Industry Committee on March 8th, 2023

[Catherine Lovrics]

Thank you for acknowledging that.

I do think that somebody who is an expert in trade relations really would be better suited to speak to what the remedy would be under CUSMA. I will also flag that while it's only provisionally implemented, there are similar concerns with respect to CETA, so both of those regimes should be looked at. TRIPS doesn't go quite as far, but I think TRIPS also is a treaty that should be looked at.

Picking up on my colleague Ms. Stanley's comments, I think our submissions are not that the policy objectives behind the particular bill shouldn't be.... We take no position on the policy objectives. We're saying that from a technical perspective, we had a team of very seasoned copyright lawyers looking at the wording of the bill and we had trouble reconciling how it would actually operate, given other provisions, and ultimately, from a lawyer's perspective, we were concerned that if this bill is implemented, it's going to introduce a ton of ambiguity and also be ineffective, given that this seems to take a very discrete look. It uses plain language that is out of step with the rest of the Copyright Act.

Picking up on Dr. Rosborough's comment with respect to whether or not embedded products are covered in the first place, from our perspective, that's a non-issue. If he's in fact correct that somehow computer software embedded in a product is no longer computer software, then this is moot. This whole conversation is moot because we don't trigger the TPM protections in the first place, and there is clear case law in point that computer software does include embedded software.

I think we're speaking from a technical perspective. Looking at the specific wording of the act, it seems to not achieve the objective, and there are also implications under various treaties that should be considered as wording is looked at for the purpose of further amendment.

I'm sorry to go on.

[Brian Masse, NDP, Windsor West, ON]

No, no. It's very helpful.

I will wrap up here, Mr. Chair, as I know I'm running out of time.

Perhaps this committee needs some trade discussion with regard to this bill, because on this bill and others we have continually run into the accusations that we run up against USMCA or CUSMA or whatever you want to call it.

I'm very familiar with the process to go through it, but it seemed to scare us off from taking any action. Then at the same time, if that is true, perhaps we need some definitive understanding of the consequences and the process to make a political decision about a bill at this point in time, because I think we have heard enough testimony over the years.

Thank you, Mr. Chair.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Masse.

I'll give the floor to Mr. Dade, who wants to intervene.

[Carlo Dade]

I'm going to address the international trade aspect.

On chapter 31, you're looking at a dispute settlement claim from the Americans under chapter 31. You're already facing this with the Americans over dairy TRQs. Others have been raised.

The issue for the Americans, though, is that with their exceptions to the Digital Millennium Copyright Act that allow breaking of digital locks for certain issues in the U.S., the Americans, I would argue, have a bit more difficult case. We're asking for something that I would let the experts explain the exact nature of it, but the Americans have done something in this direction, so it's not like we're pulling something out of a hat that the Americans not only haven't seen but don't already have.

On the exact degree to which that statement holds, I think you would need to bring in intellectual property lawyers and those participating in negotiations internationally to help you work it out.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

Mr. Vis, you have the floor.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you.

My first question is for Ms. Stanley.

Discussions of interoperability in Canadian copyright law often reference the Federal Court case of Nintendo of America v. King as one of the only cases in which a Canadian court has considered the technological protection measures circumvention provisions of the Copyright Act.

What did the court say in this decision? How has the court's interpretation of the Copyright Act's technological protection measures circumvention provisions affected their application as it relates to interoperability?

[Colleen Stanley]

I would defer to my colleague Catherine Lovrics on this question. I know that she's more familiar with that case.

[Catherine Lovrics]

Thanks very much, Ms. Stanley.

Thanks for the question.

First of all, I think the King case was not really about interoperability. It wasn't about homebrew cases; it was about somebody who was trafficking in pirated anti-circumvention devices and who, as part of the defence, raised that these devices theoretically—which on the facts seemed to be case—could also be used for homebrew, but the evidence was pretty clear that this wasn't what they were being used for. They were being used to reproduce infringing games.

I think that in the context of what that case was really about, that decision wasn't about interoperability; it was about somebody who was trafficking in devices that basically allowed for infringement of copyright. I think that's the first thing.

On the other thing, I think Dr. Rosborough has taken the position that the case reads in some necessity requirement to the interoperability provision, which on the facts of the case and on the decision itself I don't actually think is the case.

I'm happy to discuss that further.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Thank you.

Ms. Lovrics, your colleague mentioned three points that we need to consider: how the act works as a whole, accounting for treaty obligations, and societal safety and security.

On the second point, accounting for treaty obligations, would it be fair to say—and I am far from being an expert on this subject—that the intention of this bill is to give American manufacturers similar to Honey Bee the capacity to do what they can already do under the copyright laws of America?

[Catherine Lovrics]

If the objective ultimately is to facilitate circumvention of TPMs for the sake of non-infringing interoperability, I think we can look to what our trading partners have done from a legislative as well as a regulatory perspective. Presumably, if we take a consistent approach, we would be likewise onside.

I think to look at the—

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Stop there. Let's stop right there. That's a really important point. We could likewise be onside.

The first point was looking at the act in the context of the entire Copyright Act, but Ms. Stanley also mentioned that some of the language is a little grey and unclear. You guys are experts on reviewing the application of copyright laws in Canada. How can we improve the language to get over your concerns about some of the grey areas in what's currently being proposed in this bill?

[Catherine Lovrics]

Following our appearance today, we will be providing submissions that are being finalized now. They will provide proposed language for consideration. With respect to paragraph, 41.12(1)(b) as proposed in the act, we had a lot of difficulty understanding what it means. Some readings of it suggest that reverse interoperability is what's being provided. There's no definition of “product”. There's a bunch of ambiguity in that provision.

With respect to (a), small amendments are ultimately what we would propose there, to the extent that the goal is really to be clear that, as Ms. Stanley stated, “not-so-smart devices”—

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Okay. Thank you. I don't mean to interrupt you, but I have very limited time. That's very helpful.

Ms. Stanley, the third point is societal safety and security. How would you define societal safety and security in the context of the Copyright Act? How should we, as legislators, view that point in the context of drafting this legislation? That in itself is a very broad statement to give members of Parliament. Right away I'm thinking, “Are we going to have equipment that doesn't work well? Is someone going to die?” Are there examples of this happening in Canada that you're aware of with your trade expertise?

[Colleen Stanley]

Just to be clear, I don't have trade expertise. I'm an intellectual property lawyer. I have copyright expertise.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

I mean trade in the context of your profession. My apologies.

[Colleen Stanley]

It's just one of the things we want to bring up in terms of how broad the approach is and how we would recommend more of a regulatory exception-by-exception approach, as they have in the United States. It's done through the Library of Congress. Every year they come out with a list of exceptions.

Perhaps I could just make a quick point. Everything I'm hearing about what's needed to fix this problem, which sounds like a big problem, is something you're already allowed to do under the Copyright Act. That's clear. All of the copyright lawyers on our committee agree with that.

When you're saying that they need to supply external specifications and that internal interfaces need to be fully defined, I think a lot of what might be required here is outside of the Copyright Act. The Copyright Act provides for almost everything. We could make these amendments that would make some of it clear, especially with respect to “not-smart” devices. However, if you're talking about somebody supplying you with external specifications, I think that goes to what the Public Interest Advocacy Centre was saying, which was that it's more in the realm of the competition laws and the consumer protection act.

The Copyright Act is really not blocking anything here that I can see.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Okay.

In my remaining time, Ms. Centivany, in the context of our discussion today, would you like to comment on the statement that the copyright law is not an impediment to industry ?

[Dr. Alissa Centivany]

Thank you for the question.

I completely disagree. Let me give you a simple example from my own life.

I have three computers at home. I have an Apple computer, a PC and a machine that runs Linux. None of these computers talk to each other. They don't talk to each other because they can't. From a technical perspective, they were designed not to be able to talk to each other. It's the same thing with all the peripherals, connectors and things. Even the software programs don't want to connect to each other. The claim that interoperability is not a problem flies in the face of our common sense, daily experiences with technology.

I could also very quickly respond to the safety and security issues that were raised.

During my testimony on Bill C-244, opponents raised safety and security issues as well. My response with regard to interoperability is roughly the same: To the extent that safety and security are legitimate concerns, copyright law is not the right law to look to for protecting those interests. There are other laws that do that.

In addition, positioning consumers and the third party technicians, providers or follow-on innovators as threats is, I think, blatantly anti-consumer and anti-competition.

Finally, to the extent that safety and security are real issues caused by hacking or malfeasance of some kind, hackers already have sophisticated tools at their disposal to engage in those things. This bill isn't going to change that.

Perhaps I'll stop there. Thank you.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

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

[Han Dong, Liberal, Don Valley North, ON]

Thank you, Mr. Chair.

I want to thank the panellists and witnesses for their interventions. We're having a fascinating conversation.

The conversation about compliance with CUSMA is at the top of my mind, as well, but I understand my colleague already talked about that. Perhaps we'll have further discussion with another set of witnesses later on.

I want to ask you a question about the industry or class of product we should consider exempting. We heard, in previous testimonies, whether they were on Bill C-244 or this particular bill, industry coming forward and saying, “We need to be exempted from these bills.”

I will start with that. It's an open question for anyone who wants to comment on it.

Go ahead, Mr. Rosborough.

[Anthony D. Rosborough]

My answer to that is fairly straightforward: None should be exempt.

There's no policy reason for the Copyright Act to be industry-specific for certain types of exceptions or limitations. There's no real justification for why that should be the case. Industry groups may come to you and say, “It's already been solved by an independent agreement” or “It shouldn't apply to our industry, because it will produce certain disadvantages in competition.” Again, however, it's not the role of copyright policy to discriminate among the interests of different industries. The copyright law, in fact, should be operating agnostic to these types of concerns. I suggest the same approach should be taken here.

[Han Dong, Liberal, Don Valley North, ON]

Thank you.

I have a follow-up question.

We heard from the medical devices industry. They said the type of products they produce and include in the market may have a direct impact on human safety and health.

What do you say to that?

[Anthony D. Rosborough]

I'm assuming the question was directed at me.

[Han Dong, Liberal, Don Valley North, ON]

Yes, thank you.

[Anthony D. Rosborough]

Those considerations are certainly valid, particularly when we're dealing with sensitive information or data that could be personalized.

Again, however, I think we need to remember the role of copyright law. There's legislation for public and consumer safety outside of the Copyright Act. As one of the witnesses from the Intellectual Property Institute of Canada testified, public health and safety is not their area of expertise, nor is it the expertise of copyright policy.

Where those concerns exist, the government should take action to enact legislation that protects Canadians from dangerous products. However, I don't think the Copyright Act is the appropriate place to incorporate those considerations. What ends up happening is public interest, access to information, innovation and those types of concerns end up bearing the cost of it.

It's not the appropriate role for those types of policies.