In 2012 Canada amended the Copyright Act to introduce legal protection for technological measures (TPMs) as part of the Copyright Modernizaton Act. In the 2024 Budget published yesterday the Government announced plans to review and possibly amend these provisions to introduce rights of repair.
The announcement of the proposed rights of repair are set out in two sections of the Budget.
The first is under the heading “Lower Costs and Fairer Treatment for Farmers”. It states, in part:
“To make it easier for farmers to use the tools and technology essential to running their farms, the government is supporting efforts to amend the Copyright Act to help achieve interoperability between devices and equipment. To build on this important work to modernize legislation to reflect the realities of farming: Budget 2024 announces the government will launch consultations this June on interoperability, so that farmers can use their equipment in the way that is best for their farm. This is part of broader work the government is undertaking to support the right to repair and interoperability. Budget 2024 also announces the federal government is calling on provinces and territories to amend their contract laws to support interoperability, while commending the progress of Quebec on their work to support consumer protection, including for farmers. Further details on the upcoming consultations will be announced shortly.”
The second reference to the government’s proposal is under the heading “A Right to Repair Your Devices”. It states:
“From cell phones to computers to washers and dryers, it is frustrating—and expensive—to replace, rather than repair, your devices and appliances when they break. The current disposable lifecycle of many modern electronics and appliances is bad for the environment, and it is costly for Canadians.
Canadians expect the expensive devices they purchase to work well and last for years. And if these items fail, Canadians should be able to repair their broken appliances or devices—and at a fair price—rather than being forced to purchase a new product when one component fails.
To ensure Canadians can keep their devices working longer, and reduce harmful electronic waste in the process, the federal government is advancing a right to repair to increase product durability and repairability. Important progress is already being made to secure these rights for Canadians, including:
- Amending the Copyright Act to allow the circumvention of digital locks to diagnose, maintain, or repair a product. This will enable consumers to repair their devices where they choose.
- Amending the Competition Act, as announced in the 2023 Fall Economic Statement, to prevent manufacturers from refusing, in an anti-competitive manner, to provide the parts, tools, or software needed to fix devices and products.
Building on this progress, Budget 2024 announces:
- The government will launch consultations this June to develop a right to repair framework, which will focus on durability, repairability, and interoperability.
- The federal government is also calling on provinces and territories to amend their contract laws to support a right to repair and interoperability. Quebec’s Bill 29 is an example of how provinces can protect consumers by promoting right to repair.
Further details on the right to repair framework on home appliances and electronic devices will be announced in the coming months. The federal government is exploring how to address:
-Planned obsolescence, which is when manufacturers intentionally create products that break quickly;
− The merits of a durability index, which could help Canadians better understand how long their device is expected to last; and
− If there is the need for further federal legislative changes to support right to repair
Comments:
This government announcement follows a prior copyright consultation in which the government explored and called for evidence on whether a right to circumvent TPMs was required to facilitate repair of devices. As the government noted in its prior consultation paper:
There are two broad approaches available under the Act to introduce a new TPM exception for repair: 1) introduce a specific legislative exception to the prohibitions regarding TPMs for the purpose of repair, or 2) exercise the regulatory authorities under the Act to create a regulatory TPM exception for the purpose of repair.
There are already two private members Bill that attempts to addresses the right to repair. Bill C-244 was passed by Parliament in October 2023 and is now at second reading in the Senate. Bill C-294 is also at the Senate. It is unclear whether one or more of these Bills will be passed or will be superseded by a new initiative resulting from the planned consultation.
If the government decides to amend the Copyright Act provisions related to TPMs, it will need to do so within the framework set out in Section 20.66(4) the USMCA which sets out permissible exceptions or limitations to the obligations of the parties with respect to the legal protection of TPMs.
The Governor in Council’s authority to promulgate new exceptions by regulation was summarized in the prior consultation as follows:
Section 41 of the Act sets out two Governor in Council (GiC) authorities to make regulations, each of the two authorities differing in intent and scope. Under the first authority (subsection 41.21(1)), the GiC may make regulations to exclude from the application of the prohibitions under section 41.1 any TPM or class of TPMs if the GiC considers that the application of the prohibitions to those TPMs or class of TPMs would unduly restrict competition in the aftermarket sector. The second authority (subsection 41.21(2)) provides that the GiC may make regulations to prescribe additional circumstances in which the prohibition against circumventing a TPM, set out in paragraph 41.1(1)(a), does not apply, having regard to a number of factors (e.g. whether being permitted to circumvent a TPM could adversely affect the market for the work). The second authority also permits the GiC to make associated regulations to require the owner of the copyright in a work protected by a TPM to provide access to the work, and to “prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.