Industry Committee on Oct. 3rd, 2018

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We're going to go to Mr. Graham. You have seven minutes.

[David de Burgh Graham, Laurentides—Labelle, Lib.]

Thank you.

I understand Mr. Lametti has a quick question before it comes back to me.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you.

The question is for Mr. Hilchie.

I think you would find a lot of sympathy for using technological protection measures to protect the game itself, in particular, if you're moving to an online environment.

If the game has to be played on a particular kind of box, how far should the technological protection extend? I know you have the Federal Court decision in your favour, but should a TPM prevent you from using a box to play any kind of game? You have a physical box that perhaps might be better dealt with under the realm of patent. That's extension two. Then, extension three, should a technological protection measure be used—that same kind of protection—to prevent a farmer from amending the copyright-protected material that happens to be on his tractor, and to not be able to use it and get along with it?

At what point should we be drawing lines?

[Jayson Hilchie]

Those are two good questions.

With respect to the video game console—and again we do have the Federal Court decision in our favour—in that particular case, Nintendo was arguing that the games they make for that console should only be played on that console and that console should only play the games that they make, and vice versa.

This person was arguing that, essentially, technological protection measures through an exemption for interoperability would allow them to essentially play home-brew games or independent games on the box. There's really no position in any of the major video game console makers' business models right now that doesn't involve working with small independent developers to put content on their box. They're all very much in competition with each other. Exclusives in our industry are now a very, very big thing. If there is a game that should only be played on an Xbox, then there has been a significant financial investment to make that game an exclusive on Xbox, and I see no reason why a TPM should not protect that ability to do so.

With respect to the farmer, I don't know whether I'm qualified to answer that question, but I take your point.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

[Inaudible—Editor]

[Jayson Hilchie]

Yes, I will.

[David de Burgh Graham]

Let the record show that Mr. Masse doesn't think he has a real job. That's just a point there.

I'll stay on TPMs, which Mr. Lametti has gone into at length. The fair dealing exceptions apply to a whole lot of things. There are many situations where you have fair dealing exceptions. You're asking for a new one to allow aggregate data analysis. If there's a TPM on the data, should the exception still apply? I am asking all of you who advocated for this.

[Paul Gagnon]

Around the exemption for information analysis is the theme of lawful access. I don't think my presentation made that clear enough, but we see lawful access as an important component of that. It's not about undercutting business models and accessing that data through illegal means or means that are not authorized.

The counterpoint to it is that we have to also make sure that the right is effective. If I'm legally accessing a work through a contract, that contract should not have a provision forbidding that informational analysis either.

I don't think the exemption that we're stating is required necessarily means that it needs to be unlawful or completely reckless access to works and data, because that would not respect the balance for the act between rights holders and users' rights.

[David de Burgh Graham]

If somebody produced something that has a TPM on it, that's locked, TPM definitions tell us that the fact that it's on a computer could be defined as a TPM in the first place.

My simple question is, if somebody has a TPM and you want to access that data for your analysis, should the exemption apply, or should the TPM take precedence over the fair-dealing exemption?

[Paul Gagnon]

I'm not aware of court cases that have resolved this issue yet. I'd tend to say that the TPM would probably mean that lawful access is not mandated.

[David de Burgh Graham]

Should reverse engineering itself be legal?

[Paul Gagnon]

I think the act provides for clear rights on reverse engineering in clear, specific settings such as for interoperability or security purposes. The act accepts that there are purposes that override this and allow for a certain form of reverse engineering.

For citizens in the digital world, these kinds of provisions are somewhat important to make sure that we're not locked into platforms we no longer can analyze or control, but in a very limited context.

[David de Burgh Graham]

Are there circumstances in which you believe reverse engineering should not be legal?

[Paul Gagnon]

The act right now strikes a good balance in identifying specific cases where reverse engineering makes sense. One example is security measures to identify the underlying security structure, and you can look to another example on interoperability. That gives consumers a good deal of.... As you saw with Mr. Lametti's question, there are still interrogations as to whether that's enough freedom, but in limited context, we can have these purposes and be able.... I wouldn't argue for a broad reverse engineering right.

[David de Burgh Graham]

Do we have a shortage of software programmers, people qualified to do that, in the world right now? That question is for all of you.

[Paul Gagnon]

In the field of AI, we definitely have a shortage of AI researchers and people skilled in the art, definitely.

[David de Burgh Graham]

Okay.

I worked in the high-tech industry for quite a long time. I'm still involved in it and have been for over 20 years. I've noticed that the people I'm involved with are largely the same people who I was involved with 20 years ago. What we all have in common is that we took our computers apart in the basement. We knew how the things worked. I remember using hex editors to hack games. It was fun to do.

The generation today doesn't have that access. They don't have the access to the machines, which you can't take apart anymore. Is that a problem, and can we use copyright to address it so that the next generation actually knows how these machines work and can develop into the next generation of developers?

[Paul Gagnon]

I think IP statutes, whether it is the Patent Act or the Copyright Act, do give some space for private study and research. Research exemptions under the Patent Act can allow for this type of basement hacking. Definitely the commercial exploitation of that hacking would be off-limits.

In the field of AI, we're lucky that we're really in the world of open source software. It's a very collaborative community. Ideally we can tinker out in the open and learn from that and share that knowledge with everyone else. That's a bit of a counterpoint to the basement analogy.

[David de Burgh Graham]

Thank you.

[The Chair, Liberal, Dan Ruimy]

Thank you very much.

We have time for a quick question from Mr. Lloyd.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Thank you. I appreciate your coming out here today.

I have a question for the Entertainment Software Association. A lot of people are using mods these days with games. Is there any concern from your association that mods are creating copyright infringement issues?

[Jayson Hilchie]

When you're talking about mods, modified games, yes, absolutely there is.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Is there a huge issue with copyright there?

[Jayson Hilchie]

Yes, it's essentially hacking a game. It's bypassing the anti-cirumvention.

[Dane Lloyd, Conservative, Sturgeon River—Parkland, AB]

Would you agree that there are some legitimate uses for mods? Some mods can be creative—