Evidence of meeting #49 for Industry, Science and Technology in the 44th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was copyright.
A video is available from Parliament.
12:35 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Let me turn to Mr. Lawford.
Mr. Lawford, do you agree with that assessment?
12:35 p.m.
Executive Director and General Counsel, Public Interest Advocacy Centre
I'm not as much of an expert as Ms. Lovrics, but I will say that this is the chickens coming home to roost. We have a very aggressive copyright protection scheme that we've agreed to internationally and that I believe the tide is turning on. Consumers and others are starting to see that it's too aggressive. For example, we have people today saying that the hard goods they need to grow food in this country can't be used, because they'll be bricked, and they can't lose those days. That's overreach.
Now, I can't change the international treaties, but what I'm seeing is that any threat to the technical protection measures is seen as some kind of existential threat to the entire copyright regime. There have to be limits somewhere. We're trying to find a place in this bill where it can give some more wiggle room to consumers and to small businesses to actually be able to use the products they paid for and not be tripped up by copyright law. Really, international treaty or not, I think we've got to have some scope here, or this gets ridiculous.
12:35 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Regardless of our international treaties, we know that countries around the world are grappling with this very same issue.
I have a question for both Mr. Hanvey and Mr. Lawford.
When you survey the global environment for this kind of legislation—for example, in places like Australia, the EU, the United States, the U.K. or Japan—what is the rest of the world doing, broadly speaking? Are we going to be left way behind in keeping up with the changes within the copyright environment?
12:40 p.m.
Executive Director and General Counsel, Public Interest Advocacy Centre
I know that the European Union likes regulation. That's the way they're handling this. They believe it's onside for international treaties like WIPO. I think we can move to provide more of a repair right, and there is a middle ground here; there is a middle ground.
The other countries that you mentioned I'm afraid I'm not as familiar with. I know that this debate is mostly going on at the state level in the United States because of their gridlock at the federal level.
12:40 p.m.
President and Chief Executive Officer, Auto Care Association
Certainly. Thank you.
There are numerous initiatives around the globe. You've mentioned many of them. There's the EU. South Africa is another. Australia is another one. Obviously, there's Canada and the United States. We see this as a growing consumer issue as the vehicles become more technological on the automotive side. We are in the process of working with like associations around the globe to come up with a global positioning statement for right to repair. That's under review by some key associations. We should have that by the first of the year.
It is very much a global concern. We are working with our brothers and sisters around the globe in order to bring light to this very important consumer issue.
12:40 p.m.
Conservative
Ed Fast Conservative Abbotsford, BC
Ms. Lovrics, I have just one last question. In your testimony, you suggested that you're looking for legislation to provide for case-by-case assessments. Would you care to expand on that?
12:40 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
That would be the regulatory approach. There would be a framework set out. Certain classes of products would qualify for the right to repair, weighing different factors set out in the framework.
From our perspective, and considering what witnesses have put before this particular committee, it's pretty clear that a one-size-fits-all approach is challenging, owing to the very different considerations that different product categories have. You've heard about medical devices. You've heard a lot about e-vehicles and vehicles generally. You've heard about farm equipment. You've heard a limited amount about household appliances. All of those categories, not to mention the swath of any other products that would potentially be subject to the right to repair, would be painted with the same brush.
Our concern is that basically that's an inappropriate approach. Leaving aside the fact that it doesn't meet our treaty obligations from a health, safety, environmental and cybersecurity perspective, all of those classes of products raise different issues and different concerns. Treating them all equally is a concern.
12:40 p.m.
Liberal
The Chair Liberal Joël Lightbound
Thank you, Mr. Fast and Madam Lovrics.
We'll turn now to MP Erskine-Smith for five minutes.
12:40 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Thanks very much.
I want to start with Ms. Lovrics. My washing machine is broken. I've been at the laundromat. I don't mind being at the laundromat, because there is a nostalgia to it. I was at the laundromat on Concession Street in Kingston throughout my studying of politics and law—I studied there for seven years—so I don't mind being at my local laundromat. I see constituents and have wonderful conversations.
However, I'd like to get my washing machine repaired. It's a Whirlpool Duet, I think, and it's many years beyond its warranty. Surely, as a consumer, I shouldn't be restricted to contacting Whirlpool and not having some service repair person who can fix it.
I guess when I'm reading the legislation and it says specifically that a TPM would not.... It says:
Paragraph 41.1(1)(a) does not apply to a person who circumvents a technological protection measure that controls access to a computer program if the person does so for the sole purpose of diagnosing, maintaining or repairing a product in which the computer program is embedded.
Why in the world would we care about.... Maybe going in the opposite direction, shouldn't we care? Why would we want to prevent a marketplace where individuals would diagnose, maintain or repair their products?
12:40 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
My dishwasher is broken right now, so I can completely empathize with you.
I don't think we're proposing that the right to repair, especially given that this is part of the mandate letters, not be permitted. We're proposing amendments to that provision. You're dealing with the first provision, which is the direct right to repair. Our submissions, which will follow very shortly, are the very small changes to the language in that provision—
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
What language? I want people to be able to diagnose their problem. I want them to be able to maintain or repair their device.
What language are we going to change?
12:45 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
I will read our current proposal as follows: “repairing such consumer product so that it performs according to its original specifications and any changes to those specifications authorized for that consumer product”.
I think your question raises two issues. One is that we're talking about a washing machine and a dishwasher, but this particular provision would also apply to medical devices, as well as vehicles and the rest of it, and different factors raised.
One piece is let's figure out what categories of product should qualify, and the second piece is ensuring that it's abundantly clear that the right to repair is, in fact, just that. It's the right to repair the product and not to mod it.
Admittedly, a washing machine may not raise the same modification issues as vehicles that have emission controls or other—
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
Hang on a second.
Copyright exists for a purpose, and it doesn't exist for consumer protection purposes. It doesn't exist for health protection purposes. Copyright exists for a particular purpose. It should protect those particular purposes. If there are other consumer protection issues to be resolved, they can be resolved in a different forum and via different regulations and legislation.
However, for this purpose, the core idea is that copyright protection—which exists for particular reasons—shouldn't get in the way of consumers diagnosing and repairing their goods—
12:45 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
We agree.
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I'm glad, but I would say those other ancillary issues should be resolved, and copyright is not designed to protect those ancillary issues.
The second piece I want to get to is.... I don't mind watching YouTube videos. I don't want to spend a lot of time watching YouTube videos to repair my devices. I don't have a lot of time in my life. I have two kids. I have a six-year-old and an almost-three-year-old. I don't have time. I'm generally a pretty busy member of Parliament. Many people are busy with their own lives.
I'm not going to repair my washing machine. I'm not going to repair my phone when the battery needs to be replaced. I'm going to go to a third party service.
When we look at the second section, proposed subsection 41.121(2), why do we not, as a matter of consumer protection and lowering costs for consumers, want to empower a repair market?
12:45 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
I think maybe you've misapprehended our submission. First, we agree with the right to repair. The problem is with the way this bill is currently drafted. Amendments are required, so that it doesn't apply to everything.
The second point is that the bill as drafted does not enable service providers. There are three types of circumvention prohibitions. One is for direct circumvention, two is for service providers and three is for technology or devices. The current bill does not permit a service provider. It permits you, as an individual, to tinker with your dishwasher and it permits third parties to come and hack it and try to figure out how to tinker with your dishwasher, and then put a device or tool on the market so that you can do it yourself.
We agree that there should be an aftermarket service provider industry. The bill doesn't actually accomplish that.
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
It does, though, because proposed subsection 41.121(2) creates the possibility of individuals manufacturing, importing or providing technology, devices or components for the purposes of circumventing a TPM for diagnosis, repair and maintenance.
Proposed subsection 41.121(1) is specifically for an individual to do so. Of course, as an individual, I can contract that out—
12:45 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
It's a technical—
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
The two provisions, read together, would absolutely create a repair market.
12:45 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
They don't, actually. This is a technical issue. To be clear, I'm speaking to you from a legal technical perspective.
There are three circumvention provisions within the act. One says you can do it yourself—direct circumvention. Two says service providers can circumvent. Three says you can sell devices that help to circumvent. The bill only deals with one and three. It does not have an exception for two. There's actually a gap in the bill—
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
We should add an exception for two, to make it absolutely crystal clear.
12:45 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
Yes, and remove the exception for technology devices being put onto the market.
The challenge we have with respect to the current bill is that you're permitting anti-circumvention devices to be put on the market, purportedly for the purpose of facilitating repair, but once they're on the market they can be used for any purpose. We support shifting the focus to the other technical provision that would permit service providers to come into your home and to fix your dishwasher. The bill, as drafted, doesn't actually achieve that.
12:45 p.m.
Liberal
Nathaniel Erskine-Smith Liberal Beaches—East York, ON
I got you, so I think we're in agreement. I really appreciate the answers.
We want a situation where an individual has a wholesale right, so long as it's for repair, diagnosis and maintenance. We want a system where we are empowering a service market to deliver that repair market for maintenance, diagnosis and repair. We want to make sure there is technological innovation in this space, but we don't want that innovation to be used for anything other than diagnosis, maintenance and repair. But, otherwise, the way we're going in the right to repair is as fulsome as can be realized.
12:50 p.m.
Chair, Copyright Policy Committee, Intellectual Property Institute of Canada
Please review our proposed amendments. There's a lot of nuance in what I'm saying.
The short answer is that we don't agree with technology being put on the market. We do agree to pivoting to service providers. We also agree with amending the bill such that it would facilitate a right to repair, but that there be some lens on what consumer products qualify. This committee has heard from various industries related to a series of different risks and concerns, based on the industry.
From our perspective, the bill should reflect some form of differentiation. There shouldn't be a one-size-fits-all approach. My dishwasher raises very different concerns from a self-driving vehicle—which I don't have, but wish I did.