Industry Committee on March 8th, 2023

[John Lawford]

You're right. I don't think planned obsolescence would fit well into this bill, but I do think the obligations that are in the French law to tell people what is replaceable and how long it will be available on the market would be helpful here.

As long as you're not in a monopoly situation like John Deere, where only these guys, or maybe one or two other manufacturers, build what attaches to that equipment, in more consumer product areas, such as the smart home, you might have a choice of three, four or five smart home providers. At the moment, we don't know what they're going to support or how to replace the pieces if they break in these systems. Consumers can't be sure that they won't pick a system that is quickly outdated and doesn't work. Then they have to replace the whole system.

Having a little bit of information at the front end about replacement parts and being allowed to do that would seem to be complementary to what this bill is trying to do, and to some extent Bill C-244.

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

How do you take that to the next step? What does that look like? Is the manufacturer responsible, through their website or whatever, for keeping an up-to-date list? Do the people who provide those parts and systems have to get approval of that manufacturer in order to do that? How does that work?

[John Lawford]

If I understand correctly, the manufacturer has to make an obligation to try to support the third parties, but they are not required to. If they are producing their own parts, I think they have to continue to make them available for five years beyond the time the product is first offered to the public. After that, it gets hazy to me.

I understand that the concern might be over-regulation. I agree that there is some point at which we want to make this reasonable. The idea is that you're going to tell people what your intentions are for the repairability of the product up front.

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

It's over to you, Mr. Généreux.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Ms. Centivany and Ms. Stanley, there is more and more talk about new artificial intelligence technologies such as ChatGPT and all the similar software to come.

How will, can or should copyright or Canadian or international copyright law evolve in relation to interoperability with respect to these new technologies, which would allow a company like Mr. Pegg's to write a program to run equipment in 20 minutes?

How do you see all this evolving in relation to the society we live in today and in relation to copyright? Do you see a connection in all this? Am I too far ahead of my time?

[Dr. Alissa Centivany]

I'll respond first, if that's okay.

Yes, you might be ahead of your time.

I would say a couple of things. As a general matter, copyright law has always struggled with new and emerging technologies. Part of the reason is that copyright law is inherently retrospective. It's backward-looking. It's oriented around precedent and analogizing and distinguishing to things that have come before. The nature of emerging technology is that it's forward-looking. It's innovative. It throws us into new and unanticipated kinds of situations.

I would say there's always a tension between copyright and emerging technology. Figuring out how to recalibrate the balance every time an innovative or disruptive technology comes along is always a challenge, whether it's the player piano or whether it's AI.

With AI specifically, the copyright issues have not been borne out yet. I think a lot of it comes down to how the data that's being used in these processes is oftentimes protected and the outputs are oftentimes potentially infringing. That's sort of the area where as a researcher I look at copyright implications of AI. That doesn't necessarily tie into interoperability, aside from the issues around whether researchers are able to analyze these technologies, as I mentioned earlier.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Ms. Stanley, do you have any comments?

[Colleen Stanley]

If I perceived your question correctly, it's about interoperability and how it would relate to AI going forward.

If you're looking at AI, it's really the same issue that we have here today. Whether it's software that enables an AI interface or software that enables an operating system for a tractor, it's still software and it's protected under the Copyright Act. There are these exceptions for interoperability and for breaking TPMs to make them interoperable.

In the case of AI, the approach that IPIC recommends for addressing the objectives here would also apply to addressing issues with respect to circumventing TPMs for AI in that you would have to make sure that it makes sense in the context of the copyright. You would also have to have an eye to safety and security concerns, I think, especially with respect to AI.

The approach we're advocating is something that's more akin to what the U.S. has with the Library of Congress and enumerated exceptions. It's something that takes a case-by-case look at each exception that is enacted under the Copyright Act.

[Bernard Généreux, Conservative, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Chair, I believe Mr. Dade would like to speak, if you will allow it.

[Carlo Dade]

We're getting ahead of ourselves. This gets to the question from the honourable member from Beaches—East York.

Your hand is going to be forced. You're already talking about how we deal with things that were negotiated in the new NAFTA agreement and how we deal with things that were negotiated in the TPP.

Canada is in the process of considering—

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

Mr. Chair, there is no interpretation.

[The Chair, Liberal, Joël Lightbound]

Wait a moment please.

[Carlo Dade]

Can I continue?

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

Please do. We had lost the French interpretation.

[Carlo Dade]

I see. I will continue in English.

Canada is in the process of considering entering negotiations on the DEPA, the Digital Economy Partnership Agreement that's coming out of Asia. You're going to have your hand forced. If you do not hand Canadian negotiators a set position in Canadian law when they enter these negotiations, they are in the weaker position to argue for and defend Canadian interests.

What you're doing is not getting ahead of the curve. You're preparing Canada to be able to defend its interests in these negotiations like the DEPA and to avoid having to come back to this committee, wondering how we deal with obligations we've made in the DEPA and other agreements.

[The Chair, Liberal, Joël Lightbound]

Thank you.

Mr. Erskine‑Smith, you have the floor for five minutes.

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

Thanks.

We're going to have a further conversation, I think, at this committee around ensuring compliance with CUSMA. Obviously, it applies to Bill C-244 as well. It's been a more challenging conversation for this bill as well.

To Mr. Rosborough's point, as I understand it, you mentioned article 20.66(4)(h). However, article 20.66(4)(a) says:

non-infringing reverse engineering activities with regard to a lawfully obtained copy of a computer program,

Okay. Check.

carried out in good faith with respect to particular elements of that computer program that have not been readily available to the person engaged in those activities, for the sole purpose of achieving interoperability of an independently created computer program with other programs

One would think.... The fact is that interoperability is clearly marked out here as an exception. You then have the basket clause in paragraph (h) that you pointed to.

I guess the question is not for you, Mr. Rosborough, but for Ms. Lovrics or your colleague.

Given articles 20.66(4)(a) and 20.66(4)(h), so that I'm better prepared to ask the question when we have a trade expert in front of us, how should I understand a CUSMA objection in the course of Bill C-294?

[Catherine Lovrics]

I'm not sure.

Colleen, do you want to take this one?

I would first point out the deletion of “sole”. I'm not in the room—I'm sorry—and I can't see if....

[Colleen Stanley]

The deletion of “sole” in the....

Do you want to take this one?

[Catherine Lovrics]

Sure.

I think ultimately it will depend largely on where the language lands. Dealing first with proposed subsection 41.12(1), the deletion of “sole” may in and of itself bring us offside on the provision. Proposed paragraph 41.12(1)(b), as worded grammatically, arguably provides for reverse interoperability. The language is just unclear.

Given the ambiguity, depending on how it's applied, I think there is a risk that proposed paragraph 41.12(1)(b) goes beyond it, and that it goes potentially beyond (h). Our view is that we would prefer a regulatory approach to a legislative approach. I take Dr. Rosborough's position that this is a legislative process we're undertaking, but to our mind—

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

One might prefer a regulatory approach. That's fair. I'm sympathetic to the idea of a regulatory approach. If the government put forward a comprehensive regulatory approach that checked a lot of these boxes and checked some of the boxes Mr. Lawford's been talking about, I'm open to that suggestion, but we have what we have in front of us, and I'm hearing that there are objections based on CUSMA. I doubt that the word “sole” ultimately upends the whole thing.

I take your point that (b) doesn't fully fall within the exception for proposed paragraph 41.12(1)(a), but you'd think that there's a pretty good argument that 4(h) in CUSMA would encompass it, given we're really talking about the same thing and that proposed paragraph 41.12(1)(a) is already there, so interoperability is already there as a premise. It's already there as an exception.

On this, what would be helpful for my purposes, rather than going back and forth in this short time, we are going to I think be engaging trade experts in this space, so if you were to follow up in writing with the core.... The questions have to be framed in some way. It would be nice to be fully prepared so we can have a thorough conversation with those trade experts and make sure all concerns are properly addressed in full. I think Mr. Rosborough made a pretty compelling case around proposed paragraph 41.12(1)(a) and CUSMA's 4(h), so if you're not satisfied, then putting those concerns and that lack of satisfaction in front of a trade expert would be helpful for us.

[Catherine Lovrics]

Sure. Just to be clear, I think our primary concern is actually inconsistency within the context of the Copyright Act itself—

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

I get it, and you'll have amendments for us on that.

[Catherine Lovrics]

Yes.

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

Perfect.

Thanks, everyone.