I call this meeting to order.
Welcome to meeting number 61 of the House of Commons Standing Committee on Industry and Technology.
Pursuant to the order of reference of Wednesday, November 30, 2022, we are considering Bill , An Act to amend the Copyright Act (interoperability).
Today's meeting is in hybrid form, pursuant to the House order adopted on Thursday, June 23, 2022.
I want to begin by thanking all the witnesses who are joining us today on this Wednesday afternoon, and offer our apologies on behalf of the committee for the brief delay in starting the meeting. We had to vote in the House.
Without further ado, Mr. Lemire, you have the floor.
Thank you for checking that.
With us today, we have, as individuals, Ms. Alissa Centivany, assistant professor at Western University, and Mr. Anthony D. Rosborough, research fellow in the Department of Law at the European University Institute, joining us by videoconference.
We have, from the Canada West Foundation, Mr. Carlo Dade, director of the Trade and Investment Centre, here with us. From Honey Bee Manufacturing Ltd., we have Mr. Jamie Pegg, general manager, and Mr. Scott Smith, manager of components, systems and integration.
From the Intellectual Property Institute of Canada, we welcome back Ms. Catherine Lovrics, chair of the Copyright Policy Committee, and Ms. Colleen Stanley, member of the Copyright Policy Committee.
Finally, from the Public Interest Advocacy Centre, we welcome Mr. John Lawford, executive director and general counsel.
Welcome, and thank you all for joining us.
We have a very busy meeting today.
Without further ado, we will begin with you, Ms. Alissa Centivany. You have the floor for five minutes.
Good afternoon, Mr. Chairman and honourable members of the committee.
My name is Alissa Centivany. I'm an assistant professor at the faculty of information and media studies at Western University, where I work on technology, policy, law and ethics, and I serve as co-director of Tesserae, The Centre for Digital Justice, Community and Democracy at Western University.
I have a JD specializing in intellectual property law and a Ph.D. in information science. I've held research appointments at the Center for Law & Technology at the UC Berkeley law school and at the Centre for Innovation Law and Policy at the University of Toronto law school.
I'm currently the primary investigator on a SSHRC-funded study of copyright, computerization and the right to repair. I'm grateful for the opportunity to speak with you today about Bill . This bill improves the existing exemption, but in my view, it doesn't go far enough.
First, I'd like to acknowledge that this topic is both critically important and also somewhat inaccessible. Interoperability demands that we navigate between distinct, sophisticated, highly technical fields—copyright law and technological protection measures, or TPMs, on the one hand, and the design of complex emerging technologies on the other.
This is no easy task. I caution the committee to be wary of what I call “strategic befuddlement”, a tactic of using overly technical jargon that is employed by some stakeholders to obfuscate and confuse, rather than illuminate, what's really at stake. With that in mind, I'd like to make a few brief, hopefully straightforward, big-picture points and offer a few recommendations.
Interoperability is the act of making a new product or service work with an existing one. This includes peripherals, consumables, interfaces, data, software, replacement parts and so forth. Interoperability is good for consumers, for research, for follow-on innovation and for competition. The standards and shared norms at the heart of interoperability make life simpler, more efficient and more connected.
Interoperability can be co-operative, ambivalent or adversarial. It's this last category, coined by Cory Doctorow and the Electronic Frontier Foundation, that is perhaps most relevant to our discussion today. Adversarial interoperability, also called competitive compatibility, refers to new products and services connecting to existing ones against the wishes of the original company.
Before TPMs were added to the Copyright Act, this form of non-consensual interoperability was a normal way of innovating in tech and other sectors. TPMs changed that, though.
TPMs were originally intended to create artificial digital scarcity so that creators of creative and artistic works who feared that the burgeoning Internet would lead to unfettered infringement on their works online wouldn't lose all incentive to create. Times have changed. We can now see that TPMs overshot their original mark. Today TPMs are used to restrict a wide range of lawful non-infringing activities that bear no relationship to protected works at all. By being keyed to access rather than infringement, TPMs have been a disaster for consumers.
Even with the current interoperability exemption, TPMs have also been a disaster for follow-on innovation, because they can still be used to inhibit competition and protect the business models of incumbents. For example, in the context of repair, companies today routinely use proprietary tools and interfaces and parts-pairing restrictions to block third party replacement parts and lock out independent service technicians.
Even more troubling, though, is that companies like Apple, John Deere and video game console makers Microsoft and Sony even block their own authentic OEM parts from interoperating with their products absent some additional authorization by, and payment to, a company-approved technician. The use of TPMs to block interoperability is anti-competitive, anti-innovation and anti-consumer, and it reflects, in my view, an astounding degree of corporate greed.
There's a lot of talk about how we live in a connected world, but what all this shows, I think, is that we don't really. TPMs lock consumers and third parties out. They also lock us in to ongoing relationships with companies and service providers whether we like it or not. We live in walled gardens, platform bubbles and tech silos—disconnected, closed worlds—and we are largely stuck because restrictions on interoperability have enabled switching costs to rise to untenable levels. We lack the economic agency to leave for an alternative or substitute provider. No matter how nice the trappings might appear at times, a cage is still a cage.
Bill represents a step in the right direction, but in my view, it doesn't go far enough. In addition to what I've already said, I'm concerned that the entirety of the Internet of things may remain insulated, given the bill's focus on embedded computer programs.
In terms of offering some recommendations, I have a few that I'll put forward in a descending order of radicalness.
First, we could get rid of anti-circumvention provisions. Infringement is already illegal. Let's let the Copyright Act do what it was designed to do.
Second, we could mandate interoperability rather than permit it in limited circumstances.
Third, we could create broad immunity for acts aimed at promoting interoperability.
Fourth, we should absolutely reform the TPM provisions to make it clear that anti-circumvention applies only to infringing activities, and that exemptions to infringement, such as fair dealing and research, are preserved.
Finally, we should create broad exemptions for interoperability that include not just computer programs and embedded systems but also smart technologies, peripherals, consumables, interfaces, data formats, connectors and so forth. Making and trafficking in tools to accomplish the above should also be clearly exempt.
Thank you for this opportunity to speak with you today.
Good afternoon, Mr. Chairman and honourable members of the committee.
It is my pleasure to once again appear to share my perspective on copyright, software TPMs and anti-circumvention policy. This time it is in relation to the proposed Bill and interoperability.
I am a doctoral researcher in law at the European University Institute and a graduate of the Schulich School of Law at Dalhousie University. I am also a practising member of the Nova Scotia Barristers’ Society.
My doctoral thesis explores the design, function and implications of TPMs across the automotive, consumer electronics and agricultural equipment industries. My research includes an exploration into how TPMs impact innovation and interoperability. I have spent a significant amount of time learning from cybersecurity experts, electrotechnical engineers and Canadian innovators to better understand this issue and its relationship to copyright law.
In 2021, I published a peer-reviewed article in the Canadian Journal of Law and Technology that examines Canada’s copyright interoperability framework and addresses many of the issues under consideration by the committee today. I have provided an electronic copy of this article to the committee clerk for your review.
Overall, I strongly support this bill and the concerns of Canadian innovators who have found TPMs to be an obstacle to devising new products and services as well as a source of considerable business risk and uncertainty.
These perspectives demonstrate that innovation in the 21st century does not occur in a vacuum. It's a cumulative process and it thrives when knowledge and expertise can be devoted to improving the technologies we already have to perform new and unprecedented things. In the world of embedded computer systems and the Internet of things, interoperability is synonymous with innovation.
Bill reflects this reality, and it reflects the needs of Canadian innovators by not allowing manufacturers to prevent competition in secondary markets under the auspices of copyright.
In my remarks today, I would like to make three main points. First, I'll explain why the Copyright Act’s existing interoperability exception is inadequate. Second, I'll explain how the bill could be improved. Finally, I'll clarify the appropriate role and scope of copyright law in this context.
In the concept of interoperability in the act, the existing exception allowing circumvention of TPMs conceptualizes interoperability as the mutual exchange of information between two computer programs. Given the history of this exception, this narrow view is understandable.
The existing exception was included in the act as part of the Copyright Modernization Act over a decade ago. However, a lot has changed since 2011. Policy experts and standards organizations around the world now recognize a much more complex and context-specific understanding of interoperability. This includes embedded systems, computerized devices and Internet of things technologies.
This bill takes the right approach by broadening the application of the interoperability exception to include not only computer programs but also devices in which they are embedded. This is crucial, because the distinction between the computer program and the computing hardware is much less clear than it once was. In the past, it may have been easier to distinguish between hardware and software, but when software now controls the physical functioning of devices and components, the software and hardware blend together. As I wrote in my 2021 article, the Copyright Act’s conceptualization of interoperability needs to reflect today's computing and innovation paradigm. Computers are no longer just boxes with screens and keyboards. They are cars, home appliances, pacemakers, agricultural equipment and learning technologies.
By viewing interoperability narrowly, as purely a relationship between two computer programs, the act’s existing exception does not address the reality of 21st century computing or 21st century innovation.
Here is how the bill can be improved.
Though the bill offers a lot of promise by expanding interoperability to devices and components, there remains one important drawback left over from the existing exception. That is the caveat that the person circumventing the TPM—who is not a manufacturer themselves—must own “the computer program or a copy of one, or has a licence to use the program or copy”.
It may not be clear in every case that a person circumventing a TPM for interoperability has a licence to use the computer program embedded in the device or is the owner of a copy of the program. For this reason, the bill could be improved by making it clear that the ownership of a device or component in which a computer program is embedded creates an implied licence to use that computer program.
Legislating an implied licence to use the embedded program for interoperability would enable Canadian innovators and researchers outside of the manufacturing context to develop interoperable solutions without the prior consent of the original manufacturer. This would create a more open and competitive marketplace and better choices for consumers and ensure that copyright law is not used by foreign multinationals to stymie Canadian research and innovation.
This brings me to my last point: to clarify the role of copyright law when it comes to innovation and computing.
The purpose of copyright law is to incentivize the production of artistic and literary works. It encourages authors to bring ideas into the public realm. Software is a type of work capable of copyright protection, but the physical functioning of the devices that it controls is not and never was intended to be within the scope of copyright law and policy.
If we follow the logic of rights holders, it goes something like this: Where there is computing hardware, there is software; where there is software, there is copyright; and where there is copyright, TPMs can be used to prevent access. The trouble is that even when access to software bears no relationship to infringement, the act still treats that as an unlawful activity.
Though original equipment manufacturers and industry groups may contend to this committee that the bill could enable piracy-related circumvention of TPMs for infringing acts under the auspices of interoperability, this fearmongering is unfounded, for two reasons.
First, I strongly doubt that any of us are interested in making unlawful copies of the firmware used by our microwaves, televisions or laptop computers, and I have a hard time believing that bootlegged copies of firmware would attract much interest on illicit markets.
Second, and more importantly, we need to be clear about what is really being contorted here. The bill is not about enabling piracy under the auspices of interoperability; the bill is about preventing OEMs from roadblocking innovation and research under the auspices of copyright.
At a fundamental level, access-control TPMs in physical devices undermine the public policy goals of the copyright system as a whole. They function as absolute barriers to the diffusion of knowledge, are indefinite in duration and can undermine Canadian competitiveness and innovation in the global marketplace. Innovation, research and discovery are not infringing activities. Canadian innovators should not be held hostage by copyright protections designed decades ago to protect digital content industries from online infringement.
To conclude, I ask this committee to consider amending the bill to include an implied licence to use the computer program embedded in the device or component necessary to achieve interoperability. That would broaden the scope of the bill's application to research and innovation beyond product manufacturing. Following such an amendment, I wholeheartedly recommend that this committee move the bill forward toward royal assent.
Thank you very much, Mr. Chair.
I'm going to skip my introduction about the Canada West Foundation and start directly with my testimony. I hope everyone is already familiar with our foundation. We are a policy research centre for the four western provinces of Canada.
From western Canada we've spent years—over a decade—working on the issue of right to repair. Given the importance of agriculture for western Canada and for our export-based economy that supports the west and Canada, it has been an issue of obvious concern.
Based on that work, about five years ago we received a call out of the blue from Frontier, Saskatchewan, on an issue that's related to right to repair, a manifestation of the work we've been doing on guaranteeing the rights of farmers to access their equipment. That issue is important not just to the west; it's important to Canada. It's a national issue.
What I'd like to do today is skip over the technical briefing—you have Anthony, a much better expert than I, to go over the technical aspects—and talk about why this issue is important to the nation. There are five reasons in terms of context.
Number one is a phrase that all of you have used frequently, and it is a national priority: good middle-class jobs. This company and others like it across the west and in Ontario and elsewhere are producing good middle-class jobs. Since the last time Honey Bee was here, they've added 20 of these jobs.
That may not seem like a lot, but if you drive south from the Trans-Canada to the U.S. border and go through Gull Lake, Shaunavon and other communities and rural areas that have been hollowed out, you see boarded-up buildings. You'll see them in downtown Shaunavon. A company that has 200 good middle-class jobs supports not just the town of Frontier but the southwest corner of Saskatchewan. Keeping these jobs is important. It's something that we've made a national priority, and it's something that this industry is doing out of the headlines, in rural and remote areas where you don't expect this.
Number two is private diversification.
Everyone tells the western provinces:
Stop hewing water and drawing wood. Yes, I do that backwards, because we're sick of hearing it. We're sick of hearing it because we're doing that: We are building on our capacity to do things like difficult dry land farming and building new products. We are building on our strengths. We are diversifying, yet it's getting missed.
Third is market diversification. You hear this time and time again. Our entire Indo-Pacific strategy is about trying to get to new markets. If you're making new products, you're going to new markets. The figures on the growth of this industry, and the growth into new markets without help from the government and without massive subsidies.... People are coming to Canada because of our unique ability to make products that the OEMs won't and to solve problems that others won't.
The fourth reason is innovation. I don't know how much the government just spent on the new innovation program, but you want to see innovation. Innovation is in the DNA. It's the origin story for these companies. They solve problems because they have to.
Out in the middle of nowhere, no one is going to make a head or a seeder to fit your particular landscape for your needs. Farmers stepped up to make the innovations. They did it so well that others from around the globe came to us to fill the niche that Deere and others wouldn't, because their header was good enough, so why did it have to fit your particular needs? It's a niche, but this is innovation. This is what we say we want Canadian companies to do. These are things we have as national priorities, yet in our rush to fund new things and in a rush to fund new programs, we forget about the successes we already have.
We're chasing the bird in the hand and forgetting about the one in the bush. That's detrimental to our national objectives of private diversification, market diversification and innovation.
The other issue here is bipartisanship. This is an issue that is not just in western Canada. When we first started working with Honey Bee and others like Anthony and the agricultural equipment groups that came on board, we reached out to the government, based on the work that we had done and that MP Patzer, in particular, had done at the grassroots level. We reached out to , and he listened. He opened the door, he sat down and he talked with us. He had his political staff talk to us, and they responded. We talked to industry, and they responded. This has been a rare glimmer of bipartisanship, I think, on the national front.
In conclusion, this leaves four questions for you.
Do good, middle-class jobs apply to everyone in Canada, or only those in certain parts of Canada?
On innovation, are we willing to do what's necessary to save the innovation we already have, and not just rush off to try to fund new things?
Do we reward those who have done everything we have asked in terms of product diversification and market diversification, or do we ignore them?
On bipartisanship, is there any hope that we can come together as a nation on some issues? If we can't come together on this issue, I will tell you from western Canada that I don't know if we can find any issue that we can come together on.
To conclude, these are stories that write themselves, all sorts of stories that write themselves for all sorts of media going forward.
That's a bit of context. I will leave the technical definitions to the experts.
Thank you very much.
I look forward to your questions.
Mr. Chair and committee members, my name is Jamie Pegg and I have the privilege of representing 180 employees and nine area communities as general manager of Honey Bee Manufacturing. I have with me Mr. Scott Smith, our CSI manager.
Greetings are offered by Ms. Donna Boyd and the 240-plus members of the Agricultural Manufacturers of Canada, and by Mr. John Schmeiser and the 4,000 members of the newly developed North American Equipment Dealers Association.
We want to thank you for the opportunity to express our support for Bill .
Three years ago, we sat before this committee with respect to the CUSMA trade agreement. We discussed the need to address the copyright changes Bill now brings to the table. In 2020, the reasons for changes were based on expected events. Since then, we have felt the impact.
TPMs have disabled technology at normally interoperable intersections between products from Canadian agricultural manufacturers and OEM equipment platforms. The result is a 53% market denial for Honey Bee in Canada alone. The proverbial USB port has been replaced by an OEM-specific connection that is not publicly documented and has no available compatibility parts.
We are a global company, from the people we work with to the 29 countries we export to. Honey Bee sells 50% of its product in North America and exports the remainder to the rest of the world. However, our industry is still placed on an uneven playing field versus our U.S. counterparts. Foreign platforms seek to prevent participation by Canadian brands.
Honey Bee's opportunity to capitalize on intellectual property is based on our ability to interoperate with OEM equipment platforms. Interoperability means that a Honey Bee harvest header can “plug and play” with OEM equipment. Historically, this has been provided in a straightforward and obvious way, like the way a keyboard plugs into a computer.
Today, Canadian industry is technically blocked by some dominant international brands, with the impact being a loss of substantial market participation opportunity. The net result is “authorized use only”. This is controlled by OEM digital locks and keys that are unavailable to manufacturers of implement. Instead of spending our research budget on innovation, we are burning it on adaptation.
It is important to state that in no way should Canadian manufacturers, dealers and—most importantly—farmer customers be at a disadvantage on choice. Historically, we had an integrated farm equipment market in North America and abroad. Honey Bee innovation caters to the specific needs of many markets and considers their unique environments, practices and crops. Meeting these challenges brings Canadian innovation to the world. The impact of technical lockout by OEMs will be the collapse of our Canadian implement manufacturing industry, which will decimate many of our smaller communities.
In Bill , “innovation” is the act of offering improved components or products for use, either as an independent product or used in conjunction with other products. When innovation is applied in conjunction with another product, it is required to interoperate in a compatible way. In Bill , “repair” is the act of restoring a failed device to its original state, as designed and manufactured. Neither of these needs access to internal source code or involves undesired exposure to valued IP. What is needed is the supply of external specifications for protocols, and interfaces to achieve the required functionality result.
Historically, this has been the norm. As this is no longer the case, it is now an industry requirement that companies can legally reverse-engineer a product. This may include circumventing a TPM for the purpose of accessing the required systems in order to develop the information needed for achieving interoperability or repair.
The CUSMA agreement does not place U.S. and Canadian implement manufacturers on the same footing. U.S. copyright law makes exceptions for legally modified, motorized agricultural equipment for the purpose of interoperability. Canadian copyright law does not. This makes it illegal for Honey Bee, or any other Canadian company, to reverse-engineer OEM platforms to achieve the required interoperability. This means products made in Canada cannot be legally adapted in Canada. Canadian manufacturers and farmers are at a huge disadvantage. Why is that? It's a lack of clarifying language.
Bill solves this problem.
At the start of this testimony, I offered you greetings from our employees, their families and our communities. My desire is to see the number of employees and families increase with company growth because Bill is passed. If we really want to support Canadian content and innovation, we should support the work of Canadian manufacturing. By passing Bill C-294, we are voting for Canada.
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 . 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 , 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 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 , 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 . IPIC will provide suggested wording for proposed amendments that would address these concerns in its brief, which will follow shortly.
Thank you very much.
Chair and honourable members, my name is John Lawford. I'm the executive director and general counsel at the Public Interest Advocacy Centre.
PIAC is a national non-profit organization and a registered charity. We provide legal and research services on behalf of consumer interests, in particular vulnerable consumer interests concerning the provision of important public services. We've been active in the field of digital consumer protection and policy for over 20 years.
PIAC supports Bill 's goal of the creation of an exception to technical protection measures under the Copyright Act to allow consumers or businesses to circumvent TPMs for the purpose of attaching a further product to enhance the utility of the original consumer or business product in which the TPM is embedded.
The expression of the circumvention right in Bill covers all software-enabled products, but only to the extent that the TPM circumvention is required to make another product interoperate with the restricted product. It is aiming, therefore, at attachments or aftermarket products.
This aspect of the bill is its strength, as it limits its ambit and perhaps will not tread on the perceived rights of the initial owner's copyright or market. In other words, the primary or parent product must still be purchased by the consumer, and then the attachment or aftermarket product is permitted to read the information from the parent product to be made functional.
What this bill does not do, unlike Bill , is give consumers a right to repair that furthers a number of public interest aim. These include consumer freedom and right to use their legally owned items more flexibly, the extension of useful life of products, the avoidance of consumer costs and environmental harm from needless disposal of otherwise workable products and the toxic and expensive precious minerals that are in them, and an increased control of the timing and expression of consumer demand that can lead to increased competition, consumer choice, lower prices, improved customer service, greater innovation and support of small local repair businesses.
What is not in this bill is a consumer right to be informed of the possibility and availability of replacement parts. This is required in France under their Code de la consommation, under article L111-1, which requires vendors to publicly list a product or service's functionality, compatibility and interoperability with computer programs.
Parliament would also do well to consider, as in article L111-4 of the same French law, stipulating a list of consumer electronic products that must have replacement parts available to any repairer for a period of at least five years after the sale of the last unit of the specified consumer goods.
Finally, subject to provincial jurisdiction, Parliament should consider an offence, perhaps under the Competition Act, of planned obsolescence, which is an offence under the same French law at article L441-2.
PIAC believes that consumers should have access to a wider range of interoperable products. The government's recent copyright consultation stated that interoperability “fosters competition, promotes overall business competitiveness and supports incremental innovation. Interoperability also gives consumers more ability to make the most use of the products they buy.” We agree.
In order to achieve improved access to compatible goods, competing companies must be able to examine each other's software for the purpose of developing interoperable products. Currently, manufacturers use TPMs to deny competitors access to the information, preferring instead to make goods that can only be used in conjunction with other products that they manufacture in a closed loop that encourages anti-competitive lock-in.
PIAC supports adding a definition of “interoperability” in section 41.12 of the Copyright Act. In his paper, Anthony Rosborough argues for adding such a definition to the act, as allowing the term to be used in section 41.12 but leaving it undefined simply empowers original equipment manufacturers to narrowly define interoperability and to leverage the legal uncertainty with third parties to their advantage.
The definition of “interoperability” could parallel that in 17 U.S.C., section 1201(f)(4), which is “the term 'interoperability' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.” It should also be extended to include replacement physical parts, interfaces and other compatibilities as well.
In conclusion, we support Bill as far as it goes, but we want additional consumer protection in the area of consumer product use versus copyright overreach in the digital economy.
Thank you very much. I look forward to your questions.
The issue with the new NAFTA agreement is that we're trying to avoid U.S. imperialism here in terms of our trade agreements. The issue with the new NAFTA was something that we raised in an article we wrote for The Hill Times about five years ago when we were in the midst of negotiations.
I also spoke with the Foreign Affairs team negotiating the agreement and raised this issue with them. I asked if my hypothesis that the agreement could imperil our ability to amend copyright to fix interoperability issues would be an issue. It was something that wasn't on their radar. The response I got from Foreign Affairs.... They had all the time in the world and they did an excellent job with the negotiations, and my hat goes off to them, but the response I got was that they weren't sure. They couldn't say if it would or if it wouldn't.
In terms of the amendments that others have proposed, I think we get into the error of increasing international regulation of copyright and breaking digital locks. The Trans-Pacific Partnership agreement was an acceleration of what had been in the new NAFTA agreement, and the new digital agreement in Asia being put out by Chile, Singapore and others is another step in that direction. The Americans are pushing even harder.
This is an area of American competitive advantage. As such, the Americans are using trade agreements to ensure that they maintain competitive advantage. We're allies with the U.S., but we're also economic competitors. With the Americans, we have to keep one eye on our wallets with things like this.
Going forward, we really need to start paying more attention to this.
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.
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.
Thank you for acknowledging that.
I do think that somebody who is an expert in trade relations really would be better suited to speak to what the remedy would be under CUSMA. I will also flag that while it's only provisionally implemented, there are similar concerns with respect to CETA, so both of those regimes should be looked at. TRIPS doesn't go quite as far, but I think TRIPS also is a treaty that should be looked at.
Picking up on my colleague Ms. Stanley's comments, I think our submissions are not that the policy objectives behind the particular bill shouldn't be.... We take no position on the policy objectives. We're saying that from a technical perspective, we had a team of very seasoned copyright lawyers looking at the wording of the bill and we had trouble reconciling how it would actually operate, given other provisions, and ultimately, from a lawyer's perspective, we were concerned that if this bill is implemented, it's going to introduce a ton of ambiguity and also be ineffective, given that this seems to take a very discrete look. It uses plain language that is out of step with the rest of the Copyright Act.
Picking up on Dr. Rosborough's comment with respect to whether or not embedded products are covered in the first place, from our perspective, that's a non-issue. If he's in fact correct that somehow computer software embedded in a product is no longer computer software, then this is moot. This whole conversation is moot because we don't trigger the TPM protections in the first place, and there is clear case law in point that computer software does include embedded software.
I think we're speaking from a technical perspective. Looking at the specific wording of the act, it seems to not achieve the objective, and there are also implications under various treaties that should be considered as wording is looked at for the purpose of further amendment.
I'm sorry to go on.
Thank you for the question.
I completely disagree. Let me give you a simple example from my own life.
I have three computers at home. I have an Apple computer, a PC and a machine that runs Linux. None of these computers talk to each other. They don't talk to each other because they can't. From a technical perspective, they were designed not to be able to talk to each other. It's the same thing with all the peripherals, connectors and things. Even the software programs don't want to connect to each other. The claim that interoperability is not a problem flies in the face of our common sense, daily experiences with technology.
I could also very quickly respond to the safety and security issues that were raised.
During my testimony on Bill , opponents raised safety and security issues as well. My response with regard to interoperability is roughly the same: To the extent that safety and security are legitimate concerns, copyright law is not the right law to look to for protecting those interests. There are other laws that do that.
In addition, positioning consumers and the third party technicians, providers or follow-on innovators as threats is, I think, blatantly anti-consumer and anti-competition.
Finally, to the extent that safety and security are real issues caused by hacking or malfeasance of some kind, hackers already have sophisticated tools at their disposal to engage in those things. This bill isn't going to change that.
Perhaps I'll stop there. Thank you.
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 , 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.
We're going to have a further conversation, I think, at this committee around ensuring compliance with CUSMA. Obviously, it applies to Bill 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,
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 ?
Yes, I agree. To the extent that the question really relates to either what exceptions are made for clearance for inputs, which is one of the points that Professor Centivany made, or protections for outputs, or what the infringement analysis should be with respect to outputs vis-à-vis the inputs, is a whole separate issue. In fact, when the government ran a consultation, we provided submissions related to many of those issues, but it seems to be outside the context here.
To the extent that interoperability and this enabling circumvention of TPMs to allow for two computer programs to speak to each other may result in access to code that otherwise is a trade secret or an algorithm that is inside the black box, arguably, given the scope of the current exception at least, and given the way infringement works and how everything is subject to infringement, there are protections from a copyright perspective, but there may be bigger issues to consider there from a trade secrets perspective, as well as a disincentivization with respect to investment in the AI industry, which is huge in Canada, obviously.
I'm not sure if that was what you were trying to get at, but in the context of this bill, that's to me the closest analogue in the AI industry.
If part of the question is just how robust our AI industry is in Canada and whether or not it may actually facilitate interoperability between two computer systems and develop code that allows for two computer systems to speak to each other, that's for a technologist to speak to, but I do think we're well positioned in Canada from an innovation perspective in that space.
That's me speaking personally, and not necessarily on behalf of IPIC.
As I have been listening today, I have been trying to frame what I'm hearing within the context of our reality. A couple of things have stuck out.
One is that the void left by the lack of interoperability is filled with anti-competitive behaviour and planned obsolescence, because the people who live in that void have the ability to decide how everything goes after that. They hold a very strong position.
From a business perspective, for our industry and all industry in Canada, when we look at the copyright law and how it's impacting our ability to build farm equipment, it seems just weird at the outset. We're really concerned about this and we're not taking the legal and financial risk of making innovations commercially available, because we risk Nintendo versus King types of fines—$12-million fines. King was a little guy with a little thing. Relative to him, we're big guys with big things, so that's concerning.
With regard to the language that needs to be used and using plain language or legal language, industry is asking for clear language so that we have a clear understanding of where we stand with respect to these laws and so that we can also pursue provincial laws that are in support of our industries once we know where we stand federally. Today we don't know where we stand federally, given the lack of clarifying language. The bill presents this clarifying language to a point that we're very comfortable with, which would leave us to pursue our innovations and other opportunities. That would be the incentive.
Interoperability is between two physical systems. There has to be a “cyber” for a physical-cyber system to exist. When there is no cyber, it's just physical-physical, physical-technical or physical-electrical. There are all kinds of circuits that exist, beyond ones that contain software.
When we looked at ones that contain software and at the Copyright Act, we were trying to imagine, through legal discussions with others, how this would work. Would we have to buy a million-dollar combine from a dealer, make our adaptation to that, then sell it as a package to the farmer, so we can have ownership of the software at the time we make the adaptation, or do we circumvent all the systems on the product and create our own parallel system? We've done that in the past, at great expense, but we're then spending all our innovation money on adaptations instead of innovation. That's not profitable for the company, nor is it interesting to the customer. Who wants to buy a product that's been hacked and chopped to get the resulting thing?
I think the better solution is this: Our long-term goal is to somehow have a mandate for interoperability. If we don't have that, the void will be filled by monopoly, planned obsolescence, and the death of the short-line industry and other industries that are add-ons to platform holders. If gatekeepers at the platform....
We're talking about walled gardens versus Sherwood Forest. We would prefer to operate in the competitive environment of Sherwood Forest and have access to those market opportunities, without even having to go into the garden. Let them have their garden, but let us also participate—those of us who want to live and work outside the garden—using those platform devices.