IP monitor: Recent amendments to Canadian Copyright Act (exceptions to allow circumvention of technological protection measures)

The Canadian Copyright Act has been amended in accordance with two private members’ bills, C-244 and C 294, to provide additional exceptions that amend the Copyright Act to (1) allow a person, in certain circumstances, to circumvent a technological protection measure (TPM) to make a computer program or a device in which it is embedded interoperable with any other computer program, device or component (C-294) and (2) allow the circumvention of a technological protection measure if the circumvention is solely to diagnose, maintain or repair certain types of products (C-244).

These two bills received royal assent on November 7, 2024. We had previously published an update when Bill C 244 was passed by the House of Commons, which provides context on the history of TPMs and the right-to-repair movement.

In 2012, Parliament amended the Copyright Act to add prohibitions against circumventing TPMs and trafficking in circumvention devices. These were included as part of the obligations under WIPO treaties, and were an important tool for owners of copyright to protect their copyrighted works. However, prominent academics have criticized Canada’s implementation of TPM protections as restricting property rights such as limiting the ability to repair products or to ensure interoperability between systems.

TPMs are often referred to as “digital locks” that can include software and corresponding firmware and hardware that are used to restrict certain activities. TPMs can include password controls, copy-prevention measures, and are growing in popularity as a mechanism for protecting different types of products. As noted by the INDU Meeting Minutes of March 8, 2023, while TPMs are useful for preventing unfettered copyright infringement, there also are concerns with using TPMs for “vendor lock-in” and potential follow-on innovation (e.g., aftermarket innovation).

From a business model perspective, a TPM could be used to establish restrictions in an attempt to limit access to “authorized technicians,” or limiting the types of products that could work with the product, establishing a competitive advantage through a controlled repair ecosystem or walled garden-type product ecosystem.

The amendments introduced by the two bills likely will be most relevant to the consumer products (smart devices, medical devices), as well as agricultural and manufacturing equipment industries.

Bill C-244 (diagnosis, maintenance or repair)

Bill C-244 replaces the definitions of “circumvent” and “TPM” in Section 41 of the Copyright Act, explicitly adding the term “computer program” to the operative phrase in addition to “scrambled work” in respect of “circumvent,” and adding “computer program” in respect of what work the TPM controls access to. This appears to modernize the TPM section to explicitly consider computer program-based TPMs.

Diagnosing / maintaining / repairing exceptions were added at 41.121(1) and (2), providing exceptions to 41.1(1)(a) [the act of circumvention] and 41.1(1)(c) [manufacturing, importing, distributing, or offering for sale or rental or provide any technology, device, or component] respectively. 41.121(2) appears to provide protection for those who are providing repair tools.

Bill C-294 (interoperability)

Bill C-294 amends the existing exception at 41.12 for interoperability by replacing the section, simplifying language relating to how the computer program is lawfully obtained, and also adding an explicit purpose under 41.12(1)(b) of (b) “making the program or a device in which it is embedded interoperable with any other computer program, device or component.” Previously, 41.12 only noted the sole purpose of obtaining information that would allow the person to make the program and any other computer program interoperable.

Subsections 41.12(4)-(7) were replaced with replacement 41.12(4)-(9) (the amendments were introduced during the second reading of the bill, amended by the Standing Committee on Industry and Technology. Additional language was added for “computer program or a device in which it is embedded.” Reviewing the INDU Committee Meeting Minutes of February 15, 2023, there appear to be discussions around ensuring interoperability extends to machinery and manufacturing.

Further reading

There is additional commentary that can be found at the minutes of the Standing Committee on Industry and Technology that provides useful insight from the various industry group and public interest group submissions that were considered by the committee, as well as ancillary concerns regarding the advent of artificial intelligence technologies.

For more information, please contact your IP professional at Norton Rose Fulbright Canada LLP.

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