Industry Committee on June 22nd, 2021

[The Chair, Liberal, Sherry Romanado]

Good morning, everyone. I now call this meeting to order.

Welcome to meeting number 48 of the House of Commons Standing Committee on Industry, Science and Technology.

Today’s meeting is taking place in a hybrid format, pursuant to the House order of January 25, 2021. The proceedings will be made available via the House of Commons website. The webcast will always show the person speaking, rather than the entirety of the committee.

To ensure an orderly meeting, I'd like to outline a few rules to follow. Members and witnesses may speak in the official language of their choice. As you know, interpretation services are available for the meeting. Please select your preference at the bottom of your screen.

Again, before speaking, please wait until I recognize you by name. All comments by members should be addressed through the chair. Of course, when you are not speaking, your microphone should be on mute.

As is my normal practice, I will hold up the yellow card for when you have 30 seconds remaining in your intervention, and I will hold up the red card for when your intervention time has expired.

Pursuant to the order of reference of Wednesday, June 2, 2021, in the first hour of the INDU committee meeting, we will be meeting to begin our study of Bill C-272, an act to amend the Copyright Act, concerning diagnosis, maintenance or repair.

I'd like to now welcome our witnesses to INDU. We have with us today, Mr. Bryan May, member of Parliament for Cambridge and the sponsor for the bill.

With that, we will allow the member to present his bill for five minutes and [Technical difficulty—Editor].

MP May, you have the floor.

[Bryan May, Liberal, Cambridge, ON]

Thank you very much, Madam Chair.

I thank you all for the invitation to speak to Bill C-272, my private member's bill. Most importantly, thanks to everyone who voted for the bill at second reading, bringing the bill to the INDU committee. I look forward to hearing your questions and discussing the bill.

As you know, the bill passed second reading with unanimous support in the House, and it has garnered interest and support from individuals, businesses and environmental and technological activists from across the country, and in fact, internationally. I trust that you all recognize the significance of the bill and realize its potential, as I have. I want to say that I'm happy to discuss amendments and ways to strengthen the bill, and I hope there is ample opportunity for me to hear your thoughts on the legislation.

Bill C-272 addresses some concerns that the Copyright Act is being used and interpreted in areas far beyond its scope—in particular, the provisions of copyright that are actually able to prevent the repair of digital devices and systems, even when nothing is being copied or distributed and where the owner actually owns the device.

The Copyright Act contains certain mechanisms that make it impossible—or extremely difficult—for consumers to repair their own goods. Technological protection measures, or TPMs, are used to protect the intellectual property found in devices. TPMs can inadvertently prevent repairs and can shut out independent repair shops, home DIY repairs and replacement of simple parts. This system can even prevent repairs after the company has gone out of business, because breaking TPMs would still be illegal even if the company was no longer making the product and there were literally no other options for repair or replacement.

This goes against everything that Canadians understand, instinctively, when they purchase something. As technology becomes more sophisticated, and with the introduction of digital systems integrated into these products, there are technological protection measures embedded by the Copyright Act that can prevent any repairs, even simple ones that consumers should be able to complete.

If passed into law, this bill could change the repair landscape entirely. Imagine when your smart appliance breaks down. You would not have to wait for a licensed repair person with the TPM bypassing passwords or tools to come to your house. You could order the part yourself, install it yourself or hire another company to do it for you.

This keeps the control of the product in the consumer's hands and reduces the manufacturer's ability to leverage their product long after it has been sold, which is not only inappropriate but also anti-competitive. A case could be made for those acts to be illegal under Canada's Competition Act. As a result, Canadians would not have to face the dilemma of throwing out their quality—and sometimes new—products as a result of a small malfunction. This would have drastic effects on our waste and would increase our ability to work efficiently with our smart devices.

I'm aware that other private members' bills have been brought forward in the past to address concerns about right to repair. Please be aware that this bill is substantially different in structure and design, and that's on purpose. I've aimed to carve out a very specific and limited allowance for consumers to circumvent a TPM, but only for the purpose of diagnosis, maintenance or repair.

I am well aware of the legislation that must be moved by the provinces to address some other components of right to repair, including availability of spare parts, mandating repair manual availability, instituting additional measures to protect consumers and regulating the sale of goods that do not allow for repair.

The key here is that Bill C-272 is a precursor to many of these other items. Without a change to the Copyright Act, those other legislative and regulatory changes will not have their desired effect because TPMs cannot be bypassed for repair. This bill is important because it's not a matter of “if” but of “when” this legislation will be required.

Legislation for right to repair has been considered at the provincial level, and it is in place or being written in the EU and across multiple jurisdictions in the United States. With our shared interest in avoiding waste and keeping consumers in control of their own products, we must make room for repair.

Thank you for your time today, Madam Chair. I would be happy to answer any of the committee's questions.

Thank you.

[The Chair, Liberal, Sherry Romanado]

Thank you very much, MP May. We're happy to have you here at INDU.

With that, we'll start our round of questions.

Our first six-minute round goes to MP Poilievre.

You have the floor.

[Pierre Poilievre, Conservative, Carleton, ON]

Thank you, Mr. May.

I've carefully read your bill and, frankly, I think you have it right. I think there are two extremes in this debate. One is that the government, as we do now under the Copyright Act [Technical difficulty—Editor] to respect the exclusive repair rights of the vendor. The other is to ban the vendor from applying technological protections.

You've done neither of those things. What you've done is basically remove the prohibition on circumvention technology to allow those customers who want to attempt to repair something themselves and to attempt to go around a technological protection measure to do that. By the amendment to the Copyright Act that you propose, effectively, I think you are legislating the principle of “willing buyer, willing seller”. I think that's where we need to be on this.

That's more of a comment than a question. I'd invite your response to it.

[Bryan May, Liberal, Cambridge, ON]

Thank you, Mr. Poilievre.

I agree that this is not an overreach. This is actually my second opportunity to present a private member's bill in the House. I learned a lot in the first go-round.

When we drafted this bill, we wanted to make sure, first, it was broad. I had no delusions of grandeur that it would receive unanimous support in the House, but I was very pleased to see that. We also wanted to make sure that it would support all Canadians, and it would be a step in the right direction. I think a lot of times private member's bills are drafted trying to get across that finish line, and when we came across this issue, we very quickly realized that was not how this was going to work. We needed to take a step forward and give the provinces the opportunity to determine what the landscape of “right to repair” was going to look like for them.

I think the bill does that. I think the bill is reasonable. It has an approach that, as you say, Mr. Poilievre, is fair. I think that's quite frankly why we were able to achieve that unanimous support in the House.

[Pierre Poilievre, Conservative, Carleton, ON]

Right. There's nothing in the bill, for example, that would ban a vendor from including a clause in a warranty agreement that requires the buyer to bring the product in question back to the vendor for repair and maintenance. That would still be allowed under this bill, would it not?

[Bryan May, Liberal, Cambridge, ON]

Yes, this bill does not get into the architecture of what a “right to repair” landscape is going to look like. This allows for that conversation to be had at the provincial level.

[Pierre Poilievre, Conservative, Carleton, ON]

Right. At the same time, if a vendor puts in place a technological protection that would attempt to prevent the consumer from repairing the product themselves, what this would do is say that the consumer can try to get around that technological protection and repair their own product at their own risk, and then it really becomes a decision for the customer on whether or not to respect the technological measure put in place by this vendor, or to try to find some way around it. Is that a fair characterization?

[Bryan May, Liberal, Cambridge, ON]

Yes. This bill specifically carves out that exemption within the Copyright Act so that breaking a TPM for the purposes of diagnosis, maintenance and repair is not illegal in Canada.

[Pierre Poilievre, Conservative, Carleton, ON]

Right. At the same time, it doesn't prevent vendors from putting in place those protections that keep customers from repairing the product.

[Bryan May, Liberal, Cambridge, ON]

That's correct.

[Pierre Poilievre, Conservative, Carleton, ON]

There's no perfect world here, but at the end of the day, I think what your bill does is that it allows the customer to say, “Listen, this is the technological protection that the vendor has put in place to prevent me from repairing my product. I can decide whether or not I want to buy it, given that it has that protection,” or “The vendor wants to put in place a requirement warranty that I bring my tractor or smartphone back to him for repair. I can look at that warranty agreement, and if I don't like it, I can go and shop somewhere else, but at the end of the day, the government's not going to ban me from attempting to go around the vendor and repairing the product myself.”

That's a summary of what effect this would have.

[Bryan May, Liberal, Cambridge, ON]

Yes. It really touches on the fact that the Copyright Act has been used in a way that was never intended.

[Pierre Poilievre, Conservative, Carleton, ON]

That's right.

[Bryan May, Liberal, Cambridge, ON]

When you had a refrigerator 20 years ago and a compressor went on that refrigerator, you could fix it without having to break the Copyright Act. Now that compressor is attached to a motherboard that has a technological protection measure in it that doesn't even allow you to replace the part that has nothing to do with the technology side.

I think this is where time and the development of these smart devices has required a rethink.

The industries have figured out a way to use the Copyright Act to their benefit, but it was never intended that way.

[Pierre Poilievre, Conservative, Carleton, ON]

I know I'm out of time, but if I can conclude, no, in fact, I don't think this is copyright.

[Bryan May, Liberal, Cambridge, ON]

It isn't.

[Pierre Poilievre, Conservative, Carleton, ON]

If someone was trying to break into the machine to copy the intellectual property and create their own similar machine and sell it, stealing the IP of the vendor, that would be one thing, but what you're talking about here is just letting them repair that machine.

I agree with you. The section you're removing never really belonged in the Copyright Act.

Anyway, that's good work on your part. Thank you.

[The Chair, Liberal, Sherry Romanado]

Thank you, MP Poilievre.

We'll now go to MP Jowhari.

You have the floor for six minutes.

[Majid Jowhari, Liberal, Richmond Hill, ON]

Thank you, Madam Chair.

To my colleague MP May, welcome to our committee and thank you for the great work you're doing in your riding and on the legislative side.

I was one of the fortunate MPs who managed to [Technical difficulty—Editor] the bill when it was introduced in the House. What I found interesting, and I would ask you to explore it for us, is the savings that's associated with the cost of maintenance, the total cost of the equipment. It's under the consumer “right to repair” legislation.

Can you give the committee an estimate around the potential cost savings through this legislation?

[Bryan May, Liberal, Cambridge, ON]

MP Jowhari, thank you for the question. I do not have specific data regarding savings on this. It's a very good question, but it's one that, hopefully, if we have other witnesses appear on this subject from industry, they might be better able to answer.

The obvious reality is that consumers make their choices based on a lot of different factors, but the number one choice they make is based on price and cost. We know that if something is cheaper to replace than it is to fix, we'd rather have the new one and the other one goes out to the curb for the dump.

That's what we're seeing here, a system that allows the manufacturer of that device to control the cost of repair, so it's in their interest to make that cost of repair so significant that somebody is consciously looking at the cost of repair versus replacement and is looking to replace it.

This really goes to the next step of the bill, which is, of course, the environmental focus.

[Majid Jowhari, Liberal, Richmond Hill, ON]

I just want to share with you that, in our household, we are dealing with a dilemma. We moved into our house about 22 years ago. The washer and dryer that we have are older versions, but we have the flexibility to be able to repair them because there are a lot of mechanical parts.

We're looking to replace one of these appliances with a newer model that is enhanced electronically. It helps us with more energy efficiency, but when we look at the warranty, if we need to repair it, basically we have to either replace half of the machine or go look at the new one. The cost savings is not only as it relates to the repair but also to other efficiencies that you would be able to gain by upgrading to a newer model and being able to benefit from electrical efficiency, energy efficiency.

[Bryan May, Liberal, Cambridge, ON]

I understand that. I think there's research out there and I'm afraid I don't have it at my fingertips, but there is research out there that shows that's a bit of a misnomer in some cases, though not in all cases. We know that the energy it requires to produce the new product is significant, and quite frankly in Ontario the efficiency of the energy that's provided to run that device has in fact become a lot better. They've shortened that gap as well.

I think the advantage of replacing something because it's more energy efficient definitely is a factor, but not nearly as much as the cost of a repair to that device.

[Majid Jowhari, Liberal, Richmond Hill, ON]

You mentioned that the bill has received some international attention. I'd really like to get your input around how this bill would affect our nation's compliance with international treaties such as the CUSMA and the World Intellectual Property Organization, WIPO, copyright treaty, which provides protection on TPMs.

[Bryan May, Liberal, Cambridge, ON]

I thank you for that question. It's one that I've heard raised, but I haven't actually discovered what the challenge would in fact be. I know we clearly have to do our due diligence and make sure that we're not in some kind of breach of a treaty or a trade agreement.

I will point out that the U.S., the EU and other countries are in fact in the process of moving forward on legislation like this. In fact, in the EU they're setting new standards for repairability and ensuring that packaging clearly marks where a product can or cannot be repaired.

Again, that's further down the line when it comes to what the landscape will look like as per any further provincial measures and legislation and regulations that are passed, but this is happening. I think we need to be prepared and one of the ways we can be prepared is to eliminate the barrier of copyright so that the provinces can move forward appropriately.