Industry Committee on Feb. 8th, 2023

[Paul Fogolin]

Thanks, Mr. Masse. Thank you as always for being an avid player.

I think the best way to describe this is to use a quote from the U.S. Copyright Office. Mr. Rosborough mentioned the triennial review of the Digital Millennium Copyright Act, whereby they assess different classes and there's an opportunity to open them up and allow for certain products to circumvent TPM to repair.

In its 2018 rulemaking report, the U.S. Copyright Office noted that there was “compelling, uncontradicted evidence” that circumventing video game console TPMs would harm the market for such consoles, because they would no longer be able to “serve as a secure [distribution] platform”.

In light of these console-specific concerns, the Copyright Office recommended against allowing the circumvention of video game console TPMs. I think it was during that same triennial that other products such as cars and other devices were allowed the opportunity.

I want to point out that other jurisdictions have looked at this and, for the reasons I'm mentioning, it's a unique space that we're in. As a gamer, you'll know that it's the convergence of creativity and technology. These consoles are closed systems, and if you can't secure the platform and the platform is put at risk, you have some unintended consequences.

[Brian Masse, NDP, Windsor West, ON]

Thank you for that.

If I have time, Mr. Chair, I'll quickly go over to Dr. Centivany.

One thing you raised, which I think is important, is that we have built our society on the freedom to recreate, to some degree, with fixing and adapting. My concern is that if we don't deal with this, how far do you think we're actually going to stymie innovation, arts, culture and expression? When you look at some of the most modern advances in society, they're accidents of experimentation. I don't think that gets a lot of attention.

I'd ask you, and perhaps even Mr. Rosborough really quickly, for your thoughts on those two elements.

[Dr. Alissa Centivany]

I'll keep it short so that Mr. Rosborough has an opportunity, hopefully, to respond as well.

The process of creation involves iterating on things that already exist. Nothing is created out of whole cloth. This is the way creation and innovation happen—having the opportunity to explore, be curious and learn. In my interviews, what I heard a lot of people say is that actually breaking things was part of the way they learned not only how things were put together, but how to fix them. You're absolutely right. Having this ability to play and tinker is critical.

The other point that I just really want to quickly make is in the case of health care devices, in particular. We have situations where people's mobility depends on the functioning of, let's say, a powered wheelchair. Sometimes they'll even have medical devices implanted in their bodies. These, too, are being restricted by TPMs and repair restrictions.

I just really want to emphasize the fact that we need to have this exemption that Bill C-244 offers.

Anthony.

[Anthony D. Rosborough]

Repair and innovation go hand in hand in a number of ways. There's evidence of that in this bill, in addition to Bill C-294, which speaks to prohibitions on innovation as implicated by TPMs.

The fact is that the process of repair requires a type of research and analysis. Product tear-downs are an example of this. If you look on iFixit's website, you see an entire library of, basically, research and discovery as to how things work.

When that becomes unlawful to do, we're restricting the flow of knowledge and information, which is really antithetical to the purposes of the intellectual property system. The reason we have IP is to bring ideas forward that we can share and benefit from. When we're putting an indefinite block on the flow of that information, we should have a really compelling reason to do so. Contorting copyright law to be a vehicle for cybersecurity or the theft of automobiles is probably not a sufficient justification.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

Over to you, Mr. Williams.

[Ryan Williams, Conservative, Bay of Quinte, ON]

Thank you very much, Mr. Chair.

This is a fascinating discussion. Thank you to all of the witnesses for joining us today.

I really want to focus on two aspects. The first is competition, ensuring that we have more competition in our marketplaces. The second is looking at exemptions and how they would work to be both flexible and agile, depending on certain situations.

Dr. Centivany, I went to Western for two years. I miss it—it was a great school, but I ended up graduating from Guelph. Thank you for all your comments so far.

I really want to focus on the challenging concern that I think the world's looking at right now. It centres around Taiwan. The reason for that is that about 90% of the world's superconductors are produced there. We just went through COVID-19. We saw what supply chain disruptions did to all of our markets.

I wonder if you could comment. If we were to see a disruption in supply chains, how important is the right to repair for our economy?

Mr. Rosborough, perhaps you could comment after that.

[Dr. Alissa Centivany]

That raises a really good point. Lots of the weak points in our systems surfaced during COVID-19, including in the global supply chain. We saw instances, for example, of hospitals not being able to have access to repair parts and biomedical engineers unable to fix equipment. In some cases they were printing 3-D replacement parts and using those. In many of those cases they were threatened with intellectual property lawsuits as a consequence.

With regard to semiconductors and microchips, the more we can centre that manufacturing at home, the better. Creating more robust manufacturing capacities here in Canada is going to be critical.

Anthony, would you like to contribute?

[Anthony D. Rosborough]

Certainly.

I think what the COVID-19 experience showed us with semiconductors is the reliance on centralized systems of manufacturing and specific geopolitical sources of manufacturing, which can be a challenge. Repairing enables us to claim some sovereignty over the technologies that we have around us and to decentralize some of our reliance on these supply chain systems.

Greater repairability would definitely help us, should we experience another semiconductor shortage, for example.

[Ryan Williams, Conservative, Bay of Quinte, ON]

Mr. Rosborough, you talked about what the U.S. is looking at every three years—at the exemptions for TPMs. It's a thorough process. In the U.S., they also have a copyright librarian who approves that. We don't have that in Canada.

What specific recommendations would you make for an exemption process in Canada?

[Anthony D. Rosborough]

For an exemption process in Canada to have effect, it would first of all have to enable the circulation of circumvention tools, and that's not currently available in the United States.

The second is that under section 41.21 we could essentially have a panel of experts, an administrative body, that would review certain implementations of TPMs and exempt them from protection where they impede certain conduct or acts that we think are in the public interest—repair being one of them.

This would offer a number of benefits, because it would be more responsive. We wouldn't be worried, for example, that the mod chips would be under the auspices of repair, because we would be looking at the implementation of TPMs in specific devices and products with the necessary technical expertise and would be judging that implementation on its connection to copyright.

[Ryan Williams, Conservative, Bay of Quinte, ON]

Would you recommend the same time frame of three years, or is there anything that could be a little more agile? Are there benefits to two or three years or less?

[Anthony D. Rosborough]

Obviously, from a user rights perspective, the longer the period, the better. Often there's a substantial amount of evidence that has to be produced to conduct these studies and to have these exemptions.

It may be the case that we're not looking at time-limited exemptions at all. Perhaps the approach we would take in Canada would be indefinite, unless there's an appeal or some grounds to challenge the exemption. Perhaps it would be indefinite.

Definitely, a two- or three-year exemption period is probably not sufficient.

[Ryan Williams, Conservative, Bay of Quinte, ON]

Do you think, as a fail-safe, that we should be giving the minister any power to exempt or tinker with that list at all? We've done this with other bills.

[Anthony D. Rosborough]

I do not.

With respect to the expertise of the minister, I think we're dealing with, obviously, a subject matter that spreads across many industries and technologies. It could have different impacts on the public interest that would require the expertise of a committee of experts, in my opinion.

[Ryan Williams, Conservative, Bay of Quinte, ON]

How long do I have, Mr. Chair? Am I out?

[The Chair, Liberal, Joël Lightbound]

You're out of time, but I'm feeling generous, if you have another question, Mr. Williams.

[Ryan Williams, Conservative, Bay of Quinte, ON]

I'm going to ask for this one in writing, Mr. Rosborough, just to give the committee some more time.

In your paper, “Toward a Canadian Right to Repair: Opportunities and Challenges”, you conclude that Parliament needs to use more of the “tools at its disposal” to enact right to repair reforms, including regulations “to better address the anti-competitive uses of TPMs”.

Could you please submit, in writing, what those potential regulations would look like? Once the committee gets them, we'll have them in the report.

[Anthony D. Rosborough]

Absolutely. Is this referring to section 32 of the Competition Act?

[Ryan Williams, Conservative, Bay of Quinte, ON]

Yes.

Thank you, Chair.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

We'll now go back to Mr. Erskine-Smith for five minutes.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks. I actually want to pick up on Ryan's point.

We have a bill before us, and we have an opportunity to make amendments. Some of what you described sounds perfectly in scope, and other amendments you described may not be in scope. I'm not sure.

What I would find helpful, Mr. Rosborough, is not for you to specify exact detailed regulations, because that would be for a further process down the road after we pass the legislation, but for you to send in writing to us what amendments you would want to see, with some clarity. It doesn't have to be the exact wording, but just give us some direction so we can then have a conversation among ourselves.

I have a general sense in terms of what you described, but it would be helpful if you could put it in writing to us.

Mr. Fogolin, I cut you off earlier. I'm curious whether you want to finish your train of thought.

[Paul Fogolin]

I appreciate that. I actually had an opportunity, when responding to Mr. Masse, to reference the triennial review process.

However, if I have a bit more time, one of the things we're asking is to look at this from the most practical level possible and to try to weigh the pros and cons. Every industry is different. Looking at what they do in the United States, also in Australia, where they've looked at the right to repair, and the EU process, it's not easy work, but you have to do the work to look at the different classes because it's [Technical difficulty—Editor].

In the case of [Technical difficulty—Editor], anything you would need to do to get your console to work is possible. It's just something to mention.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I didn't catch all of that, but I caught what you said to Mr. Masse.

In terms of Mr. Rosborough's proposal around a set of regulations, and presumably through those regs you would have different classes.... Would you be comfortable with what he's discussing today?

[Paul Fogolin]

I'd have to see it more closely, but in theory, yes. We sent a written submission that includes an amendment we prepared that's similar to the Digital Millennium Copyright Act, and I think that language is ideal. Certainly, any process that looks at amendments for classes is something we'd be in favour of.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Okay. Ms. Centivany, we have Mr. Rosborough saying that we can manage this balance here between circumvention tools that are being used for improper purposes and also empowering consumers with the right to repair through a regulatory process. You, I think, were adamant in your opening remarks that we need to be firmly pro-consumer and this bill is just that.

Are you comfortable with the idea of a regulatory apparatus to maybe carve out different classes?