Industry Committee on March 8th, 2023

[Carlo Dade]

If I may, on your first question, especially with the new NAFTA, the Americans, in the Library of Congress decision to exempt agricultural equipment, made a special case to prioritize agriculture. They recognized that agriculture is a different sort of industry and has different sorts of needs. In terms of the new NAFTA and worrying about the Americans, that would be a safe area.

Second, in Canada, for over 100 years, we have recognized the special role that agricultural equipment plays on the Prairies. We have over 100 years of having special requirements for ag equipment manufacturers and interventions in private sector actions in ag equipment acts in Canada.

In terms of looking not for what to exempt but for what to include, you have a strong case for agriculture, both in the U.S. and in Canadian law.

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

Thank you very much, Mr. Dade. That was very important.

Mr. Rosborough, you touched upon the consumer protection aspect of what we're trying to achieve here. I know that much of it is under provincial jurisdiction. Do you have any thoughts on what we need in terms of accompanying provincial legislation to make this thing work?

[Anthony D. Rosborough]

Of course federal-provincial co-operation is needed for this type of policy, because we're often dealing with products that are the subject of contract warranties.

Consumer protection, though, to answer your question, can mean a few different things. With capital “c” and “p”, consumer protection law in terms of the statutes provincially will require provincial co-operation. However, there is federal legislation that speaks to consumer product safety. In fact, the federal Consumer Product Safety Act is maybe one example of how the federal government could take leadership in this direction—of course, not in the absence of provincial co-operation, but in harmony with it.

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

On this point, what role do provinces play in terms of interoperability? We talk about the consumer protection aspect, but what about interoperability? What role do you think the provincial government or legislature can play?

[Anthony D. Rosborough]

As I mentioned, consumer protection acts in the provinces, and other provincial legislation that deals with the sale of goods and contracts for goods and services, could be an issue when there is a contractual restriction on interoperability, as between the manufacturer and the consumer. That's an area where provincial legislation could come in to ensure that there's freedom to achieve interoperability irrespective of some contractual term to the contrary, and that a warranty might still be upheld even if the device is modified for the purposes of interoperability.

These are areas where the provinces could provide some clarity and step in to ensure that contracts for warranties or in relation to the terms of use, or for the purchase and sale of goods, would be able to accommodate these types of modifications.

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

Does anybody else want to chime in on this point?

[Carlo Dade]

Sure, I will, very quickly.

The agricultural equipment acts in the provinces would likely have to be updated too, so there would need to be some coordination between the federal government and the provinces. We've already started the work of informing provincial legislatures and MLAs on the Prairies about this issue.

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

Thank you, Mr. Dade.

I think Ms. Centivany has a point.

[Dr. Alissa Centivany]

Yes, thank you. It's a very quick point.

I think we can all recognize, both in this discussion and in the discussion on Bill C-244, that there is broad support across Canada, across industries and across partisan affiliations for these kinds of bills. While changes to the copyright law's TPM provisions are not going solve interoperability or right to repair on their own, and there will be other legal considerations at the provincial level that need to be taken into account, I see this as an opportunity for provinces to perhaps distinguish themselves in a way that is pro-innovation, pro-competition, pro-consumer. If we consider the United States, we know that California has more progressive laws and promotes positive shifts, while other states in the country may be more conservative.

I actually see this as being a really promising possibility.

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

It's to put together a platform for the province to compete to do some of the work.

Chair, how much time do I have left?

[The Chair, Liberal, Joël Lightbound]

You're over by three minutes, Mr. Dong, but I felt generous.

I now give the floor to Mr. Lemire.

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

Thank you, Mr. Chair.

Ms. Lovrics or Ms. Stanley, the anti-circumvention provisions of U.S. copyright law, that is, Chapter 17, paragraph 1201(f), contain an exception for interoperability purposes. How does this exception compare to the one currently in the Canadian Copyright Act, or to the expanded exception proposed in Bill C‑294?

[Colleen Stanley]

Ms. Lovrics, could you address this question?

[Catherine Lovrics]

I'm sorry. Is it how does something compare to what's in Bill C-294, the current provisions?

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

Yes. If we compare the interoperability provisions of the U.S. law against the current Canadian law or Bill C‑294, can we tie in? Will these exceptions help bring our position into line with the Canada-U.S.-Mexico Agreement?

[Catherine Lovrics]

Yes is the short answer, and we'd encourage the study of that. The U.S. provision provides for reverse engineering for the sole purpose of identifying and analyzing those elements of a program that are necessary to achieve interoperability of an independently created computer program with other programs.

Second, and apart from that exception, there's also a regulatory authority, as Ms. Stanley mentioned earlier, whereby specific exceptions can be made. For example, there's a specific exemption dealing with interoperability for jailbreaking phones, or what is called jailbreaking a phone, and it's subject to regulatory review. It's done in a manner that is compliant with our treaty obligations in subparagraph (h), which Dr. Rosborough mentioned earlier. I do think that looking at that approach is an approach that should be considered.

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

In your opinion, are the amendments proposed in Bill C‑294 consistent with the Canada-U.S.-Mexico Agreement? Do you have any suggestions for wording to avoid any problems with the Americans?

[Catherine Lovrics]

Yes, following this we'll be submitting a draft possible amendment for consideration that we think would be compliant and also achieve the policy objectives as we understand them. We're proposing a small amendment to subsection 41.12(1), and then—separate and apart—adding a mechanism to permit specific exceptions to be made for components or parts, for example, in the agricultural industry that would consider specific factors. “Yes” is the short answer.

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

Thank you very much.

[The Chair, Liberal, Joël Lightbound]

Thank you, Mr. Lemire.

Mr. Masse, you have the floor.

[Brian Masse, NDP, Windsor West, ON]

Thank you, Mr. Chair.

Mr. Lawford, we have a couple of bills in front of us right now. Do you have any suggestions in terms of prioritization or any thoughts of a greater reform that we might be looking at on this?

I have my own private member's legislation, but I've chosen another bill that's in the House. We have a tabled one on the auto sector on this as well. I'm just wondering what your thoughts are, because obviously there's a problem. Three different political parties and three bills coming forth on the subject matter are a strong indication that the status quo is not acceptable.

[John Lawford]

The difficulty you have is that all of the bills are trying to slice this in a slightly different way, but they're complementary, I think.

In relation to the one that we're presently speaking about, from a consumer point of view I think it's going to look ridiculous if our average consumer can't go into an independent repair shop to fix their car and instead be told that no, you have to go to Chrysler to do that. That's nonsense and that has to be fixed.

To hear that homegrown editions, such as a manufacturer like Honey Bee, can't operate in Canada and are disadvantaged vis-à-vis the United States because John Deere operates there is also nonsense. That has to be fixed.

The other bill, Bill C-244, which I believe we testified on as well, is taking a bigger scope to try to aim at a general right to repair. I agree that it would be much better done inside a review of the Copyright Act in a holistic manner so that concerns from specialty IP lawyers and trade people could be addressed, but you're trying to do it through Parliament.

I think the bottom line, though, is that you're trying to say that the consumer and small business dissatisfaction with the copyright balance that was struck is strong. The only thing I would add to the mix, which I was trying to say today, is there's a whole consumer protection aspect here that's not being brought into the conversation. It's done in other countries through things like consumer protection codes at a federal level, and we just don't have that in Canada. The best place I can think to put it is in the Competition Act. I don't want to use all of your time, Mr. Masse, but I hope that answers in part your question.

[Brian Masse, NDP, Windsor West, ON]

That was very good. I think I'm out of time, anyway, but that was very helpful.

Thank you, Mr. Chair. Thank you, Mr. Lawford.

[The Chair, Liberal, Joël Lightbound]

Thank you very much, Mr. Masse.

Mr. Williams, you have the floor.

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

Thank you, Mr. Chair. Thank you to all the witnesses for being here.

Ms. Centivany and Mr. Rosborough, thank you, and welcome back to the committee. I think you're both experiencing some déjà vu, as you were here just about a month ago almost on the same topic.

I want to also delve back into the topic I raised with you both last month, which is supply shortages. Are products that are fully interoperable with each other vital to preventing or lessening the impact of the kind of supply chain shortages we've seen during COVID-19?