.

This is why there must be a good framework surrounding the practice of the right to repair, not only for citizens, for consumers, but also for businesses in our communities. They do not necessarily have a direct connection with the product manufacturer. That is where the nuance lies, and the devil is in the details. This is why we must ensure that Bill C‑244 is drafted properly.

We understand that the digital world of the 21st century presents new challenges, but we must allow people to continue to have the right to repair and not always be held hostage to the original manufacturer by having to send the product back for repair at the consumer's expense. The manufacturer can assume total control by permanently sealing its product, but this choice takes away the consumer's first recourse and hurts regional or local businesses that could help fix the problem.

This is the second time the subject has come up in the House. It is the second time because there was an election. I will not get into that because we are trying to be positive, constructive and non-partisan today.

I should point out that the House of Commons in Ottawa is not the only place people are talking about this. As the member for Richmond Centre, the bill sponsor, said earlier, nearly 20 states in the United States are also bringing in legislation about this and European countries are doing likewise, so Canada really needs to look at the best way legislation can address this issue.

It is also important to understand that right to repair is a provincial matter. That is why it is important to be careful here. We must ensure that we are not interfering in provincial jurisdiction. Rather, we need to make it possible for provinces to change their laws to allow the right to repair if that is what they want to do. We are opening the door for them to do that in accordance with the framework set out in Bill C‑244, so it is important to make sure the bill says exactly that.

Now let us talk about the impact this will have on warranties. By law, when someone buys a product, it must come with a warranty. To what extent does the warranty apply if the consumer takes the item apart, especially if they take the computer apart? We need to ensure that the impact on warranties is carefully considered, that the impact on provincial laws is examined and that there are no adverse effects on people who tinker with the insides of a product.

Obviously, there are many concerns that need to be clearly defined in this bill. That is why, when we were debating this in the previous Parliament, it got a little heated at times because not everyone agreed, which is just fine. That is a good thing. That is called democracy, and that is what it means to get to the bottom of things to avoid problems in the future. Without wishing to make a pun on the bill before us, once a law is passed and locked down, it has to come back to the House if it needs to be changed or amended. Once it is voted on, we have to live with it, so we have to make sure we do not need to fix it too often along the way.

That is why, over the past few years, some people have spoken out against the approach of the previous bill, Bill C‑272. Representatives from the equipment manufacturers association, a very powerful group in the agricultural sector, said that it was a fundamental issue for them and that the bill was far too vague. I presume that, during clause-by-clause consideration, we will have the opportunity to hear these dissenting voices, which are telling us that the bill is too vague and that there is too much room for interpretation. We will have to fix this and ensure that the bill is not too vague.

I want to quote the CEO of Brandt Tractor. He said that this is a terrible legislation and that this kind of legislation kills all dealers like Brandt Tractor and hurts manufacturers.

Certain industry groups directly affected by this bill have also warned that it is a little too vague and that it will have a direct impact on all the small businesses currently working in this area.

I repeat that the official opposition agrees with the principle of this bill at second reading. We will move forward because we understand that there are positive impacts for Canada's rural communities if farmers, among others, are allowed to continue repairing their equipment without any fear of repercussions. We also understand that this has environmental benefits. It is preferable to repair equipment than to throw it away. This can give an item a second, third or fourth life instead of it being thrown in the garbage right away, with all the environmental impact that can have.

We are also aware of the impact the bill will have on industry, on how things are done and on local businesses, and we must consider that. If we see that certain clauses of the bill need to be amended, added or removed, we will be open to doing that.