Industry Committee on Feb. 8th, 2023

[The Chair, Liberal, Joël Lightbound]

Ladies and gentlemen, dear friends, I now call this meeting to order.

Welcome to meeting No. 57 of the House of Commons Standing Committee on Industry and Technology.

Pursuant to the order of reference dated Wednesday, October 5, 2022, we are considering Bill C‑244, an Act to amend the Copyright Act (diagnosis, maintenance and repair).

Today's meeting is in hybrid format, pursuant to the order adopted by the House on June 23, 2022.

Today, the committee has the pleasure of welcoming, as an individual, Dr. Alissa Centivany, assistant professor at Western University, and Mr. Anthony D. Rosborough, researcher at the European University Institute's Department of Law.

Here with us in Ottawa, we have Mr. Charles Bernard, lead economist of the Canadian Automobile Dealers Association.

We also welcome Mr. Paul Fogolin, vice-president of policy and government affairs of the Entertainment Software Association of Canada.

Finally, we welcome Ms. Shannon Sereda, director of government relations, policy and markets for the Grain Growers of Canada.

Welcome to you all.

Before moving on to more serious matters, I'd like to wish a happy birthday to my colleague, Caroline Desbiens, who has the pleasure of joining the committee. Her birthday was well chosen; it is the same as that of your humble servant.

Happy birthday, Ms. Desbiens.

[Caroline Desbiens, Bloc, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Happy birthday to you as well, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

Let's move on to more serious matters.

Ms. Centivany, you have the floor for five minutes.

[Dr. Alissa Centivany, Assistant Professor, Western University, As an Individual]

Good afternoon, Mr. Chairman and esteemed members of the committee.

My name is Alissa Centivany. I'm an assistant professor at the Faculty of Information and Media Studies at Western University, where I work on technology policy, law and ethics. I have a JD specializing in intellectual property law and a Ph.D. in information science. I've had research appointments at U of C Berkeley's law school at the Center for Law and Technology, and at the University of Toronto law school's Centre for Innovation Law and Policy.

I'm currently the primary investigator of an SSHRC-funded study on copyright, computerization and the right to repair. I'm grateful for this opportunity to speak to you today.

Repair is impeded by design choices; business strategies; constraints on access, materials and information; various social factors; and laws. By permitting the circumvention of TPMs for diagnosis, maintenance and repair, this bill represents an important, incremental step forward toward reclaiming the right to repair in Canada. For the health of our economy, our planet, our communities and ourselves, repair must be available, affordable and accessible. I'd like to emphasize three points for consideration.

First, the purpose of copyright law is to benefit society by promoting the creation and sharing of creative and artistic works. The purpose of copyright is not to protect business models. Nor is it to ensure that the incumbent beneficiaries of the existing regime reap the rewards of that status in perpetuity. It's absurd that manufacturers of things like tractors, tanks, wheelchairs and washing machines can co-opt copyright law and impede repair, simply by embedding code into their products. This bill carves out a necessary, common-sense exemption to the act's anti-circumvention provisions, while leaving the provision intact for contexts that might bear a legitimate relationship to the overarching purpose of the act.

Opponents of this bill claim that the exemption carries risks to the environment, safety and security. In response, I'd like to say first, “You're barking up the wrong tree.” There are laws that could address those concerns, but they are not copyright laws, which, as just mentioned, are concerned with the production of creative works.

Second, the only way this exemption would impact emissions, safety and security is if the software that governs repair also governed emissions, safety and security. I doubt that this is the case, but if these systems are being bundled together, that is a serious design flaw that manufacturers should remedy.

Third, most consumer devices are insecure for reasons that have nothing to do with repair. The ubiquitous smartening of products through network computerization creates security risks, thus much of this innovation is of questionable benefit to consumers and society.

Fourth, positioning consumers and the repair providers they choose as threats is pretty blatantly anti-consumer.

Finally, whether this exemption is codified or not is irrelevant to risks posed by actual hackers, who have far more sophisticated tools and techniques already at their disposal.

The second big point I'd like to make is that this bill is pro-innovation. In my research, I've interviewed farmers, teachers, engineers, artists, community organizers, health care workers, mechanics, volunteer fixers, schoolchildren, and people living in cities, in the suburbs, in rural areas here in Canada, and also in the U.S., in Europe, and in regions of the global south. A common thread across these differences is that the practice of figuring out what is wrong with something and fixing it is innovative. Our understanding and valuation of innovation in this country has gone astray. We overemphasize novelty, newness and invention, and we underemphasize the work, skill and adaptive situated problem-solving required to keep the things we already have running smoothly. Rather than undermining innovation, as some of the opponents claim, this bill undoubtedly promotes it for the good of workers and the economy.

By the way, this position is shared by our most important trading partner. A brief released two days ago by the White House noted the importance of the right to repair in building a healthy economy. At present, 20 U.S. states have right to repair bills under consideration. Bill C-244 is pro-innovation and is consistent with the actions and interests of our key trading partners.

Finally, repair is not only good for the environment and the economy; it's also good for us as people and as communities. Every act of repair is embedded with important human values. These include productivist values like learning, skill development, self-efficacy, self-determination and digital citizenship, as well as non-productivist values like care, continuity, heritage, hope, mutual support and meaning-making, which together make up the fabric of a richer, more resilient, more livable society and enable us to collectively project a more hospitable, habitable and humane shared future.

Thank you for the opportunity to speak with you today about Bill C-244.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Madam Centivany.

We'll now turn to Mr. Rosborough for five minutes.

[Anthony D. Rosborough, Researcher, Department of Law, European University Institute, As an Individual]

Thank you.

Good afternoon, Mr. Chairman and honourable members of the committee.

I'm a lawyer and doctoral researcher in law at the European University Institute. I'm also a practising member of the Nova Scotia Barristers' Society. In the past I've taught in the intellectual property area at the Schulich School of Law at Dalhousie University. My doctoral thesis investigates the design, function and implications of TPMs across the automotive, consumer electronics and agricultural equipment industries. I have published several peer-reviewed articles on the right to repair and TPMs, including a forthcoming publication in the Berkeley Technology Law Journal, which analyzes the right to repair in Canada and the bill under discussion today, along with Canada's international trade obligations. I've included open access links to these works in a brief I've submitted to the committee.

I firmly support the right to repair and the substance of this bill, but my focus this afternoon is not to reiterate the numerous social, economic or ecological benefits of repair. Rather, my aim today is threefold: first, to explain why repair restrictions enabled by TPMs are a misuse of copyright; second, to explain how the bill could be strengthened; and finally, to respond to the core arguments put forward by those who have opposed the bill.

To begin, looking at copyright misuse, access control TPMs in physical devices are best understood as an aberration in the history of copyright. TPMs were first recognized in the 1996 WIPO Copyright Treaty as measures that are used by authors in connection with the exercise of their rights and that restrict acts in respect of works that are not authorized or permitted by law.

TPMs were originally conceived as legal protection to safeguard copy control technologies to assist the digital content industry, but today's access control TPMs in physical devices often bear little, if any, relationship to copyright infringement. They bear only a superficial resemblance to copyright. They function principally to protect technologies, rather than works or the rights of authors, so when device manufacturers rely on anti-circumvention to prevent diagnosis, understanding or repair of computerized devices, this contorts copyright policy to perform the work of a patent or a trade secret. Put simply, this is a misuse of copyright.

As for how the bill could be strengthened, one approach would be to transpose it into a system of comprehensive regulation under section 41.21 of the act. That section allows for regulations that could exclude certain TPMs, or classes of them, from protection and to conduct review and consideration of specific implementations. This may also assist in providing a path forward for Bill C-294, which aims to create a new exception to anti-circumvention for the purposes of interoperability between embedded computer systems. A regulatory framework under section 41.21 could safeguard a whole host of socially beneficial activities. It could also address new and unforeseen uses of TPMs.

To respond to the opponents' claims, opponents have put forward three main themes in their remarks. The first is cybersecurity concerns. The second is health and safety risks, and the third is carve-outs for certain industries.

With respect to cybersecurity, we have scant evidence that repair activities can or will undermine cybersecurity. In any event, cybersecurity should not form part of TPM policy under the Copyright Act. This is not the role of copyright law. A more appropriate framework for cybersecurity considerations is under Bill C-26, currently under consideration, or the Telecommunications Act.

As for health and safety risks, these fears seem to misunderstand what the bill seeks to do. No longer making it unlawful to circumvent a TPM does not equip anyone with new powers or capabilities. The fact is that anyone who wishes to manipulate or modify a device for unlawful purposes can already do so. Any system can be hacked. If the repair of devices poses health and safety risks, the government should consider amending the Consumer Product Safety Act or other legislation. We should ask more of manufacturers and not rely on copyright law to ensure the health and safety of Canadians.

As for industry-specific carve-outs, opponents of the bill have often sought to exempt certain industries or limit the bill's application to consumer products. The reasons for this have not been convincingly argued.

The Copyright Act's purpose is to create a system of rights and incentives, including exceptions and limitations, which govern the use of works. It's not the role of copyright law to distinguish between different technologies or physical devices. In fact, Canadian copyright law has long rested on the principle of technological neutrality. This means that copyright policy should not discriminate against any technology or medium of expression, so to create a TPM distinction based on the type of product or device would amount to a clear violation of this principle.

To conclude, TPMs are increasingly used by manufacturers as a tool for protecting a series of interests that are unrelated to copyright. Repair is not infringement.

The purpose of copyright law is to incentivize the production of artistic and literary works. It encourages authors to bring ideas into the public realm.

Repair-inhibiting TPMs undermine these goals. They function as absolute barriers to the diffusion of knowledge. They are indefinite in duration and receive legal protection in the absence of any connection to copyright.

I ask this committee to move the bill forward and to include it as part of a comprehensive regulatory scheme that ensures that TPMs in devices are protected to the extent that they are connected to copyright.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Rosborough.

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

[Charles Bernard, Lead Economist, Canadian Automobile Dealers Association]

Thank you, Mr. Chair.

First of all, I want to thank all members of the committee for inviting the Canadian Automobile Dealers Association to express its perspective on Bill C-244.

CADA is a federation of provincial and regional dealer associations that represents 3,400 members across the country. Our dealers employ more than 160,000 Canadians and have always been a major component of the social fabric in rural and urban Canadian communities. Not only do dealers help consumers in accessing a vehicle that fits their needs, but they are also heavily involved in procuring repair services and technical expertise to the clients in the years that follow the purchase.

As committee members will know, since 2009 the repair and servicing market has been intrinsically linked to the Canadian Automotive Service Information Standards agreement, known as CASIS. This voluntary agreement helped build an environment where service and repair information could be exchanged between OEMs and the automotive aftermarket industry. Indeed, the CASIS framework increased the competitiveness in the repair services market, and did so while preserving the fragile balance among safety, compliancy and access to repair services.

In fact, that partnership has allowed the aftermarket to grow since its creation. Data from DesRosiers Automotive Consultants show consistently that the aftermarket has achieved phenomenal growth and is positioned for even greater success in 2022. Also in 2022, the numbers placed the aftermarket well above prepandemic levels—more than 20% higher than 2019 numbers.

However, CADA believes that Bill C-244 threatens that balance, which was built through exhaustive co-operation over the last decade, and offers no real alternative to what CASIS has accomplished in terms of maintaining the regulatory compliancy required to ensure the utmost safety for the consumer.

The CASIS agreement is a well-functioning institution where progress in repair access has been supported by the signatories through expertise, transparency and, most importantly, prudence.

It is also important to highlight the significant safety and environmental considerations that have to be taken into account when repair information and tools are being shared among automotive OEMs and representatives of the aftermarket—considerations that are not applicable to the majority of the products that would be covered under this amendment to the Copyright Act. We firmly believe that the risks in areas such as safety, cybersecurity, vehicle theft, personal data protection and intellectual property rights far outweigh the marginal benefits of increasing the aftermarket service offer.

The importance of a different framework for the auto industry also seems to be supported in the December 2021 mandate letter from the Minister of Innovation, Science and Industry. It specifically mentions that the government should explore the idea of a right to repair for appliances and electronics, with no mention of vehicles.

The problem of vehicle theft in Canada is a concrete example of how Bill C‑244 could lead to significant problems that parallel the general discussion around the right to repair. Full access to this information would ultimately be shared by everyone, be they car dealerships, aftermarket businesses, or even individuals with criminal or negative intent.

We use this example not to spread a climate of fear or anxiety, but to call committee members' attention to the tension between access to repair information, which is one thing in and of itself, and the many related areas where risks are real and currently observable.

To be clear, on the side of the auto industry, the proposed amendment to the Copyright Act is a solution looking for problems. The CASIS agreement has proven itself. Once again, the Pandora's box that this bill may open could very well generate, as much for consumers as for political players, difficulties on a scale that would overshadow the initial motivations behind the amendment.

We recommend that this committee pay closer attention to the underlying risks of this bill. For example, we strongly encourage the committee to increase participation of cyber security experts, as well as those who specialize in the vehicle theft crisis, general vehicle safety, and the challenges of protecting intellectual property.

Additionally, for the reasons I just outlined, we recommend that the committee include a specific exemption for the automotive industry, rather than support further development of the CASIS agreement and attempt to increase its scope.

I want to thank everyone.

I'm ready to answer your questions in French or English. Thank you very much for your attention.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Bernard.

I now give the floor to Mr. Fogolin, from the Entertainment Software Association of Canada.

[Paul Fogolin, Vice-President, Policy and Government Affairs, Entertainment Software Association of Canada]

Thank you, Mr. Chair and honourable committee members, for the opportunity to speak to you about Bill C-244.

My name is Paul Fogolin, and I'm the vice-president of policy and government affairs for the Entertainment Software Association of Canada. We represent major video game console makers, publishers and large and small developers, as well as national distributors.

The video game industry is the largest entertainment industry in the world, plain and simple, with revenues that far exceed those of both film and music. In 2022, the video game industry earned over $170 billion in global revenues.

At ESAC, we're proud to report that Canada is one of the biggest players in the global games business. Home to close to 1000 studios with over 32,000 full-time employees and contributing $5.5 billion to the Canadian economy, we punch far above our weight.

The Copyright Modernization Act, passed in 2012, has helped to drive this growth by protecting the considerable time, investment and creativity that developers put into their games. This empowers them to innovate and create, knowing that legal protections exist to mitigate the risk of piracy and infringement.

While we recognize the good intentions driving this bill, if passed it could result in unintended consequences for both our industry and our players. Permitting the circumvention of TPMs presents a unique risk to our industry. Let me explain why.

The integrity of the entire video game ecosystem relies on TPMs. Not only do they protect intellectual property, but they prevent hacking and cheating, deter unauthorized access to consumer information and help support cybersecurity. They also allow a console to be securely updated, providing players with new content, extended storylines and updates to the game experience.

Before the Copyright Act was passed, the widespread availability of circumvention devices and services in Canada created an environment in which piracy and modding thrived. The act provided the critical measures needed to pursue those who facilitate and engage in piracy.

This is not a theoretical concern. It's been validated through the courts in litigation. In a precedent-setting decision issued in 2017, Nintendo of America v. King, the Canadian Federal Court awarded over $12 million in damages for the circumvention of TPMs and copyright infringement under the act, including that the defendant was liable under section 41.1 for the trafficking and installation of circumvention devices.

Bill C-244 could permit devices such as mod chips and game copiers to be put back on the market under the auspices of repair. We're deeply concerned that this will make it incredibly difficult for rights holders and law enforcement to pursue legal action against those who traffic in these devices. The burden of proof required would be so high that it would be very, very difficult or virtually impossible to establish liability.

It's also clear, watching the debate on Bill C-244 thus far, that game consoles aren't an area of great concern. I think that speaks to the ease of repairability and consumer satisfaction in this regard. Video game consoles are consistently rated highly for their repairability on websites like iFixit. Most common repairs can be addressed without circumventing TPMs. On top of this, our console makers provide easy, fast, reliable and affordable repair services as well as comprehensive online and off-line networks to troubleshoot issues.

This is an all-encompassing piece of legislation. It doesn't distinguish between a tractor, a fridge or a game console. Similar markets that have right to repair legislation, like some of our friends in the States, do classify different classes. Let me give you two examples: New York's Digital Fair Repair Act, which was recently signed into law by the governor; and Washington state's Bill 1392. Both jurisdictions rightly recognized the unique risk that TPM circumvention poses for our industry and chose to exclude game consoles.

In closing, we're very concerned about the risk posed to our industry and our players. To avoid going backward with protections to IP and to ensure we protect the player experience, we respectfully request that this committee adopt our proposed amendment to exclude game consoles, components and peripherals.

Thank you very much.

[The Chair, Liberal, Joël Lightbound]

Thank you very much for your presentation, Mr. Fogolin.

Finally, for five minutes, I give the floor to Ms. Shannon Sereda, who is with us in person in Ottawa and represents the Grain Growers of Canada.

[Shannon Sereda, Director, Government Relations, Policy and Markets, Alberta Wheat and Barley Commissions; Representative, Grain Growers of Canada]

Thank you.

Good afternoon, Mr. Chair and honourable members of the committee. It is my pleasure to be here today as a representative of the Grain Growers of Canada.

My name is Shannon Sereda. I am the director of government relations, policy and markets with the Alberta Wheat and Barley Commissions. We represent over 17,000 grain farmers across Alberta and are member organizations of the Grain Growers of Canada.

Canadian farmers continue to be world leaders in their accelerated adoption of technology. Modern farming equipment is increasingly reliant on high-tech automized systems, with complex software design and digitized components. The tools to fix that machinery have also become increasingly complex. A laptop and software now often replace a wrench.

This continual innovation in farm equipment is essential for the sustainable growth, efficiency and competitiveness of the Canadian grain sector, yet studies have shown that farmers are often considering older, less efficient and less digitized equipment that they can repair themselves. This is because when a farmer experiences an equipment failure, in almost all instances they are beholden to one point of service, the OEM dealer, to unlock the equipment, provide the parts and have their technicians diagnose and repair the issue. Given that there are typically few centralized dealers servicing many farmers over a large area, this can often take many hours to many days, and can be further impacted by single-source supply chain disruptions for accessing parts.

Farmers are consistently at the mercy of weather. Any delay during what is already a very short growing season poses a major threat to crop yield and quality, and is a financial risks to farmers. For perspective, in one day a farmer can harvest multiple millions of dollars' worth of crop.

Creating a competitive market for equipment repair will give farmers a choice to safely conduct the repairs themselves, through a qualified third party or through the equipment dealerships, thus reducing both risk and cost. Farmers and other skilled individuals in Canada's rural economy are ready and able to safely contribute to a competitive market for repair.

The current legislative environment in Canada supports equipment repair monopolies by allowing OEMs to prohibit the bypassing of TPMs. This leaves farmers and third party independent mechanics limited in their ability to diagnose or repair many potential technical issues. To restore the competitive environment and market for repairs of farm machinery, legislative change is required. Bill C-244 represents the first step in helping to break the monopolization of repair services and allowing Canadian farmers the right to repair their machinery, putting them on equal footing with farmers in other jurisdictions.

The United States and the European Union have made moves toward modernized legislation and regulations specific to agriculture, and are actively working toward creating a competitive environment for third party repairs, data ownership and interoperability. Both the agricultural right to repair bill that was recently introduced in the U.S.A. and other pressures toward increasing competition in repair services are acting to send the right signals to industry.

John Deere, which previously opposed the notion of allowing farmers to conduct their own repairs, has recently signed a memorandum of understanding with the American Farm Bureau Federation. This MOU will formalize U.S. farmers' access to diagnostic and repair codes and manuals and product guides, allowing farmers and independent repair shops to purchase John Deere software and other information needed to service their equipment.

While this is a step in the right direction, it remains to be seen how deep the access will be, how it might be enforced or how reasonable pricing will be defined. The availability of these tools should be cost-conducive for both independent technicians and farmers.

To this end, and in conjunction with Bill C-244, there is a necessary role for modernized provincial legislation in order to further restore a competitive market. In Alberta, for example, the Farm Implement and Dealership Act can be revised to ensure access to tools at a reasonable price.

Farmers are innovators. They have a history of making improvements to existing equipment used on their specific farms to boost productivity. The design practices by OEMs limit ingenuity and innovation for farmers and third parties by disallowing interoperability or the full use of telematics. On-board computers on farm equipment report nearly every detail of what a farmer does. Telematics provide a modern method of using this data to monitor farm equipment to ensure that operations remain reliable and timely.

Farmers have become more tech-savvy and can use telematics together with AI and other software to manage their farms from their iPhones. With full access to telematics, they can see pending issues with machinery by observing engine speeds and tire pressure, or even forecast planting stages and harvest timing.

GPS systems allow them to precisely place inputs, such as fertilizer, to maximize efficiency in cost, which in turn creates positive environmental outcomes, such as emissions reductions.

The agriculture community is pleased that the committee has acknowledged and invited agriculture to be a part of its deliberations on Bill C-244. We would like to ensure that the proposed amendments in Bill C-244 remain free of any exemptions that could limit the potential development of the competitive market for diagnosis, repair and maintenance of farm equipment.

On behalf of farmers, I thank you for the invitation to be here today, and thank you for your time.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Ms. Sereda.

We'll now start the discussion, with Mr. Patzer, for six minutes.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Thank you very much to all the witnesses for being here. I really appreciate all the perspectives that everybody brings, and the way you all presented here today.

I'm going to start with Mr. Rosborough.

I like the fact that you have talked about possible specific amendments to the bill. Could you elaborate on what amendments you would like to see? Could you delve into how specifically that would provide a better solution for achieving a right to repair? If you want to preface it with the way the Americans do their copyright exemptions, maybe that would be beneficial as well.

[Anthony D. Rosborough]

Section 41.21 of the act allows the creation of regulations to exempt TPMs in certain contexts and to exempt certain classes of them from protection. You could analogize this to the United States' Digital Millennium Copyright Act review and exemption process, which happens every three years under that framework.

There are some lessons to be learned from that approach in that, for one, a substantial amount of evidence has to be produced every three years to get an exemption. That process applies only to direct acts of circumvention, and does not apply to what is sometimes called the trafficking or circulation of circumvention tools.

In order to really give effect to the right to repair, solutions need to be shared. A big part of repair is that it's really about devising solutions, sharing, building community and building collective knowledge. Sharing tools is important to that step.

Section 41.21 of Canada's act enables us to do both at once. There would be a way under section 41.21 to create blanket exceptions for TPMs, which undermine competition in aftermarket sectors. Following that, in the second subsection of section 41.21 there is a framework to create regulations that exempt whole classes, or types, of TPMs from protection, where they produce undue and disproportionate impacts on certain markets. Any relevant factor is, in fact, one of the factors in that list, so it's quite a broad scope of a basis for regulation.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Thank you very much for that. I think we're all trying to find some good solutions for various industries.

Ms. Sereda, I grew up on a grain farm just shy of 8,000 acres. Whenever I talk to people about the right to repair, it's based on the premise....For us, we were sometimes four hours from the closest place that would either have parts for us, or have somebody who could come out and do the service. We talk about how much it costs to have a truck roll, and to have someone to drive out there and say, “I don't have the right part,” or that maybe the computer doesn't have the right software on it. You're paying that cost to drive back and forth all the time, whereas if you could fix it yourself that would be hugely beneficial.

Can you talk a bit more about what some of your members are saying?

[Shannon Sereda]

I think you really hit it on the head. You know and understand the challenges of the expanse of the rural community in which farmers operate, and how far from the OEMs and dealerships they can be.

Given this legislation or enabling independent service providers to access the appropriate tools to help farmers, it would create more choice within the industry, so there would be independent dealers a lot closer to farm sites, where farmers could then access them in a more timely manner or they could come out with the appropriate tools.

Sometimes it's just shutting off a false error that keeps a farmer down for a whole day, or for hours. That cost could be upwards of $1,300. Having access to these tools for those independent service providers is the best way for farmers to have more choice. If they can't repair it themselves, there would at least be providers in closer proximity to their operations.

[Jeremy Patzer, Conservative, Cypress Hills—Grasslands, SK]

Thank you very much for that.

Mrs. Centivany, I appreciate your intervention as well. Could you talk briefly on the dynamics between federal and provincial jurisdiction when it comes to copyright law, and how that plays a role in the right to repair?

[Dr. Alissa Centivany]

The Copyright Act in Canada is a federal law. The provinces have jurisdiction over related fields of law, like competition, as has already been stated.

In terms of the current bill under consideration, we really need something at the federal level that makes a clear statement about copyright that would eliminate these anti-circumvention provisions to enable diagnosis, maintenance and repair, and that would still allow provinces to create adaptive strategies that suit their constituencies.

We really need to have a comprehensive approach at the federal level with regard to TPMs.

[The Chair, Liberal, Joël Lightbound]

That's about all the time you have, Mr. Patzer.

We will now turn to Nate Erskine-Smith for six minutes.

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

Thanks, Joël.

I want to start with the Entertainment Software Association of Canada so I'm entirely clear on what the challenge is.

The language in the legislation very clearly stipulates that one can circumvent the TPM only for the purpose of diagnosing, maintaining or repairing a product, so your challenge isn't with the specific language. Your challenge is that this opens up the possibility of tools for circumvention circulating, and then it's hard from an enforcement perspective to delineate between whether it's for the purpose of the legislation or for an improper motive.

[Paul Fogolin]

That's exactly correct.

Let me quote something from the WIPO guide on Internet treaties, which will speak to this: “...once placed on the market for such purpose,” circumvention tools and exceptions “would become available to all to use with impunity.”

You're right on here. It becomes incredibly difficult to do the work of rights holders or law enforcement to find the bad actors. Not only would you have to prove that a circumvention occurred, but you'd have to prove that a copyright infringement resulted and that this was the intent of the circumvention.

The bar becomes so high that from a practical level it becomes incredibly difficult. In particular, mid-size and small companies don't have the resources of some of the larger members to pursue these actors. It becomes incredibly difficult.

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

That's helpful.

At the same time, there is a major benefit to consumers. I don't think enough of us focus on legislation that emphasizes consumer needs, and this is a piece of legislation that does.

Professor Centivany, we have heard from the Entertainment Software Association of Canada. They are putting a challenge before you to say that while it is well intentioned and they want a right to repair, there are some negative, unintended consequences as a result of tools circulating.

How do you respond to that challenge?

[Dr. Alissa Centivany]

First, congratulations on having a $170-billion global industry. That's quite impressive.

In addition, comments were made about the ease with which consumers are able to repair their consoles, for example, and that's fantastic to hear. The question it raises for me is this: Why oppose this bill?

This bill essentially provides an exemption for diagnosis, maintenance and repair, and essentially you're saying that it's already happening, so this bill should have no impact on what you're talking about.

In terms of—

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

Let's pause there, because I think the challenge is slightly different.

Look, I'm more sympathetic to your articulation of the defence in some ways, but the challenge is not that they take issue with the language. They're saying they do have a very strong market in diagnosis and repair, but what will happen with this is that there will be tools ostensibly listed for the purposes of....

An example I would be more familiar with is that you would have a certain grow light sold for tomatoes, when it was obviously being used for cannabis. In this case, there will be tools being sold for the purpose of diagnosis and repair, when that's not really at issue and they are being used for circumvention for ulterior purposes.

Are we able to respond to that challenge, or do we just say we accept some problems, but overall this is going to be better for consumers, and they can toughen up?