Industry Committee on March 8th, 2023

[Dr. Alissa Centivany]

Maybe I'll go first. Anthony is being polite.

Yes, with regard to supply chain shortages, there are two aspects to that. One is to have the capacity to manufacture at home, so certainly to the extent that this bill would enable secondary markets to emerge for add-on products and add-on innovation, I think this bill is critical to guard against the risks of supply chain disruption, similar to the ways in which Bill C-244 mitigated some of those problems by providing a means by which we could extend the useful life of the things that we already have.

[Anthony D. Rosborough]

I would just point out some of the obvious. We're currently experiencing a global shortage of microchips. There are bottlenecks in a whole host of industries, and the ability to achieve interoperability among different devices allows us to achieve new purposes and new functions for the equipment that we already have. Beyond manufacturing and innovating new products that are interoperable, this bill would also help in using more of what we have for more varying contextual purposes. To that end, I think it could aid in dealing with shortages.

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

Thank you very much.

Anthony, you had an amendment proposal to allow for an implied licence when you buy a product. Can you explain a little bit more about that amendment?

[Anthony D. Rosborough]

Currently, under proposed paragraph 41.‍12(1)(a), if you read the entirety of the bill, the assumption is that if you are not a manufacturer of a product or device and you're someone else—for example, a researcher or someone in the process of gathering information towards the development of a product, but you're not yet manufacturing it—you would need to own a copy of the computer program or have a licence to use it. It's not always the case that such a person would have clear ownership of the computer program or a clear licence to use it.

The proposed amendment is that a person who is in ownership of the device with the embedded computer program would have an implied licence to use it. In other words, if you have the device, you're free to make it interoperable with another, regardless of whether there is an explicit licence to own or use the computer program that it runs, if you want to put it that way.

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

Does either of you have comments to some of the defence we've seen on the language and changing the language in this bill to make it a little more clear in a legal sense?

[Anthony D. Rosborough]

There have been a number of different proposals as to how it could be amended, so I—

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

Do you agree that there needs to be more amendments to the language to make it fit the...? Do we need more legal-friendly language in terms of how...? Plain language, I guess, was one recommendation.

[Anthony D. Rosborough]

I think the bill would benefit from some clarity around some of the terms used in paragraph 41.‍12(1)(a). Particularly "manufacturer" and "product" are terms that are somewhat alien to the Copyright Act. They could deserve some attention in terms of making them gel a bit better; however, it's important that amendments to the language don't essentially deprive the bill of its purpose and effect.

To that end, I think there is some room for improvement there, but I would caution against essentially watering it down into being exactly what's already in the act.

[Dr. Alissa Centivany]

Is it okay if I just add one small point?

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

Sure, go ahead.

[Dr. Alissa Centivany]

I think there's always room for improvement in terms of the language of these kinds of bills. I would say that the goal we should be aiming for is not to include less plain language; I think plain language is good. We want our public law to be accessible to all members of society, and plain language helps us get there.

That said, I do agree that additional definitions could be helpful, and I think Mr. Rosborough points to that in the article that he submitted to the clerk.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

Go ahead, Mr. Erskine-Smith.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Thanks, Joel.

I appreciate the concept of plain language—although, if one wants plain language in law, they probably don't go to the Copyright Act.

I want to start with the international experience. We are coming at this in a piecemeal way. There are currently two bills before this committee. I think my colleague Mr. Masse is right that there is obviously an overwhelming desire for change and to deliver interoperability and a right to repair. It's more about how we technically go about this in order to deliver it in the best way possible.

Mr. Rosborough and Ms. Centivany, I'm going to start with you.

Is there another jurisdiction that gets this right?.

[Anthony D. Rosborough]

My answer would be that many jurisdictions are struggling with this issue. The jurisdictions that inherited the Digital Millennium Copyright Act treatment of TPMs as access controls are all struggling with what to do about this. There's no golden case for how it can be best approached.

However, as for the concerns about CUSMA, we've been cautioned that there's an issue with it that we need to be careful about, but what that is can't really be articulated. Personally, I don't find that very satisfactory or persuasive. Article 20.66(4)(h) of CUSMA gives us a clear path to enact new exceptions precisely like this one.

In the absence of a reason that this wouldn't fit within that framework, I think we ought to proceed on the assumption that it's consistent with CUSMA.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Ms. Lovrics, is there another jurisdiction we should be looking at, somewhere, in your view?

[Catherine Lovrics]

As with the discussion we had on the right to repair bill, the Copyright Act has been identified as the barrier to both right to repair and interoperability. I think there's an illusion that removing, amending or broadening the exception will somehow facilitate right to repair. This act doesn't facilitate the handshake.

You could look at other jurisdictions, such as Europe, the U.K., and states in the U.S. where they've looked at other areas of the law, such as competition. There's Mr. Masse's bill under the Competition Act. You could be looking at provincial jurisdictions, and given our division of powers, there would be certain provinces. Quebec has put forward a bill.

I think we need a comprehensive approach. To me, amending the Copyright Act is a bit of a red herring, frankly.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Could you pause? We're not talking about right to repair right now; we're talking about interoperability. Is the answer not...?

You know, I'm sympathetic to some of the concerns of industry. They came before us with concerns that we would create a completely open door to circumvent TPMs, and they wouldn't be able to control it. We might say it's for the purpose of repair, but it's tough.

However, in this particular case, I'm not that sympathetic, because if the industries delivered interoperability, they could still have TPMs. Doesn't this create the right incentive structure for businesses to do the damn thing they should do in the first place?

[Catherine Lovrics]

To illustrate the red herring, I'll take Ms. Centivany's point about the three different computer systems that don't speak to each other. The current exception would enable somebody to do that research to have them speak to each other. The Copyright Act is not a barrier there. That's the point I'm making.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

No. However, companies would instead have the incentive not to have disparate systems that don't talk to each other if we as legislators say, “Look, people are going to be able to circumvent TPMs in order to render things interoperable; therefore, if you want to keep your TPMs in place and not have such easy circumvention, deliver interoperability.”

Doesn't this create an industry incentive to deliver interoperability?

[Catherine Lovrics]

I would think we already have the industry incentive, and we're not seeing it.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

I sincerely disagree that we have any industry incentive towards interoperability. It's quite the opposite, I think.

My last question is.... You are going to provide or propose amendments to us. My ask for you, Mr. Rosborough and Ms. Centivany, is this: We're not going to have you back, as there's timing to this and everything else. It would be very helpful if, once Ms. Lovrics and her team provide amendments to us, we could circulate those around and you could comment on them in writing to the clerk and analysts. I can then at least have a better understanding. They'll make their best case, and then you can provide an answer. I would do that today, but I don't have the amendments in front of me. Making sure we get that in writing would be very helpful.

Otherwise, I appreciate everyone's time.

[Dr. Alissa Centivany]

I would be happy to do that.

[Anthony D. Rosborough]

Likewise.

[The Chair, Liberal, Joël Lightbound]

Thank you very much.

I now yield the floor to Mr. Perkins for five minutes.

[Rick Perkins, Conservative, South Shore—St. Margarets, NS]

Thank you, Mr. Chair.

I'm going to split my time with Mr. Généreux.

Mr. Lawford, in your opening presentation—this is a bit of a follow-up to Mr. Erskine-Smith—you talked about French law, French law being interesting.

How would you incorporate some of the elements you mentioned into this bill in order to achieve those ends? You talked specifically about lists.

I have a second question on the issue of planned obsolescence, which I'll come back to as a separate issue.