Right-to-repair bill passes unanimously at House of Commons

On October 18, the House of Commons unanimously passed Bill C-244, a private member’s bill aimed at supporting the right to repair. The bill seeks to do so by amending the Copyright Act to allow people to circumvent technological protection measures (TPM) when maintaining or repairing a product. 

This bill is largely a reintroduction of Bill C-272, which had been introduced in February 2021. Bill C-272 had received unanimous and multi-partisan support at both its first and second readings, and on June 2, 2021, it was referred to a committee for further review. However, as a result of the fall 2021 federal election, Bill C-272 died on the order paper. 

Brief history of TPMs in the Copyright Act

TPMs are defined in section 41 of the Copyright Act as any effective technology, device, or component that (a) controls access to a work; or (b) restricts the exercise of the exclusive rights of the copyright owner, such as reproducing or publishing the work. Prohibitions against circumventing TPMs were greatly expanded in 2012 through Canada’s Copyright Modernization Act (CMA), on the premise that such measures would afford creators greater protections against unauthorized access to or use of their works. The Copyright Act currently prohibits the circumvention of access control TPMs, even if the work has been legally acquired. 

Pursuant to paragraph 41.1(2) of the Copyright Act, a copyright holder whose TPM has been circumvented is entitled to the same remedies as if its copyrights had been infringed. While the law provides for a few limited exceptions in which circumvention could be allowed (for example, the protection of personal information), for the most part, the reason for circumvention is of no legal importance. A person could thus be held liable regardless of whether a TPM is circumvented for an infringing purpose (e.g., unauthorized distribution of copyrighted works) or a non-infringing purpose (e.g., fixing a software glitch or repairing a machine on which copyrighted software has been embedded). 

TPMs and right to repair

Concerns about the potential misuse of TPM were raised at the time of the debates surrounding the CMA’s enactment. However, it was following the Federal Court decision in Nintendo of America Inc v King, which awarded damages of over $12 million based on the application of anti-circumvention provisions, that Canadian public policy more tangibly shifted with respect to the circumvention of TPMs. In the June 2019 House of Commons Standing Committee on Industry, Science and Technology Statutory Review of the Copyright Act, the Nintendo decision was cited as the basis of their recommendation that the Government of Canada:

“[E]xamine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully-acquired device for non-infringing purposes.”

In 2021, the Canadian Competition Bureau submitted a consultation paper to Innovation, Science, and Economic Development Canada in the context of the review of the Copyright Act. The Competition Bureau made note of the tension between the Copyright Act’s far-reaching restrictions on circumventing TPMs and the Competition Act’s goals of maintaining and encouraging competition in Canada. Specifically, the Bureau mentioned that several provisions of the Competition Act may apply to an OEM’s use of TPMs to restrict competition, namely Section 75 (Refusal to Deal); Section 76 (Price Maintenance); Section 77 (Exclusive Dealing, Tied Selling and Market Restriction); and Section 79 (Abuse of Dominant Position). The Bureau furthermore concluded:

“The inability to legally circumvent TPMs for legitimate non-infringing purposes, such as for repairs and enabling interoperability, can reduce choice for consumers and create significant barriers for business to compete in downstream and complementary markets, Given the pro-competitive benefits for consumers and businesses, the Bureau supports introducing an exception to facilitate repairs […]”

These conclusions and recommendations are largely reflected in the text of Bill C-244, which would amend the Copyright Act to specify that the prohibition of circumventing TPMs “does not apply to a person who circumvents a technological protection measure for the sole purpose of maintaining or repairing a product.” 

Global approaches to TPM anti-circumvention measures 

Although other WIPO signatories limit the circumvention of TPMs, few jurisdictions have as far-reaching access controls as Canada under the Copyright Act currently in force, or have rules accompanied by more robust legal mechanisms to offset the potential for TPM misuse. For example, France’s copyright law establishes a digital rights authority charged with ensuring interoperability. In the United States, exceptions to the prohibition of circumventing TPMs are regularly introduced into law, and include allowing circumvention for the purposes of repairs and maintenance, automotive security research, or archiving and preserving video games. Should it pass at the Senate, Canada’s Bill C-244 would bring Canada’s TPM regime more in line with international standards.

The broader right-to-repair movement 

Adapting rules on the circumstances under which TPMs may be circumvented constitute one of several approaches political bodies have taken to promote the right to repair. On July 9, 2021, President Joe Biden signed into effect the Executive Order on Promoting Competition in the American Economy in the United States, which requires, among other things, the Federal Trade Commission to enact regulation ending manufacturing practices that prevent the repair of equipment and devices by third parties. On March 22, 2023, the European Commission adopted a new directive proposal on common rules that would introduce obligations for producers to repair defects upon the request of consumers under certain circumstances.

Finally, on June 1, 2023, Quebec’s Minister of Justice, Simon Jolin-Barette, introduced a bill that complements Bill C 244 from the perspective of consumer rights: Bill 29, An Act to protect consumers from planned obsolescence and to promote the durability, repairability, and maintenance of goods. The bill was unanimously adopted on October 3, 2023, and was sanctioned on October 5, 2023.

In addition to increasing competition, a significant motivation behind the right-to-repair movement has been reducing the environmental impact of technological waste by encouraging longer device lifecycles.  

Commercial impacts

Members of Parliament mentioned a number of groups for which Bill C-244 would have a positive impact, including owners of consumer goods with digital components (such as washers or dryers), farmers or any individuals living in rural areas with limited access to authorized repair shops, and hospitals, which will be able to more easily repair their medical equipment. 

Although Canada’s approach to circumventing TPMs will now more closely resemble that of the United States and European Union, companies operating in multiple jurisdictions should remain mindful of legal differences between jurisdictions. Within Canada, it will also be important for businesses to understand the interactions between the new federal right-to-repair and provincial consumer protection laws.