Industry Committee on Feb. 8th, 2023

[Dr. Alissa Centivany]

I would have to say that's not my understanding of the bill that's being proposed, in the sense that it would equally apply to consumers who are do-it-yourselfers and it would enable third party repair technicians and others to be able to circumvent the TPMs as well. Essentially, what we would be doing if this bill were to be passed is giving consumers the choice of either tackling these repairs on their own or choosing a service provider to do that for them.

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

That's helpful. Thank you.

Another question the analysts provided to us is as follows. “Computer programs embedded in products are typically licensed to consumers. To retain the right to use the program, they usually must comply with licence, which may require that they do not circumvent TPMs for any reason. A person could thus breach the licence, losing the right to use the program, even if the Copyright Act otherwise allows them to circumvent the technological protection measure.

“Does Bill C-244 overcome the challenge of licences that restrict the diagnosis, maintenance or repair of a product even if it were allowed under the act?

“Given that provinces have legislative powers over contract law, should the federal government engage with them on the matter of restrictive licences?”

I'll pose that to you again, Professor Centivany.

[Dr. Alissa Centivany]

This is essentially a question of pre-emption. Does copyright law pre-empt provincial contract law?

I will defer to Anthony on this, since he has more familiarity.

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

Yes, that would be helpful.

[Dr. Alissa Centivany]

In the United States, federal copyright law pre-empts contract law.

Anthony, do you want to speak to this?

[Anthony D. Rosborough]

Certainly.

I think this question evidences, as I mentioned in the Canadian right to repair Berkeley article that's forthcoming, that federal-provincial co-operation is essential here. This indicates an area where coordinated legislation targeting the consumer protection acts in the provinces is needed.

It would be nice if Bill C-244 also said that if you own a device with an embedded computer program, you have an implied licence to use the program to the extent that circumvention is necessary. We don't have that language in the bill. Obviously, that would conflict with provincial jurisdiction. This is where coordinated federal-provincial effort is needed.

However, again, this bill is starting in the right spot.

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

Mr. Rosborough, would you be able to suggest any amendments to address the concern between the provincial and federal responsibilities in question here?

[Anthony D. Rosborough]

Do you mean amendments to Bill C-244?

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

Yes. Could you suggest to us as a committee in future correspondence a possible amendment to get around this discrepancy between federal and provincial jurisdictions?

[Anthony D. Rosborough]

Yes, I'm happy to do that in writing, with the other requests I've received.

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

Thank you so much.

Would any other panellists like to comment on the relationship between the Copyright Act and the dynamic between the province and the federal government on this? No.

Well, then, I have one more question, if I have time, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

You do.

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

Under Bill C-244, circumvention of technological protection measures will be allowed only “for the purpose of the diagnosis, maintenance or repair of a product”, as we've stated.

You touched on this a bit, Mr. Rosborough. How would this limitation be enforced in practice? Can you reiterate a couple of those points for me?

Also, could persons or companies that engage in the manufacture, importation, distribution, sale, renting and provision of technologies, devices or components to circumvent TPMs be held liable where these products are used for other purposes?

[Anthony D. Rosborough]

As for the second question, it's not clear in the act whether liability would extend that far. That's an ambiguity that would require some further research.

The first half of the question relates, essentially, to whether hinging the bill on a numerated list of acts—repair, maintenance and diagnosis—would be overly restricting. Is that the essence of the question?

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

Yes.

[Anthony D. Rosborough]

In a broad sense, that's a pretty wide range of activities. That is inclusive of a lot of the activities that independent repairers need.

However, it's foreseeable that there are future uses of TPMs that impair other public-interest uses of technologies that the law should be able to respond to. It should be able to have a proactive approach, essentially.

This is where my suggestion that we move in a more regulatory direction comes from. It's not a concession from a right to repair perspective. It's actually a way of thinking more broadly about the issue and responding to the uses of TPMs that undermine the public interest.

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

Okay. I appreciate that.

I was very apprehensive, however, at your earlier comment about the ability of our institutions to prevent big lobbyists from taking over the process, as we might have seen in the United States. Otherwise, I agree with your sentiment, but in practice, it would be very hard from a regulatory perspective. That's one of the big challenges we're facing: how broad in scope this legislation is.

I was hoping Mr. Miao would be here today, but I guess he didn't show up again.

Thank you to all of the witnesses for their time today.

Thank you, Mr. Chair.

[Han Dong, Liberal, Don Valley North, ON]

On a point of order—

[The Chair, Liberal, Joël Lightbound]

I was about to intervene.

[Han Dong, Liberal, Don Valley North, ON]

Okay. I'll listen to your intervention to see if I'll be satisfied with that.

[The Chair, Liberal, Joël Lightbound]

Mr. Vis, it is not customary for the sponsor of a bill to be at every committee meeting on the bill.

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

He promised me. It's not in bad faith.

[The Chair, Liberal, Joël Lightbound]

I appreciate that, and it's perhaps because you didn't know, but Mr. Miao was here and answered committee members' questions before. I can assure you that he's paying close attention to your every word, Mr. Vis, and those of our witnesses in this committee.

With that being said, I'll now turn to Madame Lapointe for five minutes.

[Viviane LaPointe, Liberal, Sudbury, ON]

Thank you, Mr. Chair.

Dr. Centivany, this committee has heard from a wide range of associations and companies about this bill. Many of them have raised concerns about health and safety. I'm thinking in particular about medical equipment suppliers—Meditech came forward—as well as automobile makers.

Would you see there being some reasonable exemptions to the right to repair?

[Dr. Alissa Centivany]

It's a difficult question to answer, to be totally honest with you.

Let me remark for a moment on the medical context, because I know that a brief was filed in opposition. Some of my current research projects right now deal with medical device repair, specifically in the global south. I would say that what we have in the health care sector is a situation in which biomedical engineers, who are highly trained specialists, cannot repair medical equipment in hospitals and clinics.

The Public Interest Research Group conducted a survey of biomedical engineers at the end of 2020. In the survey, 76% reported having been denied access to parts or service manuals for critical medical equipment in the preceding three months; 80% reported having equipment on site that they can't service, because either they don't have access to the digital keys to unlock the TPMs or they don't have the appropriate parts or services; and 97% said that removing barriers to the right to repair would immediately and directly benefit them in their work.

While there's a legitimate reason to be more deliberative and more sensitive, and perhaps thoughtful and hesitant, around certain kinds of industries like health care, where the well-being of people is immediately at stake, I still believe that the facts on the ground support strong right to repair protections in those industries as well.