Evidence of meeting #59 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 recording is available from Parliament.
6:20 p.m.
Liberal
The Chair Liberal Joël Lightbound
That brings us to the main amendment, G‑1, moved by Mr. Fillmore.
Are there any comments before we proceed with the vote?
The floor is yours, Mr. Perkins.
6:20 p.m.
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
I just wonder if officials would agree with my interpretation that the third paragraph basically makes the right to repair not possible.
6:20 p.m.
Director, Copyright and Trademark Policy Directorate, Department of Industry
Thank you, Mr. Chair.
Is that the third paragraph of G‑1?
6:20 p.m.
Conservative
Rick Perkins Conservative South Shore—St. Margarets, NS
That's correct. It's new proposed subsection 41.121(3) in G‑1, in the original motion.
6:20 p.m.
Director, Copyright and Trademark Policy Directorate, Department of Industry
Okay.
No. If anything, it clarifies that a right to repair is permissible so long as there is no copyright infringement. It actually goes very much to the point, I believe, that many of the other...and especially amendment G-1, which seeks to ensure that, at the end of the day, you have the right to circumvent the TPM for the purpose of repair, but that right is limited in that if it involves copyright infringement—which is completely distinct from the TPM circumvention—you then cannot exercise the TPM circumvention or the exception if your purpose is also to infringe copyright.
6:20 p.m.
Liberal
6:20 p.m.
Bloc
Sébastien Lemire Bloc Abitibi—Témiscamingue, QC
In parallel, what is the real impact of proposed subsection 41.121(3)?
Does it conflict with subsection 41.121(2)? Subsection 41.121(2) seeks precisely to circumvent the circumstances in question relating to technological protection measures for another person.
6:20 p.m.
Director, Copyright and Trademark Policy Directorate, Department of Industry
Subsection 41.121(2) seeks to broaden the exception by making sure that third parties can carry out repairs on behalf of the product owner. Really what it's doing is broadening the right.
Subsection 41.121(3) seeks precisely to ensure that, if the purpose ultimately infringes on copyright, the exception does not apply and protection measures are not permitted for infringement.
6:25 p.m.
Bloc
Sébastien Lemire Bloc Abitibi—Témiscamingue, QC
Let's go back to the much-cited John Deere example.
Can the tractor be repaired or not if the company considers it to be a copyright infringement?
Does subsection 41.121(3) override subsection 41.121(2)?
6:25 p.m.
Director, Copyright and Trademark Policy Directorate, Department of Industry
You wouldn't be allowed to copy the software and start distributing it. That said, as long as the software licence stays in the user's hands, we believe the repair would be allowed.
6:25 p.m.
Conservative
Jeremy Patzer Conservative Cypress Hills—Grasslands, SK
From what I understand, the original intent of Bill C-244 was to somewhat broaden how the Copyright Act applies. Just from reading amendment G-1, it talks a lot more about “performer's performance fixed in a sound recording”. Again, it's talking a lot more about musical works. It's not recognizing or realizing that that's not necessarily what we're talking about here.
The vagueness of the Copyright Act is that a work can be anything. It can be computer code. It can be a musical piece. It can be a book. It can be a museum and archives. That's the vagueness issue with the term “work”.
I think the original intent of Bill C-244 was to try to address that vagueness. I feel that this amendment doesn't fix that problem with regard to what Sébastien was just asking about: “Does this enable somebody to fix a John Deere tractor?” I mentioned this earlier. When you hop in that John Deere tractor and hit “start” on the screen, it's expressly written right there that you do not own a copy of the software. You have a licence to operate it, but that licence does not give you the ability to access that software. What this bill was originally intended to do was to allow a repair shop the ability to import a device that would allow somebody to get the information they'd need to complete the repair on that tractor.
The amendment that's been provided here by Mr. Fillmore.... I feel like it's completely gutting the entire purpose of trying to get a right-to-repair bill because, again, it doesn't address the vagueness of the term “work”.
I'll leave my comments there for now.
I guess the only other thing I would add is this—and this would be my question: Do you, as the experts, have any comments on that? Would you like to comment on that?
The second point I'd like to touch base on is that, obviously, there are 14 or 15 states in the United States that have already passed and implemented right-to-repair legislation. What's stopping those states from...? They're obviously not concerned about CUSMA. Is that because it's done at the state level and not the federal level? If it were a province doing this, would it be at risk of violating the trade deal? If so, what's the difference between an individual state's doing it versus what we're doing here today?
6:25 p.m.
Director, Copyright and Trademark Policy Directorate, Department of Industry
If I may, Mr. Chair....
First, the definition of a “work” in the Copyright Act is, in fact, very broad. That is why we believe that by talking about “work, performer's performance fixed in a sound recording or sound recording to which” we actually cover the entire universe of the types of works that could be covered and that could be protected. Thereby, we believe this actually better covers and provides more clarity over the ability to circumvent a TPM for the purpose of repair.
This actually doesn't try to restrict it. It is using, as you've said, the broad definition of a work in the Copyright Act and using it to empower the section.
With respect to the distinction between what's happening at the federal level in the U.S. and the state level, at the federal level they have created exceptions for the copyright law. The librarian of copyright has created certain exceptions for the circumvention of TPMs in order to allow the circumvention of TPMs. These do not create a positive right to repair. All they do is clear a barrier that could be created by the copyright law. This is to enable, at the states' level, if they wish to create positive rights to repair.... At that point, that could be achieved.
We're seeing some of that happening in some states where they not only are relying on the exception in the TPM regime but are going further by mandating that parts, repair manuals, and potentially contracts don't prevent people from actually being able to effect repairs on their devices.
I think it's worth remembering that, in the Copyright Act, all we can do here, really, is eliminate a potential barrier to repair.
6:30 p.m.
Liberal
The Chair Liberal Joël Lightbound
Thank you very much.
Did you have any follow-up, Mr. Patzer?
It has to be a quick one, if you do. We are almost out of time.
6:30 p.m.
Conservative
Jeremy Patzer Conservative Cypress Hills—Grasslands, SK
We heard from Mr. Fillmore about putting this in. If the original one was going to put us offside with our trade deal, my question is on what the States is doing.
Now that the barrier is removed at the federal level in the U.S., are the individual states in contravention of CUSMA, or is what they're doing perfectly allowable? What makes what we're doing here not allowable in contrast to what the States is doing?
6:30 p.m.
Liberal
The Chair Liberal Joël Lightbound
Mr. Blanar, I'm not sure we are going to have the time because we have a hard stop at 6:33.
6:30 p.m.
An hon. member
Let's vote.
6:30 p.m.
An hon. member
No, I think we should wait. There's more clarity required.
6:30 p.m.
Liberal
The Chair Liberal Joël Lightbound
If there's still debate, I can't put it to a vote. I had Mr. Dong who wanted to speak.
You, Mr. Perkins, raised your hand earlier.
In any event, we'll have to adjourn. Hopefully there can be discussions amongst the parties during the two weeks of constituency meetings that we will have, and then we can come back and proceed swiftly on Bill C-244.
On that note, thanks to everyone—the analysts, the clerk, the interpreters, the support staff, everyone.
Thank you very much. Have a great two weeks.
The meeting is adjourned.