Bill C-244

An Act to amend the Copyright Act (diagnosis, maintenance and repair)

This enactment amends the Copyright Act in order to allow the circumvention of a technological protection measure if the circumvention is solely for the purpose of the diagnosis, maintenance or repair of certain types of products.

[The Chair, Liberal, Joël Lightbound]

Welcome back, friends and colleagues.

We're now entering the second hour of this meeting, where we are studying Bill C-244, an act to amend the Copyright Act regarding diagnosis, maintenance and repair. As you know, it is due to be reported back to the House on Wednesday.

Given the short time frame, I would seek the consent of the committee to agree to a motion asking for a 30-day delay for us to report back to the House.

Is there unanimous consent for such a motion?

[Brian Masse, NDP, Windsor West, ON]

I have another quick question.

The highlight is that the FCC.... This is interesting because I've often said that—as consumers—Canada is treated as a colony when it comes to some of the large corporations and the information that we get from the United States and other companies. When you look at the auto sector, we are actually in full regulation compliance with regard to safety, maintenance and emissions. At the same time, when there are recalls.... Some good examples are the Prius and Toyota recalls where the consumers benefited way more and they even had investment in their companies in the United States, because they were treated as a different element.

I don't understand why we would expect Canadians to have less, especially if the government is saying that we can't. With regard to Bill C-244, there were concerns over following CUSMA. In the meantime, we wouldn't have cross-comparison realities over here because it won't actually violate our trade obligations.

[The Chair, Liberal, Joël Lightbound]

If there's still debate, I can't put it to a vote. I had Mr. Dong who wanted to speak.

You, Mr. Perkins, raised your hand earlier.

In any event, we'll have to adjourn. Hopefully there can be discussions amongst the parties during the two weeks of constituency meetings that we will have, and then we can come back and proceed swiftly on Bill C-244.

On that note, thanks to everyone—the analysts, the clerk, the interpreters, the support staff, everyone.

Thank you very much. Have a great two weeks.

The meeting is adjourned.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

From what I understand, the original intent of Bill C-244 was to somewhat broaden how the Copyright Act applies. Just from reading amendment G-1, it talks a lot more about “performer's performance fixed in a sound recording”. Again, it's talking a lot more about musical works. It's not recognizing or realizing that that's not necessarily what we're talking about here.

The vagueness of the Copyright Act is that a work can be anything. It can be computer code. It can be a musical piece. It can be a book. It can be a museum and archives. That's the vagueness issue with the term “work”.

I think the original intent of Bill C-244 was to try to address that vagueness. I feel that this amendment doesn't fix that problem with regard to what Sébastien was just asking about: “Does this enable somebody to fix a John Deere tractor?” I mentioned this earlier. When you hop in that John Deere tractor and hit “start” on the screen, it's expressly written right there that you do not own a copy of the software. You have a licence to operate it, but that licence does not give you the ability to access that software. What this bill was originally intended to do was to allow a repair shop the ability to import a device that would allow somebody to get the information they'd need to complete the repair on that tractor.

The amendment that's been provided here by Mr. Fillmore.... I feel like it's completely gutting the entire purpose of trying to get a right-to-repair bill because, again, it doesn't address the vagueness of the term “work”.

I'll leave my comments there for now.

I guess the only other thing I would add is this—and this would be my question: Do you, as the experts, have any comments on that? Would you like to comment on that?

The second point I'd like to touch base on is that, obviously, there are 14 or 15 states in the United States that have already passed and implemented right-to-repair legislation. What's stopping those states from...? They're obviously not concerned about CUSMA. Is that because it's done at the state level and not the federal level? If it were a province doing this, would it be at risk of violating the trade deal? If so, what's the difference between an individual state's doing it versus what we're doing here today?

[Patrick Blanar]

Absolutely. Thank you very much, Mr. Chair.

I think, ultimately, the objective here is to be as compliant with our international obligations as possible. Ultimately, it is our view that the inclusion of the device, the ability to trade in devices or to provide devices that allow for circumvention is not consistent with our CUSMA obligations.

It's a pretty complicated issue within CUSMA because of the way it's framed across multiple different articles. Ultimately, there are three different types of prohibitions contained in CUSMA. One is a prohibition on access to works protected by TPMs. The second is a prohibition on providing services that are mainly for the purpose of accessing works or circumventing TPMs. The third is to provide devices that allow for the circumvention of TPMs.

One concern that we have is that.... Sorry, I'm just going to take a step back.

There are some specific exclusions that are listed within CUSMA. There's a set of seven of them. Unfortunately, none of those actually address repair. Repair falls under a catch-all provision. That catch-all provision only allows exceptions to circumvention of the first of those three restrictions, which is to access.

The fact that Bill C-244 and, I believe, many of the other motions maintain that device prohibition creates problems for CUSMA compliance.

[Andy Fillmore, Liberal, Halifax, NS]

Thank you.

As you can see, the title of this amendment is removing the exception to the device prohibition. I want to explain what that's about.

CUSMA features three categories of TPMs, of those measures. The first one is the service prohibition. The second is the device prohibition. The third is the circumvention prohibition.

Now, when you look at those three prohibitions with regard to the diagnosis, maintenance and repair issues that this bill is focused on, CUSMA actually limits Canada to only introducing an exception from one of those three TPM prohibitions that I've just listed, namely, the circumvention prohibition. CUSMA only allows this bill to have a circumvention prohibition.

The challenge this amendment addresses is that Bill C‑244, in clause 2, currently includes an exception to another of the three prohibitions—the device prohibition—and, as I've said, that exception is not permitted under CUSMA. The amendment eliminates that problematic exception, and I will say that the bill's author is supportive of the amendment as well.

If we look at the three proposed paragraphs that we're talking about here, in the first, subsection 41.121(1), this change makes it clear that the exception only applies to a “work”, “performance” or “sound recording” that forms part of a product in need of repair or maintenance. In other words, it applies to the circumvention prohibition.

If we go to the next proposed one, which is 41.121(2), this is called the “for greater certainty” paragraph. It reads:

For greater certainty, subsection (1) applies to a person who circumvents a technological protection measure in the circumstances referred to in that subsection for another person.

The purpose of this change is to provide certainty that the exception would apply to owners of products and third party repair assistance. It just supports the exception that we've created in the first part.

The third one is actually a new one: 41.121(3). It's called “the non-application paragraph”. It says:

A person acting in the circumstances referred to in section (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright.

In other words, you don't get to have the act apply to you if you're doing the wrong thing. This change clarifies that the exception applies only if it does not constitute an infringement of copyright. This is important, because it not only helps to ensure that the bill is compliant with CUSMA, but it also builds support for Bill C‑244 from copyright owners.

It's a complicated one, but really, it's just about bringing this into alignment with CUSMA, eliminating what I will call the “illegal exception” and putting in place the permitted exception, which is, again, the circumvention prohibition.

[The Chair, Liberal, Joël Lightbound]

There is a proposition by Madame Lapointe to vote down clause 1 of Bill C-244. Do we need to go through a vote, or is there a—?

[The Chair, Liberal, Joël Lightbound]

Honourable members, we are back.

Pursuant to the order of reference of Wednesday, October 5, 2022, this is Bill C-244, an act to amend the Copyright Act (diagnosis, maintenance and repair). We are going to go through it clause-by-clause.

I want to highlight that we have with us, from the Department of Industry, Patrick Blanar, director, copyright and trademark policy directorate, joining us by Zoom; and Pierre-Luc Racine, policy adviser, copyright and trademark policy directorate, also with us by Zoom, to answer any questions we may have.

You are all familiar with the process. It's not the first time you have gone through this, and hopefully it will go smoothly as we go through clause-by-clause.

We have gone through this only once, so bear with me. I am still relatively inexperienced.

(On clause 1)

Shall clause 1 carry?

[Han Dong, Liberal, Don Valley North, ON]

Part of the reason I'm asking this is that, during the testimony from different witnesses on Bill C-244, we heard quite a bit of concern around warranties and whatnot. Would this void warranties? What's your view on that?

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Yes. Bill C-244 allows you to circumvent a TPM for the purpose of a product that would make something...or allow you to have a device that would diagnose, maintain and repair. There's an ability to circumvent a TPM to accomplish that. With my bill, the circumvention of the TPM is so that you can access the information you need to make your product interoperate. The information you would be getting to make your product interoperate wouldn't be used for right to repair. It would only be to make your product interoperate with another.

Again, it's trying to get the signalling information from a combine to make all the components on your header work. That way, you can change the speeds. Just the way technology has changed, a header is a lot more complex than it used to be. You need that signalling information.

That's what these companies are looking for. This bill enables them to circumvent a TPM to get the signalling information they need to make their product work, whereas right to repair is to get the data you need to be able to diagnose, maintain or repair a product.

[Han Dong, Liberal, Don Valley North, ON]

Thank you, Chair.

MP Patzer, thank you very much for bringing this forward. Very much like my NDP colleague Mr. Masse, I admire your determination and the energy you're putting into this bill.

Earlier you talked about a comparison or similarities with Bill C-244. Can you break it down a little bit for the audience? What does your bill do that is different from Bill C-244?

[Viviane LaPointe, Liberal, Sudbury, ON]

During our study on Bill C-244, there were opposing views on the bill. Original equipment manufacturers have been quite opposed to right-to-repair frameworks for a number of reasons. They cite safety concerns and IP theft.

What are your thoughts on this?

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

I definitely appreciate that.

In looking at the trade, again the big thing is that we're playing catch-up here because our laws are behind and outdated. When we have a 10-year review for copyright and then it takes a few years to implement and make those changes, it puts us at risk of being a little bit further behind. I think that's why the committee is seeing Bill C-244, why we're seeing my bill.... I know you drafted one on similar issues around copyright as well. We need to have a bit more agile legislation now as technology grows and advances, and we have to do so in line with our trade agreements.

When we look at CASIS, it's good to get that sharing of information, but when it's voluntary, it makes it tough. That's why we have to do something like this. That way, the manufacturer is trying to build those pieces and have the certainty they need to go forward and get the information they need to just make their product work, and nothing more than that.

I think what this bill does is that it provides certainty for the main OEMs. Again, they can develop proprietary software that's going to work, yet they can't block out the short-line manufacturers from being able to access the information they need to make other products that will work on their platform.

When it comes to the trade side of things, I think this bill is in a good position.... Again, as I alluded to earlier, I am willing to make amendments if there are things that need to be done to make it more compliant when it comes to trade deals and agreements.

This bill came out of a need for change, which we saw in the CUSMA negotiations anyway. Again, we're playing catch-up here to what the U.S. is doing. There shouldn't be an issue, but that's....

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you, Mr. Chair.

Thank you, Mr. Patzer, for being here. Thank you, and congratulations for making it this far. As members of Parliament, it's always quite a special thing to be able to get a private member's bill moving through the House and to the committee stage, so congratulations on having the initiative to bring forward a bill that, I think, has a lot of interest from all sides.

The interoperability part, for those who are watching, applies to a wide variety of things. With regard to another private member's bill, Bill C-244, we've been dealing a lot with the impacts on agricultural equipment.

In your work in preparing this bill and making sure that it was achieving what you hoped it would achieve, what are some of the industries you've consulted with, and how do they feel about it?

[Anthony D. Rosborough]

I'll have the same pause that Professor Centivany had. I think the answer would be, “Not really.” I can substantiate that by saying that Canadians are safer when the access to technical knowledge and repairability is not kept secret and the inner workings and functioning of devices can be discerned and understood lawfully.

The fact that device manufacturers see copyright as essential to the health and safety of Canadians should also cause us some concern. If the contention is that devices and products are inherently dangerous and repair activities pose safety risks, we should ask more of manufacturers through amendments to the Canada Consumer Product Safety Act or other regulations.

Again, just as copyright law is not really an appropriate framework for cybersecurity regulation, it is also not the appropriate forum for public safety, in my opinion. If we're talking about the right to repair to the extent that it relates to Bill C-244, I think the answer is no. There aren't really limitations here, in that respect.