On Oct. 31, the Senate completed its third reading of two bills that make enormous progress toward establishing a meaningful . Bills and are complementary private members’ bills that amend in relation to technological protection measures (TPMs).
Author
- Anthony D Rosborough
Assistant Professor of Law & Computer Science, Dalhousie University
TPMs, also referred to as “digital locks,” are software or hardware that restrict the modification or repair of a device or technology. The Copyright Act gives a very broad and open-ended definition of techniques, components and devices that can be considered TPMs.
Both bills can be traced back to 2021, and are now awaiting . They are the product of enormous grassroots support and advocacy from NGOs, members of the public and national industry associations.
I am a co-founder of the and I lead a research team that investigates the in Canada. As an intellectual property lawyer, I have provided law and policy insights to Canada’s Parliament, the European Commission and the Australian Productivity Commission. I appeared as a witness before the Standing Committee on Industry and Technology to speak in favour of these bills.
A broad definition
Given the wide appeal for the right to repair – – the bills have received unanimous and multi-partisan support throughout the numerous readings and debates.
TPMs were included in the Copyright Act in 2012 in an effort to combat online piracy of entertainment media and unauthorized uses of works on digital formats and devices like DVDs and the iPod.
Though we have largely moved on from those technologies, TPMs are present in an ever-growing number of smart devices and machinery: everything from agricultural equipment to home appliances to cars to medical devices. Ostensibly, anything with embedded software and a microchip can incorporate TPMs into its design.
Often repairing computerized devices requires circumventing TPMs, whether to access diagnostic and repair information on the device itself, or in making changes to the onboard software to authorize a physical repair or parts replacement.
TPMs may function through the use of passwords or “service keys,” or they may require a physical device (such as a dongle) to provide access to software. In imposing software restrictions that limit who (and at what cost) a device can be repaired or maintained, vendors and manufacturers are able to rely on TPMs to establish exclusive distribution channels and prevent downstream competition from third party technicians and service people.
Controversy surrounding this exclusivity in the United States has drawn attention to some notorious examples of TPMs. These include McDonald’s ice cream machines: the machines were constantly breaking down, . And the John Deere Manufacturing Company was restricting farmers’ efforts to .
The state of California only recently enabled power wheelchair users to because of proprietary security dongles or passwords in certain cases.
Current exemptions
TPMs operate to prevent access to low-level software and firmware necessary for repair, maintenance, diagnosis and interoperability. This tendency for TPMs to restrict or prevent unrelated and practical activities has concerned .
The has acted as the impetus for policymakers to finally find some solutions. Though the U.S. has a lengthy history of creating exemptions to its TPM rules that allow for repair and related activities, Bills C-244 and C-294 represent Canada’s first decisive action on the copyright front.
And in contrast to the temporary and case-by-case exemptions granted for certain products or devices in the U.S., the two bills will introduce permanent exceptions into Canada’s Act.
There are currently very limited grounds under which it is lawful to bypass or “circumvent” a TPM in Canada. Included in the existing exceptions are circumvention for national security purposes or for encryption research, but non-infringing activities like repair, maintenance, diagnosis or device interoperability are not among them.
Bill C-244 creates a new exception allowing for circumvention of TPMs for the purposes of “repair, maintenance and diagnosis.” And Bill C-294 creates a new exception allowing circumvention to make any computerized device interoperable with any other computerized device or system.
This type of interoperability relates to situations where installing a third-party part in a device is prevented by its onboard software, or where it is necessary to make two distinct computerized devices work together. The latter is particularly important for Canada’s .
Future access
Despite their enormous promise and progress, the bills are far from the final nail in the coffin in the push for a comprehensive right to repair. Further reforms are needed in other areas, such as provincial consumer protection law, federal competition law and other areas of intellectual property that can impede repair, like patents and trademarks.
And in the longer term, federal policy enabling the right to repair should take note of developments in Europe. These include enacting that scores certain products and devices according to the relative ease of obtaining parts, tools, information and software to repair and maintain them.
New regulations are needed that require manufacturers and vendors to ensure that products and devices are designed with accessibility of repairs in mind. Independent repair and servicing businesses need to be able to carry out their work without the fear of infringing various intellectual property rights, and consumers need more information about the repairability of products at the time of sale.
There is undoubtedly much left to do on the policy front in realizing a meaningful right to repair in Canada. But for now, Bills C-244 and C-294 give reason for hope and optimism that the rest is within our reach.
