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.

[Catherine Lovrics]

Okay.

Since 1997, Canada has recognized that adequate legal protections for TPMs are indispensable to protect copyright. Since then, reliance on TPMs has become integral to the digital economy.

Today, TPMs not only play an important role in IP protection but are relied on for safety and security. For example, TPMs help to ensure health, privacy, safety and environmental standards are maintained once products are in the hands of consumers.

Through various copyright treaties, Canada not only has agreed to protect TPMs but has agreed that any exceptions to TPM protections should be very carefully crafted, supported by evidence and focused narrowly to ensure TPMs remain effective. IPIC believes amendments are needed to comply with our treaty obligations, including the WIPO Internet treaties and CUSMA.

We are concerned with the blanket approach taken in the current bill and unintended consequences that may follow. We heard honourable member Wilson Miao, among other witnesses before the committee, discuss the need to develop a right to repair framework. We agree: A framework is required.

In particular, IPIC supports evidence-based exceptions that permit circumvention of TPMs to enable a right to repair. We recommend that goods that benefit from the exception be specified in regulations, subject to a framework that assesses the specific use case.

We've proposed a regulatory framework that would consider factors including that the TPM is indeed demonstrated to have an adverse impact that warrants circumvention; that enabling access to computer programs would enable repair and not copyright infringement; and that circumvention does not carry risks to health, safety, privacy and security. Such a framework would comply with our treaty obligations, better align with our trading partners and manage other risks, all while aiming to achieve the policy objectives set out in the mandate letters.

Further, and importantly, IPIC is of the view that the exceptions should not enable distribution or trafficking in circumvention tools. We recommend that the bill be amended accordingly to instead enable service providers to exercise the right to repair on behalf of consumers.

Any exception that would permit distribution of circumvention tools raises serious concerns. For example, as stated in the WIPO guide on the Internet treaties, once placed on the market for a specific purpose, such tools would then become available for all to use with impunity. Permitting sale of circumvention tools is not only out of step with our trading partners but also inconsistent with the evidence before this committee.

Many witnesses have discussed the importance of this bill's enabling a robust aftermarket repair service industry. Those comments appear to misunderstand the bill. The bill as drafted does not introduce an exception for service providers, and IPIC proposes that the bill be so amended.

IPIC also recommends amendments to ensure that what constitutes a repair is understood to be the proper functioning of a product according to its approved specifications. We believe it's important to be clear that the bill enables repairs and not modifications. Manufacturers' specifications aim to comply with standards to protect the environment as well as the health, privacy and safety of Canadians.

IPIC also encourages studying the right to repair in the context of the commercial rationale for manufacturers disclaiming liability and voiding warranties if a product is tampered with and/or updated with unauthorized aftermarket parts.

As TPMs are an essential safeguard to the digital and connected economy well beyond IP, circumvention should ensure repairs are safe: that they do not risk health, personal injury or property damage and that they maintain security, such as protecting the personal information of Canadians and preventing interception to gain unauthorized control over a consumer product. This is particularly important given the explosion of the Internet of things and computer-controlled products like self-driving cars, and in a time when hacking and ransomware are pervasive, along with state-sponsored terrorism.

Finally, we also recommend small technical amendments to the bill to address a redundant reference to “computer program” in clause 1 of the bill: A “computer program” is a work.

In sum, our proposed amendments provide a framework for case-by-case assessments that would consider the risks and benefits. IPIC recognizes that Bill C-244 is only one piece of a framework and that a robust framework would involve other areas of law, with provinces at the forefront of facilitating a meaningful right to repair.

I thank all of you for your time, invite any questions you may have and direct you to our brief and proposed amendments, which will follow shortly.

[Catherine Lovrics, Chair, Copyright Policy Committee, Intellectual Property Institute of Canada]

Mr. Chair and honourable members, on behalf of the Intellectual Property Institute of Canada, thank you for the invitation to appear as part of INDU's study.

IPIC is the professional association of lawyers and patent and trademark agents practising in all areas of intellectual property. My name is Catherine—or Cat—Lovrics, and I am here as the chair of IPIC’s copyright committee and our subcommittee on the right to repair.

IPIC recognizes that the 2021 mandate letters reflect the policy objective of implementing a right to repair to extend the life of home appliances and amending the Copyright Act to allow for the repair of digital devices and systems, a pursuit that led honourable member Wilson Miao to table Bill C-244.

We are pleased to hear the openness to amend the bill, including from MP Wilson Miao himself. IPIC’s written submissions will follow and include specific proposed amendments to the bill for you to consider, which are aimed at helping the government achieve its objectives.

To that end, our subcommittee focused our efforts on the specific wording of Bill C-244, considering the entire scheme of the Copyright Act, a comparison with approaches of our trading partners, as well as compliance with Canada’s treaty obligations. I will provide some highlights today.

From a copyright perspective, the right to repair concerns exceptions that permit technological protection measures—or TPMs—to be circumvented. Since 1997, Canada has recognized that adequate legal protections for TPMs are indispensable to protecting copyright. Since then, reliance on TPMs has become integral—

[Joshua Dickison, Copyright Officer, University of New Brunswick, Canadian Federation of Library Associations]

Good morning.

Thank you, Mr. Chair.

My name is Joshua Dickison. I'm a member of the Canadian Federation of Library Associations on the copyright committee, and a copyright officer at the University of New Brunswick. With me here today is Alexandra Kohn, also a member of the CFLA's copyright committee, and a copyright and digital collections librarian at McGill University.

We greatly appreciate this opportunity to meet with you today regarding Bill C-244.

The CFLA is the united, national voice of Canada's library community. We represent the interests of public, academic, school and special libraries, and all of those concerned about enhancing the quality of life for Canadians through access to knowledge and literacy.

The CFLA applauds the Government of Canada for the introduction of Bill C-244, and supports the right to repair. As noted in our brief, the CFLA believes that additional and critical modifications are required if the legislation of technological protection measures—TPMs—is to ultimately succeed in being both balanced and technologically neutral.

Libraries, archives and museums—LAMs—believe that all Canadians should be able to circumvent TPMs for all non-infringing purposes, including the right to repair products. The right to repair should be a user right in Canada. It is essential for preserving balance in the law.

TPMs prevent our communities from fulfilling our socially beneficial mandate to preserve and maintain access over time to our collections. Libraries and archives play an essential role, providing access to many objects and devices that control access to information, such as printers, scanners and digitization equipment, and enable innovators with our maker spaces, tool lending libraries and 3-D printers. Our collections increasingly include software-enabled products, devices and applications, such as e-books, datasets, video games, computers, Wi-Fi hot spots and more.

Without a right to repair, the ability of libraries and archives to provide access to services and collections is threatened. For example, some Canadian academic libraries purchased Espresso Book Machines. It is print-on-demand technology. These machines were over $100,000 apiece. As a result of licensing terms restricting repair to the physical equipment, many of these machines are now rendered useless and sold for parts because of prohibitive software licensing costs and the inability to fix or adapt software for continued use.

Archives need the right to repair software-enabled products, for example, as part of their preservation activities and, in some cases, to simply correctly identify their holding. U of T libraries lost access to 55 discs of purchased case study teaching material due to obsolete file formats and a lack of documentation from the proprietary software source.

Information professionals are concerned that once devices and software are rendered obsolete, are no longer supported or are deemed unprofitable by a vendor, irreplaceable knowledge will be lost or made inaccessible if repairs and modifications cannot be legally made to preserve this content and access.

Canadian TPM legislation goes beyond our international treaty obligations and has far-reaching and detrimental consequences for the preservation of our cultural expression. The current language distorts the intended balance of rights, increasingly stifles access and innovation and is at odds with the principles of technological neutrality. Libraries are stewards of the cultural record and teachers of copyright protection for creators and users. Denying users rights simply because of the medium creates a culture of copyright chill.

The CFLA and the entire library community understand and acknowledge the complexity of the issues related to the right to repair. We also welcome efforts to improve upon the interoperability exception in Bill C-294. We applaud the Government of Canada's attempt to find balance between the concerns of rights-holders and those of users as a key goal of continuing copyright reform.

The library community plays a vital role in providing Canadians access to all forms of material. That access to information is integral to ensuring that Canadians are regular contributors to the economic, social and cultural well-being of our communities.

We would like to thank you once again for this opportunity and we're happy to respond to any questions you might have.

[William Hanvey, President and Chief Executive Officer, Auto Care Association]

I made a mental note not to do that.

Thank you, Mr. Chair.

Thank you, honourable members of the committee, for the opportunity to speak before you on Bill C-244.

My name is Bill Hanvey. I am president and CEO of the Auto Care Association, which is based in Bethesda, Maryland, just outside Washington, D.C.

The Auto Care Association is the voice of the approximately $400-billion United States auto care industry. We provide advocacy, education, networking, technology, market intelligence and communication resources to support the collective interests of our members, which are companies that provide quality parts, products, services and repairs for all 290 million vehicles on the United States' roads today.

The vehicle service and repair industry is an essential service that includes the manufacturing of replacement parts, distribution networks, and service and repair shops. Around the world, our industry is responsible for keeping over a billion vehicles on the road in safe condition. Independent auto repair shops are in every jurisdiction and constituency worldwide. These independent shops ensure that motorists in every community, including small and remote ones, have reasonable and timely access to essential vehicle services.

Across the globe, consumers are facing a significant threat to their right to repair their vehicles at the auto repair shop of their choice. Vehicles are increasingly becoming like cellphones, connected wirelessly at all times. These connected vehicles collect thousands of data points on the health of vehicle systems. The automakers then transmit these data to themselves wirelessly, precluding access to the data by independent repair shops.

Without access to these data, there are significant risks to the automotive aftermarket. For example, without access to data, independent auto repair shops cannot service a vehicle. It becomes more difficult to ensure that vehicles are operating as efficiently and safely as possible. Moreover, consumers will lose the right to repair their vehicle at the auto repair shop of their choice. In the United States, approximately 70% of post-warranty repairs are currently handled at independent repair shops. This open, fair and competitive automotive aftermarket needs to be protected to meet consumers' needs.

The Auto Care Association supports the intention and principles behind this bill. Bill C-244 is a step in the right direction when it comes to levelling the playing field for the service and repair of consumer goods, something that is of importance not just to the automotive sector but also to many others. The bill comes at a critical moment, as manufacturers of goods, including vehicles, have become increasingly sophisticated in their ability to create a closed loop for service, diagnostics and repair.

The Auto Care Association supports the proposal to expand exclusions from software circumvention prohibitions for the purpose of repairing or diagnosing a product. While the exemption is similar to one available under its sister law, the Digital Millennium Copyright Act in the United States, we believe this provision is superior, since the current U.S. law requires industries to seek a product-specific exemption every three years. Further, it appears the exemption in this legislation also includes the availability of circumvention tools used by independent repairers to diagnose and repair a product. The inclusion of this provision should increase the effectiveness of this legislation in preventing manufacturers from using software to impede competition in the repair industry.

In addition, the Auto Care Association recommends that legislative bodies around the globe include unambiguous statutory language that eliminates manufacturers' ability to prevent independent shops from obtaining diagnostic, repair or maintenance information for the purpose of legitimate repair for any devices—cellphones, farm equipment, automobiles or heavy trucks.

To that end, we support the amendments discussed by our sister organization, the Automotive Industries Association of Canada, otherwise known as AIA Canada. These amendments, which include parallel changes to the Competition Act, would help reinforce a manufacturer’s requirement to allow access to diagnostic and repair information.

The right to repair consumer goods, including motor vehicles, is necessary for a truly open, fair, and competitive automotive aftermarket to continue to exist. Right to repair is a global movement. In the state of Massachusetts, 75% of voters supported state legislation for right to repair. In March 2021, the first ever right to repair laws in the European Union came into effect that require manufacturers to make parts and repair information for products available to third parties, and I understand that 83% of Canadians agree that automakers should be required by law to share data with independent auto repair shops.

It is critical that vehicle owners—and not automakers—are the owners of their vehicle data. If our industry is to remain competitive, automakers should be required to provide access to this data so that consumers can continue to choose where to get their vehicle repaired.

Thank you again for the opportunity to present today. I look forward to answering your questions.

[The Chair, Liberal, Joël Lightbound]

I call the meeting to order.

Good morning, everyone. Welcome to meeting number 49 of the House of Commons Standing Committee on Industry and Technology.

Pursuant to the order of reference of Wednesday, October 5, 2022, today we are considering Bill C‑244, An Act to amend the Copyright Act (diagnosis, maintenance and repair).

Today's meeting is taking place in a hybrid format, pursuant to the House order of Thursday, June 23, 2022.

I want to thank the numerous witnesses we have with us today. Thanks for taking the time to join us on this Monday morning.

We have, from the Agricultural Producers Association of Saskatchewan, Mr. Ian Boxall; and from the Auto Care Association, we have William Hanvey.

We are also hearing from Joshua Dickison and Alexandra Kohn, from the Canadian Federation of Library Associations, as well as Catherine Lovrics, from the Intellectual Property Institute of Canada.

From OpenMedia, we have Matthew Hatfield.

We are also welcoming John Lawford, from the Public Interest Advocacy Centre.

Without further ado, I give the floor to Mr. Boxall, from the Agricultural Producers Association of Saskatchewan.

Mr. Boxall, the floor is yours for five minutes.

Copyright Act

[Marty Morantz, Conservative, Charleswood—St. James—Assiniboia—Headingley, MB]

Mr. Speaker, it is an honour to rise today to speak to Bill C-294, the unlocking innovation act. I was delighted to hear from the member for Winnipeg North just a few moments ago that the Liberal members will be supporting this very important piece of legislation introduced by my Conservative colleague from Cypress Hills—Grasslands. I want to thank that colleague for all the hard work he has done to bring this important piece of legislation before the House.

The bill would amend the Copyright Act to allow a person, in certain circumstances, to circumvent a technological protection measure to make a computer program interoperable with any device or component, or with a product they manufacture. It would allow the owner of a software-enabled device to bypass the lock in order to make it compatible with other applications, even if they are not developed by the original software developer. It would not allow anyone to break digital locks in order to copy or alter the work of an artist or a copyright holder without their consent. Authors have been protected by the act since 2012.

The bill would allow people to break digital locks solely so the program can be used with another platform. This is called interoperability, and it is a very good thing. The bill results from a loophole in the Copyright Act applying to computer programs, also known as software, which are increasingly found in any number of digitized products imaginable.

The bill would also harmonize our Copyright Act with American legislation, ensuring Canadian innovators and businesses remain competitive with small innovators, not just in the United States but in the European Union and Australia. The American regulation currently views that reverse engineering a computer program for a legitimate reason, such as achieving interoperability, falls under the general copyright exception of fair use.

This is what the bill seeks to extend to Canadian innovators. The bill is also complementary to Bill C-244, addressing the right to repair. Whereas the right to repair tends to focus more on the consumer’s needs, interoperability necessarily carries broad implications for how competitive markets can function. There can be an equal or greater impact on the marketplace than from the right to repair. Specifically, it determines if small innovators and entire areas of industry can exist, let alone succeed, as seen in the Nintendo v. King decision.

This case centred around the expansive use of technological protection measures. Increasingly, content creators and copyright owners have turned to technological protection measures to control how their works are accessed and used. Technological protection measures include technology that provides digital locks, preventing individuals from undertaking a variety of actions, such as printing, making alterations or controlling viewing. However, when a customer buys a product, they should be allowed to make alterations or repair the product themselves if they wish. After purchasing it, they are the owner of that hardware.

In the case of Nintendo v. King, Go Cyber Shopping had advertised and offered for sale devices, referred to in the judgment as “mod chips”, a type of computer chip. Go Cyber Shopping offered mod chip installation services as well, which means it had merely offered to sell and install computer chips, including ones a customer may have bought elsewhere. The Federal Court in Canada found these activities constituted a circumvention of technological protection measures and awarded Nintendo $11.7 million in statutory damages and $1 million in punitive damages.

This is why a bill like Bill C-294 is so important. It would allow small businesses who want to assist customers who own a personal technology device to make upgrades, modifications or alterations, or to repair that device. These small businesses would be able to do so without running afoul of overly expansive copyright regulations.

The bill would not only help with consumer technology devices; it would also help many Canadian farmers. As Donna Boyd, president of the Agricultural Manufacturers of Canada, said:

In today’s digital environment, physical product design is increasingly reliant on software, networking and computerization, and farmers must continue to have the freedom of choice to select the equipment that is right for their operations. Canada’s framework for interoperability is outdated and reflective of an era prior to widespread technological advancement, and it is time for meaningful modernization.

By amending Canada’s copyright law, Bill C-294 seeks to provide a clear and limited exemption for consumers and future innovators to enjoy the benefits of interoperability.

A growing number of Canadians believe the Copyright Act is long overdue for an update. Those who deal with copyright and intellectual property, including industry associations, are actively calling for it. This is what Bill C-294 will accomplish, allowing industry to meet modern technological demands.

For the last 10 years, since 2012, Canada’s Copyright Act has enforced technological protection measures to help businesses and creators benefit from their own work, including software. Some companies use this to put digital locks in place, limiting which information their competitors or users can access within their products. Combined with a lack of clarity in copyright law, this can block users from having their machinery or devices interoperate with other equipment, as they were once able to do.

Along with consumers, manufacturers are left with both practical barriers and uncertainty under the current legal precedent if they want to sell their competitive products. This bill will provide a clear, limited exemption for consumers and innovators who simply wish to enable their devices or machinery to interoperate with other equipment, as they were always able to do before.

If passed, Bill C-294 will better support Canadian innovators and consumers to maintain a competitive marketplace while upholding Canada’s copyright framework. I look forward to having the opportunity to vote to send this bill to the Standing Committee on Industry and Technology.

I would like to again congratulate my colleague for bringing forward this important initiative for us to consider. I hope that, as parliamentarians, we can all work together to get this bill passed as soon as possible.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, this is the second time the House is dealing with measures in right to repair legislation and modifications to the Copyright Act. In fact, Bill C-244 was here a bit earlier in the year. It was introduced by the member for Richmond Centre, and we had a fairly healthy debate on that issue. As alluded to earlier, some members had the opportunity to put some comments on the record with respect to that legislation. Many of the things that were said during that debate could also be said for this particular debate. Today, Bill C-244 is still at the committee stage, and I suspect there is going to be a great deal of seriousness in looking at the ways we can improve upon it.

With respect to the member's bill, Bill C-294, the government will be supporting the legislation. More importantly, I think there is a great deal of sympathy from all members on all sides of the House in recognizing the importance of the principles the member is trying to achieve through passing Bill C-294.

Modernizing the Copyright Act is of critical importance. There are certain things one has to take into consideration. Whenever we think of copyright, we like to think it is pretty simple and straightforward. We should be able to do this and that to different products, and there are things in place related to international trade. We can talk about, for example, the trade agreement between Canada, Mexico and the United States. We can talk about international agreements. Copyright does play a very important role in society, and we can look at it from both an economic and a cultural perspective. That is why it is absolutely essential that we have copyright legislation.

The member made reference to modernization, and I think that is, in essence, what we should be looking at, whether it is with Bill C-244 or Bill C-294, the bill we are debating today. They demonstrate that it does not matter what side of the House we are on; there is very much a keen interest in the copyright legislation we have in Canada today. This speaks to the need for us to look at ways to maybe further study the Copyright Act.

The nice thing about Bill C-294, and why we will be supporting it, is that ultimately, by going to committee and listening to the different stakeholders, we can make some changes and, at the same time, still abide by those important agreements that allow for our economy and cultural sector to continue to grow and prosper. It is so very important.

I have indicated that things tend to get a bit more complicated and a bit more expensive, and I recall the days when I could buy a car, pop the hood and do all sorts of wonderful things to it. Believe it or not, I even did a motor transplant of sorts back in the late seventies on a 1976 Mustang. Today, if I pop the hood on a 2022 Mustang, I am not going to touch it. I suspect that if we were to investigate it, we would find TPMs on all forms of things that are locked. Some of that no doubt is justifiable, but other aspects, I would suggest, are not. I like simplicity and to think I own something.

This year we are focused a great deal on agriculture. I remember, from many years ago, the farms out in Saskatchewan. It was truly amazing to see the farmers' abilities to fix equipment.

We see a lot of equipment on a farm, from tractors and combines to cultivators. The ingenuity and expertise there is such that farmers can add something to a piece of machinery that would even make it work better. If something breaks down, they do not have the opportunity to call John Deere or whomever else to get them to come out to the field and fix the machinery. There are issues, and we are talking about hundreds of thousands if not going into the millions of dollars' worth of machinery.

There is a great deal of understanding and sympathy that there are certain aspects where we do need to come down a little harder in recognizing that consumer rights are very important. Consumer rights and competition in society is of the utmost importance, which is why I think that, as legislators, we need to be diligent in terms of what comes before us, with the idea of recognizing that we have a responsibility to look at ways in which we can protect consumer rights and encourage, wherever we can, competition. Through that competition, we are able to ensure that there are better price points and better quality products.

Someone earlier made reference to the fact that when we purchase something we like to think that it is ours. Unfortunately, because of things such as the TPMs that are put in place, a lot of things ultimately go in the garbage a little sooner than they should have. Often it is more practical or less expensive to throw something into the garbage and buy something new in some situations. In other situations, if we had the simple solution of having a third party, or better yet a third party part as opposed to having to purchase a manufacturer's part, it could save us a great deal of money. It could also make it that much more accessible in terms of availability when we actually need to use that part.

When we think of it from that perspective and factor in the issue of competition, at end of the day, there is more that we can look at, which is why I am pleased that not only do we have one but now two pieces of legislation. One is from the Conservatives and one is from my colleague and friend from Richmond Centre in the form of Bill C-244 on the right to repair.

When I spoke on the right to repair, one of the examples I used when debating Bill C-244 was something as simple as a washer and dryer. It is amazing what we see when we go to landfill sites now. We can compare to average usage to the ability to repair. These are the types of discussions that I would like to see at committee, with the idea that we keep an open mind and look at ways in which we can make some modifications to the Copyright Act.

However, we do have to take into consideration how important the Copyright Act is. As I said, it does foster creativity and innovation, which is why we have it. There are also obligations through international agreements. After all, Canada is a trading nation, but we are also a nation that cares deeply about consumer rights, which is the primary reason I think it is important that the bill before us be passed.

[Christine Normandin, Bloc, Saint-Jean, QC]

Mr. Speaker, I agree with you that the time went by really fast. I did not think it would be my turn to rise so soon, but I am pleased to do so.

I rise today to speak to Bill C‑294. I already spoke in April about Bill C‑244, which has the same objectives. If anyone wants to read the speech I gave in April, they can safely apply my comments mutatis mutandis to Bill C‑294 because they still hold true. Perhaps that is what people refer to as recycling and it is completely in line with the bill before us today.

Bill C‑294 seeks to combat planned obsolescence, but what is planned obsolescence?

I want to remind members that the term “planned obsolescence” was coined by American businessman Bernard London in 1932 in an essay entitled “Ending the depression through planned obsolescence”.

At that time, we were in the midst of the Great Depression following the roaring twenties. Mr. London complained in his writings that, because of the crisis, consumers had taken to using products until they were no longer useful, until they were completely worn out. London said this was hurting the economy. As a result, companies began to create strategies to replace items as quickly and as often as possible in order to boost sales. This has led to a form of disposable culture: manufacture, buy and throw away. It has had a very significant impact on the environment.

The main pillars of planned obsolescence are as follows. First, goods are designed to be less durable. We see this happening more and more these days. For example, my washing machine is older than I am and I will do everything I can to avoid having to replace it, which is what my washing machine repairman suggested to me, because they do not make machines like mine anymore. The last time I tried to fix it, it cost me $5 because it is a simple part, but modern machines are so complicated and fragile that they break after five years.

Second, fashion is another pillar of planned obsolescence. People are urged to buy something new even if the version they already own is still perfectly good.

Third, an item can be designed so it is impossible to repair, forcing us to buy a new one. That is what Bill C‑244 addresses. I am very pleased that it passed at second reading because it allows people to circumvent digital locks in order to repair goods that otherwise could not be repaired because of a technological barrier.

Today, we are looking at the possibility of preventing new functionalities from being embedded in a device and rendering it obsolete more quickly. The bill before us today would amend the Copyright Act. In general, the Copyright Act seeks to make it possible for creators to earn a living from their art and to protect their works from being copied or used in a manner that they would not permit. That is a good thing. However, the problem is that it also applies to digital works. A digital work is protected by a digital lock that the Copyright Act has prohibited users from circumventing since 2012.

The work cannot be altered without the consent of the copyright owner. That is a good thing, generally, but it does have a negative impact. For instance, some companies have decided to invoke the Copyright Act to prevent people who own devices running on the company's software from downloading new apps that would require access to the operating system in order to function. The legislation already includes an exception to address this aspect and, since the bill before us contains only two clauses, I would like to go through the bill and explain a little more about the legal process that applies here, since we do not often take the time to do so in the House.

Under the former section of the Copyright Act, circumventing a technological protection measure was prohibited. Circumventing a digital lock is therefore prohibited. The legislation included an exception to indicate that it does not apply to the owner of the program, who has the right to circumvent the lock if it is for the sole purpose of obtaining information in order to make that program interoperable with another computer program.

For example, the person who creates software to run a device has the right to break the lock on another piece of software to ensure that their software works if they want to use someone else's product on their device.

The lack of a broader exclusion in the law means that the owner of a product that has computer software becomes somewhat of a prisoner of the original software owner, who grants himself or herself exclusivity over any new software or applications that might be installed.

Take cellphones, for example. As we know, there are plenty of apps available to download that make our phone much more interesting. Technically, this could be covered by the Copyright Act. Apple could say that they do not want a software creator to break the lock on the Apple phone to ensure their application is compatible. Obviously, this is unattractive to Apple because it would make its phones virtually useless and uncompetitive on the market. Apple therefore does not invoke the Copyright Act, but the fact remains that it could.

The amendment in the bill would add to the existing interoperability exception in the Copyright Act by saying that it:

does not apply to a person who...manufactures a product and circumvents a technological protection measure that protects a computer program embedded in another product for the sole purpose of allowing the person to make the computer program, or a device in which it is embedded, interoperable with [it]

This means that external individuals who create programs have the right to break locks on devices they want to connect to to make sure they are interoperable.

Agricultural machinery is one example that I talked about during my last speech on Bill C‑244. Take John Deere tractors, for example. The days of tractors like my dad's old 1958 Farmall are long gone. My dad still enjoys puttering around with it to plant a dozen rows of corn behind the house. Today's tractors are much more powerful and are equipped with GPS.

The lack of an exception in the Copyright Act prevents companies from doing things like creating software that could be added to the tractor's computer to help with spreading different kinds of fertilizer. That is impossible because John Deere holds the intellectual property rights to everything on the tractor.

That means external suppliers cannot add anything to improve the device, nor can external software be added that might, say, extend the useful life of the things we own.

Let us be clear, the bill does not seek to abolish software designers' copyright. That is being maintained. It does not allow it to be copied, either. It does not facilitate unfair competition from predatory competitors. It just ensures that we can maximize the lifespan of products we already own by adding external components.

Two bills on this topic are being studied in the House. Bill C‑244 addresses the issue of repair. Today, we hope to address the issue of interoperability through Bill C‑294.

Quebec is addressing the sustainably aspect, which is another pillar of programmed obsolescence, through legislation that would assign a sustainability score to objects. Bills C‑294 and C‑244 would ensure that people could not invoke federal copyright legislation to get around Quebec's measure. That is a good thing. Now we just have to work on planned obsolescence in fashion. We hope this will be a pillar that will allow us to have an impact on social awareness. I do not think we are at the point of legislating fashion in the House, but there is still a bit of work to do.

I hope that all these other bills will be an incentive to finalize, in good conscience, our work to counter programmed obsolescence.

[Dave Carey, Vice-President, Government and Industry Relations, Canadian Canola Growers Association]

Thank you for the invitation to appear.

I'm filling in for our farmer chair, Mike Ammeter, who is down the road presiding over a board meeting as we speak.

Global food insecurity is a complex, multi-faceted issue. It involves geopolitics, socio-economic factors and armed conflict. These are forces outside the purview of a farm group and, to a degree, even outside the control of the Canadian government.

Today, I want to talk to you about what I believe we can do from the Canadian farm group perspective to produce more food, feed and fuel to increase our agricultural exports to a hungry world. We have not realized Canadian agriculture's full potential, and many of the greatest barriers to increased productivity are domestic legislation, regulations and infrastructure, items that are within our control as a nation.

In my brief time, I will cover the top five factors that, if addressed, would mean that Canadian farmers would be well positioned to sustainably intensify their production and ultimately grow more products.

One is transportation. We need to increase transparency and confidence in Canada's railways, invest in adaptive and resilient infrastructure and take immediate steps to implement the recently released supply chain task force report.

The top recommendations that would benefit agriculture would be to expand the current 30-kilometre interswitching; to revise the Canadian Transportation Agency's mandate to provide the independence, authority and funding required to deliver on that mandate; to develop a transportation supply chain labour task force with strong agricultural representation; and to increase and improve the supply chain data—it's all for naught if we can't move our products to market.

The second would be around fertilizer. Next to water, nitrogen-based fertilizer is the second most important input to grow canola.

Any reduction in fertilizer emissions must remain voluntary and must focus on incentivizing farmers to adopt additional best practices to improve their already sustainable and efficient operations. Incentives for farmers must be made through the lens of a return on investment to get the best results. Emission reduction must also be measured on an intensity basis as farmers look to increase their yields using the same amount of land to meet current and future demand. We need to support Canada's innovative and sustainable farmers by focusing on increasing productivity, incentivizing best practices and measuring emissions on an intensity and efficiency basis.

Number three is about crop protection products. Canada has a world-class regulatory system and the products that the pest management regulatory agency, or PMRA, regulates have led to significant environmental and economic advancements on farm. These tools protect farmers' crops against pest pressures and disease and play an important role in canola sustainability. Effective weed control paves the way for conservation tillage, increasing soil health, reducing fuel use, sequestering carbon and eliminating up to 750,000 tonnes of GHG emissions per year.

The PMRA transformation agenda has created uncertainty and it challenges Canada's reputation and commitment to science and risk-based assessments. Assessments need to be done in a timely manner based on the best possible science to encourage investment and adoption of the latest technologies to sustainably grow more canola and keep our farmers competitive on the world stage. We need to champion science-based decision-making, restore confidence in Canada's regulatory system and avoid taking a European Union hazard-style approach.

Number four is around plant-breeding innovation. Plant-breeding innovation will play an important role in farmers' responses to global food security and climate change challenges. Farmers need access to the latest seed varieties developed using the latest technologies, such as gene editing. To benefit from these advancements, we need clear, transparent and predictable guidance documents from the Canadian Food Inspection Agency to be released as soon as possible.

Number five is around working capital. Like any family business, farmers want to invest in their operations; however, the capital costs of farming are intensive, with most pieces of major farm equipment costing hundreds of thousands of dollars. The CCGA strongly supports Bill C-234 and commends this committee for its work on moving that through committee stage on Monday. With no viable fuel alternatives and infrastructure in place for farmers to replace natural gas and propane, Bill C-234 provides much-needed economic relief on farm and will ultimately help the environment, the footprint of farmers and their economic viability.

The last piece of legislation we will chat about is Bill C-244, or the right to repair, currently in its second reading. Farmers also need their equipment to work in time-sensitive periods such as during seeding and harvest. The CCGA supports Bill C-244, as it will give farmers the choice of who can diagnose and repair their equipment, saving them critical time and money, and it would help reduce prices by allowing for competition.

In conclusion, it's vital that Canada focus on what we can do to sustainably intensify our primary agriculture production. To do that, we need a legislative and regulatory environment that is predictable and science-based and that fosters investment and innovation.

Thank you for the opportunity to appear today, Mr. Chair.

[Ian Jack]

That's a very good question. We care a lot about both of those issues. It's a very good question; thank you for it.

I would say a few things. First of all, we've also heard testimony that this is happening anyway, regardless of this legislation. Right now you have people going on the dark web and to various corners of the internet to download pirated pieces of software to do some of this themselves. We think that this legislation would surface that and bring it, hopefully, into the legal market. That's one thing we would say about it.

We think there are, as we've also heard, environmental laws. They should absolutely be enforced. However, these are amendments to the Copyright Act, not to environmental..., and I don't think we want environment.... As Mr. Vis commented, it's already broad enough. I don't think we need to be putting environmental concerns into this bill at the same time. That should be dealt with under environmental legislation.

We are not particularly concerned about road safety aspects of this bill because, again, we're talking about legitimate software that is already being used by legitimate players in the industry to repair vehicles, and just making sure through these amendments, this Bill C-244, that we don't put a new block in place—a new padlock, if you will, on access to that software.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Okay.

Computer programs embedded in products are typically licensed to consumers. To retain the right to use the program, they usually must comply with the licence, which may require that they do not circumvent TPMs for any reason. Thus, a person could breach the licence, losing the right to use the program, even if, in this case, the Copyright Act otherwise allows the person to circumvent the technological protection measure.

Given that provinces have legislative powers over contract law, should the federal government engage with them on the matter of restrictive licences—in the context of Bill C-244, obviously?

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you, Mr. Chair.

My questions will be directed toward Mr. Malik and Ms. Spiegelman.

Section 2 of the Copyright Act already and explicitly includes computer programs in the definition of a “literary work”. In your opinion, why does clause 1 of Bill C-244 therefore propose to specify that a computer program is a “work”? What are the implications of that?

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

How do you respond to auto or equipment manufacturers who say that Bill C‑244 could create safety or compliance gaps?

[Ian Jack]

We share that concern, absolutely. That's why we support this legislation. We think it would be, in terms of our industry, a small step forward in making sure that we don't end up in that huis clos of having to go to a dealer that is maybe 200 or 400 kilometres away, depending on the vehicle you've purchased.

As well, I would say that CASIS—and we hear about CASIS—to me is a perfect example of another piège that I would encourage the committee to think about in any amendments that it considers.

What a wonderful story that the automotive industry and the aftermarket voluntarily got together and made an agreement to share information 15 years ago. Well, since then—and it's unfortunate that Mr. Masse is not here today, because he's been on this committee forever and could tell you—year after year, the same story is heard, which is that one side says CASIS is wonderful and working perfectly and the other side says it's irreparably broken.

What is the truth of the matter? We're a third party in this; we don't have line of sight either. However, that voluntary agreement has no review mechanism, no audit mechanism, and there's no third party that looks at it that anybody can go to review it. That's why we've ended up in that situation today.

We have heard talk of—and we could accept—voluntary agreements to potentially share information among industries in order to not be subject to Bill C-244. We think that's where some would like to go with this. We would urge some caution there. If that's where we end up, we think we need to make sure, whether it's ISED or some other body, that there is a regular review.

If a party to a voluntary agreement has an issue with it, what are they supposed to do about it? Again, that's why we don't like what we would consider reverse onus from a previous witness. There's an imbalance here of economic power between an OEM and most in the aftermarket.

Our friends at LKQ may have a bit of money, but they don't have as much money as the multinational auto companies, and anybody else in that industry is going to be even smaller. To us, asking somebody like that to have hundreds of thousands of dollars' worth of lawyers and spend years in court to argue about whether they should have access would be a mistake.

[Raj Malik, Vice-President, Federal Affairs and National Strategic Partnerships, Medtech Canada]

Thank you, Mr. Chair and members of the INDU committee.

On behalf of Medtech Canada, we're grateful to have the opportunity to participate in the committee’s review of Bill C-244. My name is Raj Malik. I am the vice-president of federal affairs for Medtech Canada. Joining me today is Mia Spiegelman, Medtech Canada’s vice-president of regulatory affairs.

Medtech Canada is the national association representing Canada's innovative medical technology industry. We represent approximately 120 member companies that range from small emerging med-tech companies to large multinationals serving the Canadian market, collectively employing over 35,000 Canadians. Medical devices range from the smallest technologies, such as pacemakers, to the largest of diagnostic imaging technologies, such as MRIs, and everything in between.

With our time at the committee today, I would like to share some insights on the current regulations under which the med-tech industry operates and how this relates to our recommendations for Bill C-244 to ensure protections for patients and health care providers are upheld.

Our primary concern with the proposed amendments to the Copyright Act in Bill C-244 is that this would allow for the access to highly sensitive medical technology software by unregulated and untrained service providers. In addition, the amendments would allow for the creation of uncontrolled and unregulated service parts for medical devices, leading to potential patient or health care provider harm.

To be clear, our industry continues to support the availability of federally regulated third party entities to service and repair medical devices. We know this is critical to the functioning of the Canadian health care system.

Medical devices in Canada are heavily regulated by our federal government. Most medical devices undergo a rigorous licensing process that ensures the medical devices sold in Canada are safe for use, and this includes any related software and accessories. In addition, most facilities or organizations that handle medical devices throughout the supply chain are also regulated, such as hospitals, manufacturers, importers, distributors and regulated third party service providers that fall under their umbrella. Through this network, we ensure that throughout the life cycle of a medical device, which can range anywhere from seven to 15 years, the device remains as effective and safe as the day it was approved for sale into Canada.

At this time, third party service providers who provide only a service of repair are not covered under any government quality assurance regulations, which leaves very little protection for our patient and health care provider populations.

As an example of federal safeguards, the Protecting Canadians from Unsafe Drugs Act (Vanessa's Law) was passed in 2014. This legislation was brought forward by the Oakville MP at the time, Terence Young, following the death of his 15-year-old daughter Vanessa in 2000 when she used a prescribed therapeutic product as intended but suffered an adverse reaction.

Vanessa’s Law was enacted to further tighten the post-market surveillance and oversight of therapeutic products. As of 2019, manufacturers, importers and other companies across the supply chain are now required to further analyze and/or gather reports on risks and issues identified after the medical device is sold into the Canadian market. Unregulated third party service providers, on the other hand, are not currently captured under these requirements.

Additionally, unregulated service providers today are not required by Health Canada to adhere to any standard procedures such as proper training of personnel, evaluating parts suppliers, calibrating tools, maintaining records of device service and preventive maintenance or maintaining device design.

The current Copyright Act prevents unregulated third party servicers both from circumventing technical protection measures—TPMs—in our medical devices and from replacement of untested or unapproved repair parts. These protection measures ensure that only highly trained and authorized service providers can access this highly sensitive technology to perform the necessary repairs. These protections are in place to lower the risk of impacting device effectiveness and the risk of causing serious medical harm to patients.

When it comes to medical devices, TPMs are vital to the safety of patients and health care providers, as they are an integral part of what Health Canada reviews during the licensing process. TPMs ensure the device functions properly and alarms appropriately and that malicious actors cannot access patient data. If TPMs are bypassed and software modified improperly, serviced medical equipment can malfunction, causing risk to patients and technicians.

In conclusion, as medical devices are heavily regulated products requiring licences and adherence to robust safety standards, including aftermarket surveillance and reporting requirements, allowing access to unregulated third party servicers undermines existing safety measures that protect patients and our health care providers today. On behalf of Canada’s medical technology industry, we strongly recommend that medical devices and technologies regulated for sale by Health Canada be provided a specific exemption in any proposed amendments to the Copyright Act.

Thank you. We will be pleased to take any questions.