Good afternoon, Mr. Chairman and honourable members of the committee.
It is my pleasure to once again appear to share my perspective on copyright, software TPMs and anti-circumvention policy. This time it is in relation to the proposed Bill C-294 and interoperability.
I am a doctoral researcher in law at the European University Institute and a graduate of the Schulich School of Law at Dalhousie University. I am also a practising member of the Nova Scotia Barristers’ Society.
My doctoral thesis explores the design, function and implications of TPMs across the automotive, consumer electronics and agricultural equipment industries. My research includes an exploration into how TPMs impact innovation and interoperability. I have spent a significant amount of time learning from cybersecurity experts, electrotechnical engineers and Canadian innovators to better understand this issue and its relationship to copyright law.
In 2021, I published a peer-reviewed article in the Canadian Journal of Law and Technology that examines Canada’s copyright interoperability framework and addresses many of the issues under consideration by the committee today. I have provided an electronic copy of this article to the committee clerk for your review.
Overall, I strongly support this bill and the concerns of Canadian innovators who have found TPMs to be an obstacle to devising new products and services as well as a source of considerable business risk and uncertainty.
These perspectives demonstrate that innovation in the 21st century does not occur in a vacuum. It's a cumulative process and it thrives when knowledge and expertise can be devoted to improving the technologies we already have to perform new and unprecedented things. In the world of embedded computer systems and the Internet of things, interoperability is synonymous with innovation.
Bill C-294 reflects this reality, and it reflects the needs of Canadian innovators by not allowing manufacturers to prevent competition in secondary markets under the auspices of copyright.
In my remarks today, I would like to make three main points. First, I'll explain why the Copyright Act’s existing interoperability exception is inadequate. Second, I'll explain how the bill could be improved. Finally, I'll clarify the appropriate role and scope of copyright law in this context.
In the concept of interoperability in the act, the existing exception allowing circumvention of TPMs conceptualizes interoperability as the mutual exchange of information between two computer programs. Given the history of this exception, this narrow view is understandable.
The existing exception was included in the act as part of the Copyright Modernization Act over a decade ago. However, a lot has changed since 2011. Policy experts and standards organizations around the world now recognize a much more complex and context-specific understanding of interoperability. This includes embedded systems, computerized devices and Internet of things technologies.
This bill takes the right approach by broadening the application of the interoperability exception to include not only computer programs but also devices in which they are embedded. This is crucial, because the distinction between the computer program and the computing hardware is much less clear than it once was. In the past, it may have been easier to distinguish between hardware and software, but when software now controls the physical functioning of devices and components, the software and hardware blend together. As I wrote in my 2021 article, the Copyright Act’s conceptualization of interoperability needs to reflect today's computing and innovation paradigm. Computers are no longer just boxes with screens and keyboards. They are cars, home appliances, pacemakers, agricultural equipment and learning technologies.
By viewing interoperability narrowly, as purely a relationship between two computer programs, the act’s existing exception does not address the reality of 21st century computing or 21st century innovation.
Here is how the bill can be improved.
Though the bill offers a lot of promise by expanding interoperability to devices and components, there remains one important drawback left over from the existing exception. That is the caveat that the person circumventing the TPM—who is not a manufacturer themselves—must own “the computer program or a copy of one, or has a licence to use the program or copy”.
It may not be clear in every case that a person circumventing a TPM for interoperability has a licence to use the computer program embedded in the device or is the owner of a copy of the program. For this reason, the bill could be improved by making it clear that the ownership of a device or component in which a computer program is embedded creates an implied licence to use that computer program.
Legislating an implied licence to use the embedded program for interoperability would enable Canadian innovators and researchers outside of the manufacturing context to develop interoperable solutions without the prior consent of the original manufacturer. This would create a more open and competitive marketplace and better choices for consumers and ensure that copyright law is not used by foreign multinationals to stymie Canadian research and innovation.
This brings me to my last point: to clarify the role of copyright law when it comes to innovation and computing.
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. Software is a type of work capable of copyright protection, but the physical functioning of the devices that it controls is not and never was intended to be within the scope of copyright law and policy.
If we follow the logic of rights holders, it goes something like this: Where there is computing hardware, there is software; where there is software, there is copyright; and where there is copyright, TPMs can be used to prevent access. The trouble is that even when access to software bears no relationship to infringement, the act still treats that as an unlawful activity.
Though original equipment manufacturers and industry groups may contend to this committee that the bill could enable piracy-related circumvention of TPMs for infringing acts under the auspices of interoperability, this fearmongering is unfounded, for two reasons.
First, I strongly doubt that any of us are interested in making unlawful copies of the firmware used by our microwaves, televisions or laptop computers, and I have a hard time believing that bootlegged copies of firmware would attract much interest on illicit markets.
Second, and more importantly, we need to be clear about what is really being contorted here. The bill is not about enabling piracy under the auspices of interoperability; the bill is about preventing OEMs from roadblocking innovation and research under the auspices of copyright.
At a fundamental level, access-control TPMs in physical devices undermine the public policy goals of the copyright system as a whole. They function as absolute barriers to the diffusion of knowledge, are indefinite in duration and can undermine Canadian competitiveness and innovation in the global marketplace. Innovation, research and discovery are not infringing activities. Canadian innovators should not be held hostage by copyright protections designed decades ago to protect digital content industries from online infringement.
To conclude, I ask this committee to consider amending the bill to include an implied licence to use the computer program embedded in the device or component necessary to achieve interoperability. That would broaden the scope of the bill's application to research and innovation beyond product manufacturing. Following such an amendment, I wholeheartedly recommend that this committee move the bill forward toward royal assent.
Thank you.