Thank you.
Mr. Chair and honourable members, on behalf of the Intellectual Property Institute of Canada, thank you for the invitation to appear today as part of INDU's study. My name is Colleen Stanley, and I am here as a member of IPIC's copyright committee and a member of the subcommittee on interoperability.
IPIC is pleased to provide comments in response to Bill C-294. IPIC recognizes that the bill aims to remove barriers to the development of third party parts by the Canadian manufacturing industry, particularly in the agricultural sector. The subcommittee studying Bill C-294, however, has had some difficulty in understanding exactly what the specific objectives of Bill C-294 are, as the wording is somewhat uncertain and ambiguous.
From what we can ascertain, the proposed amendments appear to target two main objectives. The first objective is permitting circumvention of a TPM to obtain information from a computer program for the purposes of making it interoperable with another computer program when one or both computer programs are embedded in hardware. In this objective, we're talking about smart products being made interoperable with other smart products. By “smart” products, we mean products that have code or embedded software.
The second objective we see is permitting circumvention of a technological protection measure to obtain information from a computer program, embedded or otherwise, for the purpose of making it interoperable with another product that may not be smart—i.e., making smart products interoperable with non-smart products.
With respect to objective one, the smart interoperable with the smart, IPIC's response is that the amendments are unnecessary. Subsection 41.12(1) in its current form already permits the circumvention of a TPM for the purpose of interoperability of computer programs embedded in hardware. It is clear in Canadian copyright law that “computer program” includes embedded software. The definition of computer program in the Copyright Act is broad, and includes this: “a set of instructions or statements, expressed, fixed, embodied or stored in any manner”. Case law to date supports this interpretation.
In addition to the amendments being unnecessary, they would introduce uncertainty into the Copyright Act. The term “computer program” is used throughout the act, and in each instance is interpreted to include embedded software.
With respect to objective two, where we're talking about smart programs being interoperable with not-so-smart programs, the amendments will likely not achieve the intended objective. That's because the subsection being amended by Bill C-294, subsection 41.12(1), does not work in isolation. It works in conjunction with two other sections of the Copyright Act. One section provides that the benefit of the TPM interoperability exception is lost if the circumvention enables a copyright infringement. The other section provides that reproducing a computer program for the purposes of making it interoperable with another computer program is not an infringement of copyright, but making a computer program interoperable with a product or device is not covered by the infringement exception.
This does not necessarily mean that an infringement would result from breaking a TPM, but in many cases it could. Therefore, as drafted, Bill C-294 would end up creating a TPM circumvention exception that may be available only sometimes or not at all.
With respect to objective two, there is also the issue of treaty compliance. CUSMA sets out the exception for circumventing a TPM for purposes of interoperability and provides that such exceptions be for the sole purpose of achieving interoperability with another computer program.
As well, the use of a broad term like “manufactured product” will introduce uncertainty into the Copyright Act and may result in a TPM circumvention exception that is much broader than originally intended.
In conclusion, if the government wishes to pursue the policy objectives in Bill C-294, IPIC advises taking an approach that considers three factors. The first is how the Copyright Act works as a whole. As discussed, a number of sections of the act work together with subsection 41.12(1), but Bill C-294 amends only that one subsection.
They also have to take into account Canada's international treaty obligations. These require that any exception to the protection of a TPM be carefully crafted, narrowly focused and enable only non-infringing uses.
The third factor is societal safety and security issues. TPMs play a vital role beyond intellectual property protection, and circumventing TPMs can open access to sensitive or private information stored within a computer program or impact its safe operation. The broad variety of TPMs and their related business models calls for a legislative framework that identifies specific cases in which safety and security can be taken into account.
In conclusion, a targeted regulatory approach with a framework for case-by-case assessment that would consider the risks and benefits of each exception is the approach recommended by IPIC to address the policy objectives raised in Bill C-294. IPIC will provide suggested wording for proposed amendments that would address these concerns in its brief, which will follow shortly.
Thank you very much.