Industry Committee on March 8th, 2023

Liberal

Iqwinder Gaheer Liberal Mississauga—Malton, ON

Thank you, Chair.

Thank you to all of the witnesses for making time for this committee.

Ms. Centivany and Mr. Rosborough, thank you again for being here. We really appreciated your testimony on Bill C-244 a few weeks ago. As we understand it, Bill C-294 raises similar concerns around Canada's obligation under CUSMA. Would you agree with this? Are there suggested amendments that you would make or that you want the committee to consider?

Researcher, Department of Law, European University Institute, As an Individual

Anthony D. Rosborough

I'm happy to take the first crack at that question.

In some ways, your question echoes a bit the submissions from IPIC on that point.

My position is that this bill is, in many ways, consistent with Canada's obligations under CUSMA. In particular, we can look to paragraph 20.66(4)(h) of CUSMA, which is the relevant section for TPMs. It says that “a Party may provide additional exceptions or limitations for non-infringing uses of a particular class of works, performances” and so on, where “demonstrated by substantial evidence in a legislative, regulatory, or administrative proceeding in accordance with the Party’s law”. I understand what we're having here this evening to be some form of legislative or administrative proceeding.

It could be other forms of that, but the point is that if there's any sort of wiggle room in the CUSMA obligations for empowering new exceptions to TPM circumvention, the adverse effects on secondary markets is probably the most clear-cut case for why we would have that wiggle room. I can't think of a better example than the use of TPMs that are used primarily to prevent competition and the development of innovative products that follow on innovation.

My position would be that this is consistent with CUSMA and that there's not an issue.

Liberal

Iqwinder Gaheer Liberal Mississauga—Malton, ON

Okay.

Ms. Centivany, do you have anything to add?

Assistant Professor, Western University, As an Individual

Dr. Alissa Centivany

I don't have anything to add. I'm in agreement with Anthony.

Liberal

Iqwinder Gaheer Liberal Mississauga—Malton, ON

That's perfect.

I have a second question, Mr. Rosborough. You said that interoperability will increase innovation. For the record, could you expand on how it will increase innovation and how that could lead to more consumer choice?

Researcher, Department of Law, European University Institute, As an Individual

Anthony D. Rosborough

Sure. I think there's a bit to unpack with the question.

First of all, there is interoperability permitted under the act. There's already an exception for that. The problem is that the exception that exists defines interoperability very narrowly as this process between two computer programs. It allows you to make Zoom work on your Windows machine and your Apple machine. That's the level of interoperability we're talking about.

What it doesn't permit is a much broader conception of interoperability that views technologies not just as computer programs but as integrated devices. They're cyber-physical systems or objects that are computerized. What this bill seeks to do is expand the idea of interoperability under the act to include those types of devices and products. That would enable a whole host of industries in Canada to produce products and services that would expand into new markets beyond just computer programs.

I can't provide you with numbers or evidence as to how that would increase innovation across the country, but I think it's self-evident that when we reach into new types of technologies, we will enable new types of innovation.

Liberal

Iqwinder Gaheer Liberal Mississauga—Malton, ON

Thank you.

My next question is open for all witnesses.

During the study on Bill C-244, there were opposing views on the bill. OEMs were quite opposed to the right to repair frameworks for a number of reasons, including safety concerns and IP theft.

Are these issues of concern for Bill C-294 as well? What are your thoughts on this?

Component, Systems and Integration Manager, Honey Bee Manufacturing Ltd.

Scott Smith

That's a good question.

When we gave our opening statements earlier, we referred to the 4,000 members of the North American Equipment Dealers Association. These are all the companies in Canada and the United States that are impacted by restrictions on their ability to do business by being locked in to a single vendor and by restrictions on their freedom to choose what products they offer and don't offer. I think that's what's at stake here.

From a Canadian perspective, as manufacturers of that equipment, we're absolutely dependent on interoperability. If we cannot have interoperability through this legislation or other legislation that mandates it for products sold in Canada, we have to have some way to reverse-engineer to create the interoperability that's required, with the understanding that we're not interested in their intellectual property and all these things. We're asking for the external interfaces to be fully defined so that we can create this interoperability. To whatever depth we have to dig to achieve that information requirement, we need to be able to do that legally, and that's our biggest concern today.

Liberal

The Chair Liberal Joël Lightbound

Thank you very much, Mr. Gaheer.

I now give the floor to Mr. Lemire for six minutes.

Bloc

Sébastien Lemire Bloc Abitibi—Témiscamingue, QC

Thank you, Mr. Chair.

Professor Centivany, you raised a question about other types of objects and technologies that have not been addressed with the coming of the Internet.

Do you agree with Ms. Stanley that changes to the Copyright Act are not necessary? Can you elaborate on the advent of artificial intelligence and its impact on interoperability?

Assistant Professor, Western University, As an Individual

Dr. Alissa Centivany

With respect to the question regarding the testimony offered by the IP Institute of Canada, my general response would be that if the Copyright Act was clear on interoperability as it stands, then we wouldn't see so many obvious obstacles to interoperability here in Canada.

If that position is correct, then I think what we would need to do is make it really clear to follow-on innovators and others that they are free to do that kind of innovation and add-on work. What I think is that the act as currently stated is actually not sufficient to enable the kind of operability that we're discussing here today.

With regard to the question of AI, that is a really difficult question for a number of reasons, one of which is that AI is most typically a black box. We don't actually know what's happening with many of these systems. We don't know where the data is coming from, where it's being used, how it's being used or what the models are that are being applied.

What I would say is that one of the key ways in which an interoperability provision like the one proposed would help us with respect to AI would be to enable more critical research into how AI is being developed, adapted and applied so that we can make sure that as these technologies continue to be deployed in the world, they're safe and not promoting bias and other harmful social consequences.

Bloc

Sébastien Lemire Bloc Abitibi—Témiscamingue, QC

Thank you.

Mr. Rosborough, do you have any comments about artificial intelligence and its impact on interoperability?

Researcher, Department of Law, European University Institute, As an Individual

Anthony D. Rosborough

In some ways, what we're talking about here is a little bit of comparing apples to oranges. In the one case, it's circumventing the TPM in a physical device for the purpose of making it interoperable with another device or computer program. In some ways, that's quite distinct from circumventing a TPM that protects an algorithmic process to understand how it works for other purposes. In some ways, it's kind of apples to oranges.

You could say, on the question of AI, that there may be some positive social role for TPMs in ensuring that AI systems are not tampered with in a way that produces social harms. However, I think that's a very separate issue from the one we're dealing with today, which is really concerned with secondary markets, competition and innovation. I think that's the pure purpose and spirit of this bill, and I think that's the context in which it should be analyzed.

Bloc

Sébastien Lemire Bloc Abitibi—Témiscamingue, QC

Ms. Lovrics and Ms. Stanley, how does the Intellectual Property Institute of Canada view the arrival of artificial intelligence-based technologies and computer programs in relation to the Copyright Act?

In your opinion, why has this issue not been addressed with the Americans in agreements such as the Canada-U.S.-Mexico Agreement?

March 8th, 2023 / 5:40 p.m.

Member, Copyright Policy Committee, Intellectual Property Institute of Canada

Colleen Stanley

I don't know why the issue of AI in TPM and interoperability hasn't been raised in negotiations with the U.S., but I'm not involved in international negotiations at all.

From the perspective of how IPIC would talk about AI in the context of TPMs, it would be in terms of the safety and security risks that we flag when you put in an amendment that is far too broad. That is one of our concerns with Bill C-294. It may not be intended to be broad, but the language that's used, like “manufactured product” or "device or component", could have many unintended interpretations and consequences.

In the context of the role that AI could have in terms of security, safety, health care and the whole Internet of things, that would be the comment. It's safety and security and making sure there are not unintended consequences from a broad amendment.

Bloc

Sébastien Lemire Bloc Abitibi—Témiscamingue, QC

How much time do I have left, Mr. Chair?

Liberal

The Chair Liberal Joël Lightbound

You have about 10 seconds left, Mr. Lemire.

Bloc

Sébastien Lemire Bloc Abitibi—Témiscamingue, QC

I'll come back to that.

Liberal

The Chair Liberal Joël Lightbound

Thank you very much.

Mr. Masse, the floor is yours.

NDP

Brian Masse NDP Windsor West, ON

Thank you, Mr. Chair.

Thank you to the witnesses for many repeat performances.

I think this issue really is, quite frankly, a matter of political will at this point. We've had a lot of evidence over the years presented to us.

I do want to go to the concerns that are being raised about USMCA or CUSMA or whatever you want to call it.

Ms. Stanley, walk us through what you would envision the process to be for Americans to take us to task if we pass this law.

We have lots of trade issues right now, but at the same time, they have massive subsidization and investments, and even further ones that will come in—like semiconductors and so forth—that are extra restrictions on production and access into Canada.

Let's go with the fear factor here in terms of what takes place for Canada if we pass a law like this, which obviously has protections that are different from those in the United States because of their system. It's similar to my former bill on the right to repair. It was the environmental assessment act on their side that actually made their manufacturers provide others with access to OEM materials for the aftermarket in the auto sector.

Walk us through what would happen.

Member, Copyright Policy Committee, Intellectual Property Institute of Canada

Colleen Stanley

In terms of the objective of the bill, which is to take away barriers to interoperability to improve businesses like Honey Bee and other agricultural parts manufacturers, the issue is just a technical one. The current CUSMA section on technological protection measures and exceptions to them doesn't allow for non-infringing exceptions. In the way Bill C-294 is drafted, it seems that it would allow non-infringing exceptions, at least in some cases. It really gets down to a drafting issue.

I'm not talking about the broad policy issue here. It's that, as currently drafted, the bill would put us offside with CUSMA, and in particular of article 20.66.

I'd like to ask my colleague, Catherine Lovrics, if she has additional comments.

Chair, Copyright Policy Committee, Intellectual Property Institute of Canada

Catherine Lovrics

On the initial question, which was about what the remedy was and what the U.S. would do if we're found to be offside, I'm not sure if that's more of a political question than a legal question.