Industry Committee on Feb. 15th, 2023

[Andy Fillmore, Liberal, Halifax, NS]

Thanks so much.

When you're writing public policy and so forth, you try to avoid duplication. Duplication creates confusion and opportunities for misunderstanding.

The point is that this clause in particular is unnecessary because it already exists in the Copyright Act. It's already considered under the term “work”. This is, again, good housekeeping, good clean public policy writing. It shouldn't be in two places simultaneously.

There doesn't appear to be any need for it at all. As this bill itself amends the Copyright Act, why would you amend an act to add something that duplicates something that's already in the act? It's just clean housekeeping to avoid confusion.

[The Chair, Liberal, Joël Lightbound]

Okay.

Monsieur Masse.

[Brian Masse, NDP, Windsor West, ON]

I just want some interpretation on whether that is the only repercussion of that. If not, I am not going to support that at the moment.

I want that independently verified either by our analyst or legislative clerk.

[Andy Fillmore, Liberal, Halifax, NS]

Why, you don't believe me?

[Brian Masse, NDP, Windsor West, ON]

It's not a question of that. It's just that I've looked at your other decisions and I might believe you, but I may not want to do what you want me to do.

[The Chair, Liberal, Joël Lightbound]

Thank you.

Perhaps we can direct that question to Mr. Blanar or Mr. Racine.

Do you want to jump in?

[Patrick Blanar, Director, Copyright and Trademark Policy Directorate, Department of Industry]

Thank you, Mr. Chair.

Ultimately, if you look at section 2 of the Copyright Act, there is a definition of “literary work”, which is a subset of works that includes computer programs. Adding “computer programs”, then talking about “works and computer programs”, has the potential to create some confusion in the act about whether “works”, in this section, includes computer programs, in general.

[A voice]

It's inconsistent wording, in other words.

[The Chair, Liberal, Joël Lightbound]

Does that clarify it? If there are no further questions, I will proceed.

Shall clause 1 carry?

[A voice]

On division.

[The Chair, Liberal, Joël Lightbound]

I'll go to a vote, then. I'll presume it's a no from the Liberals.

(Clause 1 agreed to: yeas 6; nays 5)

(On clause 2)

Thank you. We're now moving to clause 2.

We have G-1.

Go ahead, Mr. Fillmore.

[Andy Fillmore, Liberal, Halifax, NS]

Thank you, Mr. Chair.

I'll try to put this in the simplest terms I can. I've done some work trying to “de-legalese” it a little. I might look to some of our friends—Mr. Blanar or Mr. Racine—to help us.

[The Chair, Liberal, Joël Lightbound]

Mr. Fillmore, I'll interrupt you for one second. Before you go more in depth, I'll advise colleagues of the following.

According to legislative counsel, if the government amendment is adopted, CPC‑1, CPC‑2, CPC‑3, CPC‑4 and BQ‑1 cannot be moved because of a line conflict. I want everyone to be clear on that before we move on.

Over to you, Mr. Fillmore.

[Andy Fillmore, Liberal, Halifax, NS]

Thank you.

As you can see, the title of this amendment is removing the exception to the device prohibition. I want to explain what that's about.

CUSMA features three categories of TPMs, of those measures. The first one is the service prohibition. The second is the device prohibition. The third is the circumvention prohibition.

Now, when you look at those three prohibitions with regard to the diagnosis, maintenance and repair issues that this bill is focused on, CUSMA actually limits Canada to only introducing an exception from one of those three TPM prohibitions that I've just listed, namely, the circumvention prohibition. CUSMA only allows this bill to have a circumvention prohibition.

The challenge this amendment addresses is that Bill C‑244, in clause 2, currently includes an exception to another of the three prohibitions—the device prohibition—and, as I've said, that exception is not permitted under CUSMA. The amendment eliminates that problematic exception, and I will say that the bill's author is supportive of the amendment as well.

If we look at the three proposed paragraphs that we're talking about here, in the first, subsection 41.121(1), this change makes it clear that the exception only applies to a “work”, “performance” or “sound recording” that forms part of a product in need of repair or maintenance. In other words, it applies to the circumvention prohibition.

If we go to the next proposed one, which is 41.121(2), this is called the “for greater certainty” paragraph. It reads:

For greater certainty, subsection (1) applies to a person who circumvents a technological protection measure in the circumstances referred to in that subsection for another person.

The purpose of this change is to provide certainty that the exception would apply to owners of products and third party repair assistance. It just supports the exception that we've created in the first part.

The third one is actually a new one: 41.121(3). It's called “the non-application paragraph”. It says:

A person acting in the circumstances referred to in section (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright.

In other words, you don't get to have the act apply to you if you're doing the wrong thing. This change clarifies that the exception applies only if it does not constitute an infringement of copyright. This is important, because it not only helps to ensure that the bill is compliant with CUSMA, but it also builds support for Bill C‑244 from copyright owners.

It's a complicated one, but really, it's just about bringing this into alignment with CUSMA, eliminating what I will call the “illegal exception” and putting in place the permitted exception, which is, again, the circumvention prohibition.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Fillmore.

Go ahead, Mr. Williams.

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

It seems clear. It seems like it's a good exception. The problem with it is that when we look at an act, is it nimble or dynamic enough for any exemption? The example I would give is that if there is a trade agreement that is changed, if something were to change with CUSMA or any other trade agreement, you'd have to reopen the act to change the exemptions.

Amendment CPC‑1, which we're going to deal with next may look at a better way to look at exemptions, and what we're trying to do. I brought that question to Mr. Patzer here during interoperability on what other jurisdictions are doing for exemptions that is more nimble or dynamic, meaning that, in the U.S., it's the copyright librarian, and every exemption is reviewed every three years.

There might be a better way to do that. In that case, for this one, because it's not nimble or dynamic, we risk putting fences around any kind of exemption within the bill without having a different method in which we can deal with exemptions. You'll see in the next one. I recommend that it's the minister. Maybe there's a better way we can do that, but in the U.S., when they do look at this, it is reviewed by the copyright librarian every three years. If we put fences on exemptions, like this does.... It's not like they're bad exemptions but if they were to change, you'd have to reopen the bill to change the exemptions, and that's a lengthy process. That is not easy to do.

It's simpler to have a different process. I'm not suggesting a tribunal or anything more cumbersome than maybe having an order in council or having the minister look at exemptions, rather than having it embedded in the bill.

For that, we're going to vote no to this one, perhaps just because I think that there's a better process we can look at.

[The Chair, Liberal, Joël Lightbound]

Yes, Mr. Fillmore, and then I'll go to Mr. Lemire and Mr. Masse.

[Andy Fillmore, Liberal, Halifax, NS]

I wonder, Mr. Chair, if you might invite the officials to offer an opinion on the importance of the amendment.

[The Chair, Liberal, Joël Lightbound]

Sure.

Mr. Blanar, do you want to intervene?

[Patrick Blanar]

Absolutely. Thank you very much, Mr. Chair.

I think, ultimately, the objective here is to be as compliant with our international obligations as possible. Ultimately, it is our view that the inclusion of the device, the ability to trade in devices or to provide devices that allow for circumvention is not consistent with our CUSMA obligations.

It's a pretty complicated issue within CUSMA because of the way it's framed across multiple different articles. Ultimately, there are three different types of prohibitions contained in CUSMA. One is a prohibition on access to works protected by TPMs. The second is a prohibition on providing services that are mainly for the purpose of accessing works or circumventing TPMs. The third is to provide devices that allow for the circumvention of TPMs.

One concern that we have is that.... Sorry, I'm just going to take a step back.

There are some specific exclusions that are listed within CUSMA. There's a set of seven of them. Unfortunately, none of those actually address repair. Repair falls under a catch-all provision. That catch-all provision only allows exceptions to circumvention of the first of those three restrictions, which is to access.

The fact that Bill C-244 and, I believe, many of the other motions maintain that device prohibition creates problems for CUSMA compliance.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Blanar.

We now go to Mr. Lemire.

[Sébastien Lemire, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chair.

I have a technical question.

If BQ‑1 is deemed out of order, would it be possible to somehow turn it into a subamendment to G‑1?

I ask because the Entertainment Software Association of Canada raised concerns in a letter it sent the committee. The association is concerned about Bill C-294's impact on the video game industry and requested an exclusion for video game consoles because the nature of the industry is such that it produces data that can be copied and exported online.

They need a specific exclusion. Obviously, it's not the same as repairing a tractor. There are legal precedents in some U.S. states, including Washington.

I think this is important because it's about protecting the content and intellectual property of numerous video game companies. Not only do they have a presence in almost every province in Canada, but they also are part of a flagship industry in Quebec.

The safety and security of consumers and data are at stake. Gaming platforms are increasingly moving to the web, so removing this safeguard would make it possible to copy and share games. This has repercussions for the funding of the video game industry because companies could see their intellectual property being copied.

For that reason, I propose including our amendment in G‑1, between proposed subsections 41.121(1) and 41.121(2). That would exclude the video game industry.

[The Chair, Liberal, Joël Lightbound]

All right.

Next on my list, I have Mr. Masse, Mr. Patzer and Mr. Dong, in that order.

Go ahead, Mr. Masse.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

I will try to do this politely, but I think it needs to be raised.

I'm comparing this process with what I've done on my private member's bill and others. I have had very little communication about this bill. We've had a couple of meetings here at committee. This amendment tells me that the government is basically tanking this piece of legislation. It's essentially gutting the bill. It has such a temperance against what we need to do.

I mentioned, during Mr. Patzer's previous testimony.... I didn't even mention the Inflation Reduction Act in the United States. I've heard for a long time the fearmongering about our being against CUSMA, USMCA, or whatever you want to call it. Again, they have the Buy American Act, along with softwood lumber, dairy and buy local. I didn't even mention the 18% tariff on solar panels. They're even going against our syrup. There is a series of things going on.

At the same time, it's always said that, if we put in something a little more bold—it's at this stage in the House, right here—we are going to affect our trade relationship with the United States.

I am not going to capitulate, here. I really believe this is....

Again, I haven't had much communication. I don't know whether the member supports this or not. I don't understand why there's a significant amendment like this to a private member's bill, at the last minute. It's quite shocking.

I am going to continue to advocate for real changes. I can't support this amendment. Again, I feel this indicates—I am not trying to be rude.... The reality is that I believe the government is tanking this piece of legislation. That's just how I feel, because, when I look at how other members approach their bills, how communication was done for this one, and so forth.... When you have all of this, it reduces the bill to a motion, in my opinion.

I am not going to support the amendment.

Thank you.

[The Chair, Liberal, Joël Lightbound]

Before we move to our next speaker, I'll remind you there is a subamendment on the floor, right now, by Mr. Lemire, which we'll have to rule on before we move to G-1.

Debate can continue.

I have Mr. Dong, then Mr. Patzer, if I am not mistaken.