Industry Committee on Dec. 5th, 2022

[William Hanvey]

However, today's vehicles are technological wonder pieces. They generate 25 gig an hour of data that is received by the OEMs telematically. It's transmitted wirelessly. I wrote an editorial several years ago in The New York Times about how your vehicle knows how much weight you've gained. There are even data points for when you sit on your seat. Your seat is a scale in order to properly moderate the airbag deployment. That type of data is transmitted back to the original equipment manufacturers, unbeknownst to the consumers.

There are really two issues at play here. We are advocating for the consumer to be able to choose where their vehicle is being repaired by having the independent repair shop access repair and diagnostic data. The second is the awareness of the consumer of this data that could potentially be sold by the automakers, unbeknownst to the consumer.

Who owns the data? Right now, the consumer does not have a say in terms of where that data goes, so I would ultimately say that at this point, from an automotive perspective, that telematic data is very much owned by the original equipment manufacturer.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

I recently saw a news report about a Quebec car owner who had sold his vehicle, which ended up in the United States. The reporter went to see the original owner of the vehicle, as well as the new owner. From an application on his phone, the original owner was able to lock, unlock and start the vehicle, which was located far away in the United States.

That kind of a situation is why I decided to keep my old car. Given what these technologies do, shouldn't the information generated by the purchased asset also belong to the owner?

Witnesses have told us about the aftermarket parts industry, local garages and mechanics. Since my car is no longer under warranty, I can go to the local garage. Those witnesses are concerned that this industry will disappear.

Do you share that view?

[William Hanvey]

That's a significant threat to the independent repair shops today, and on the data, there are actually two issues, as you pointed out.

Number one is the ability to access the data in order to properly repair and maintain that vehicle, and then there is the second issue about parts utilizing software specific to that vehicle itself. In other words, will you be able to put into a vehicle a replacement part that is code-associated with it that the OEMs would not approve? They would actually reject that part, even though that part may be made by the same supplier. If the OEMs don't allow that access with that coded part to be put on, it would be almost like an organ rejection for an organ transplant.

There are two things going on: the access to the data and, secondly, part specifics that are coded to the specific automobile.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Do you think the bill, in its current form, has any benefits or corrects what is currently happening? From the perspective of the issues we've just discussed, how do you see the bill?

[William Hanvey]

I think the view in many ways addresses some of the underlying issues that we as an industry have been advocating for on behalf of the consumer for a very long time.

Is there always room for improvement? Certainly from an industry perspective everybody would like to include their particular portions, but from an overall perspective, I think it's a very important piece of legislation for consumers in Canada.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Do I have any time left, Mr. Chair?

[The Chair, Liberal, Joël Lightbound]

No, Mr. Généreux.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Thank you.

[The Chair, Liberal, Joël Lightbound]

There may be some time left at the end. Thank you.

I now give the floor to Mr. Fillmore for five minutes.

[Andy Fillmore, Liberal, Halifax, NS]

Thank you, Chair.

Thank you to the witnesses for giving us your time and expertise today.

We heard from Mr. Hanvey that owners, not manufacturers, must be the owners of their own data. We heard from Mr. Dickison that owners must be able to circumvent TPMs to effect repairs, not modifications, where and how they choose. It's literally the right to repair. Mr. Hatfield had some powerful language about protecting the rights of consumers over the profit of corporations. I agree with each of these propositions.

I did disagree with one of the amendments proposed by Ms. Lovrics, which seemed to want to shift the burden of proof from the owner when it comes to circumventing a TPM. I believe the burden really should be with the manufacturer to show why and when the TPM should not be circumvented.

In other words, the sovereignty of individual must always come before the sovereignty of the body corporate. That's where we need to get to with this bill. We want to get the bill to a place that achieves those things.

Mr. Hanvey and Mr. Lawford, how can we ensure that TPM circumventions ensure the right to repair, but protect against potentially dangerous modifications? What do we need to change in this bill to achieve that?

Mr. Lawford, you're in the room. Would you like to go ahead?

[John Lawford]

Again, I think you have to go back to what we're talking about in terms of what “repair” means. If the concern is that repairs that go beyond the original manufacturers' stipulations for how the product is supposed to operate so that it's overclocked or modified in some way that's not in the original specifications, I can see that being offside.

That kind of definition of “repair” to restoring to the manufacturers specifications is a good modification, I believe.

Does that answer that part of the question?

[Andy Fillmore, Liberal, Halifax, NS]

It does. Thank you, Mr. Lawford.

Mr. Hanvey.

[William Hanvey]

I would concur.

We're primarily interested here in the diagnostic and maintenance data. We're not necessarily interested in improvements or enhancements to the code itself or to the underlying code that's associated with the vehicle. We want the repair and diagnostic data specifically in this particular piece of legislation.

[Andy Fillmore, Liberal, Halifax, NS]

Okay. Thank you very much.

Mr. Hatfield, does the bill as drafted ensure consumers will own and have access to their own data in absolute terms in the way that they want or do you feel that amendments are required right now?

[Matthew Hatfield]

I don't think this bill covers that in itself. I think we need changes under privacy reform with Bill C-27 to also guarantee that.

I do want to flag something in terms of the question of what a repair is. I think focusing on original functionality might be worth looking at, rather than the exact state that the manufacturer handed it off in. Looking at the use case where a manufacturer goes out of business or stops supporting a device, you might need to “modify” the device just to provide security protection or get it up to the standard that the device is intended to operate in.

We should be looking at the consumer's relationship to the device and making sure that looks more or less the same—not necessarily the manufacturer's code.

[Andy Fillmore, Liberal, Halifax, NS]

Good. I was hoping to uncover some discussion around the distinctions between repair and modification. That's extremely helpful.

If there's a deeper dive on it that you feel you want to submit to the committee for the record, we'd be most grateful indeed, Mr. Hatfield.

Ms. Lovrics, you are seeking three amendments. I want to ask you about your exemptions first. Then if there's time, come back and list off the three amendments, if you could.

To start with in this question, which exemptions are you seeking? I think you mentioned several classes of products? Can you talk to us about the exemptions you're seeking, please?

[Catherine Lovrics]

We would set out a test for what products qualify. Under the proposal we were aligned on, that would be pushed to a regulatory approach. If that's not the case, we would recommend that the legislation minimally set out the factors that should be considered in exercising the right to repair, so that it's not a blanket.

To be clear, IPIC approaches this from a technical perspective. We're looking at treaty compliance and the language of the bill. We're not prescribing what products should or should not qualify. We are prescribing what factors should be considered in assessing what products should or should not qualify.

[Andy Fillmore, Liberal, Halifax, NS]

Okay. Thank you.

Could you restate the three amendments that you mentioned in your testimony earlier?

[Catherine Lovrics]

We will be following up with a brief that encloses the amendments, but the first, from a 30,000-foot level, is to put parameters surrounding what it means to repair. The approach the committee aligned on was approved specifications, or original, or any changes to those specifications authorized for a particular product, as opposed to a focus on functionality.

Admittedly, the committee didn't look specifically at the issue of functionality versus specifications, so we could certainly take that away and weigh it.

The second, which is very important, is shifting from permitting technology or devices, so an amendment.... There are three types of prohibitions against circumvention. The first is direct circumvention—the consumer can do it. The second is service-provider circumvention. The third is whether or not you can put anti-circumvention technologies—basically, hacking devices—onto the market. The current bill is the first and the third, but not the second.

We would like the bill to be amended so that it pivots and does not permit circumvention technologies to be put on the market, but instead provides an exception for service providers, to enable the right to repair. The current approach, from our view, in terms of technologies, raises treaty compliance concerns and is also out of step with our trading partners.

Moreover, per the witnesses before this committee, most witnesses spoke to service providers, and right now the bill does not enable that at all.

The third is to put parameters, which I mentioned, around what it means to qualify as a consumer product, or as a product, under the bill. We set out various factors, aimed, really, at addressing treaty compliance, including.... I take your point about the way the approach is, but the reality is that our treaty obligations do require that the TPM be demonstrated to have a substantial adverse effect on non-infringing uses of copyrighted works. I do think that with the way our treaty obligations stand, at least currently, that is a requirement.

That is one of the factors, namely, that it would in fact be a right to repair and would not enable non-infringing uses; that the market for the work is not adversely affected; and that we would also encourage there being some general catch-all around not creating concerns surrounding consumer health, safety, and environmental concerns, cybersecurity risks, and impairing security safeguards or exposing confidential information, to the extent that that factor can be weighed.

[Andy Fillmore, Liberal, Halifax, NS]

Thank you very much.

I think I'm out of time.

[The Chair, Liberal, Joël Lightbound]

Yes, you are, Mr. Fillmore. Thank you very much.

We'll now turn to Mr. Fast, for five minutes

[Ed Fast, Conservative, Abbotsford, BC]

Thank you very much to all of our witnesses.

Ms. Lovrics, you referenced the importance of the government's putting into place a broader framework for the treatment of TPMs and other related IP, including consumer information. Section 41.21 of the Copyright Act already gives the power to government to effectively make changes to Canada's anti-circumvention rules.

The government, so far, has chosen not too, and has effectively left it to individual MPs, such as messieursMay and Miao, to bring forward specific legislation.

When it comes to setting up a framework, I agree with you that there has to be a broader framework that more comprehensively addresses this challenge. Do you prefer that it be done through legislation as we have before us—Bill C-244—or that it be done through regulation, which the government already has the power to do?

[Catherine Lovrics]

First and foremost, the committee is aligned that this be done through regulation. However, if that doesn't occur—if the political will is not to move to a regulatory-making approach to what products qualify—we do think it is imperative that the legislation be updated to set out a framework that addresses many of these concerns.

[Ed Fast, Conservative, Abbotsford, BC]

Your testimony, Ms. Lovrics, was that Bill C-244 may violate our CUSMA and WIPO treaty obligations.

Did I get your testimony right?

[Catherine Lovrics]

That is correct. We are concerned that, as currently drafted, Bill C-244 and the approach it takes would not adhere to our treaty obligations.