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I Want to Break Free…and Fix My Device Myself!: How One MP Wants to Allow for the Circumvention of Technological Protective Measures Under the Copyright Act

February 26, 2021

By François Larose, Naomi Zener and Tamara Céline Winegust

Sheryl Crow sang “a change will do you good”, and it’s clear that the desire for changes to be made to Canada’s Copyright Act (the “Act”) are in the air.

It has been a busy month for calls to change copyright law in Canada! First, came the Federal government’s consultation notice on the extension of the copyright term from life of the author plus 50 years to 70—read our article here. Then, came Senate Bill S-225, which called for changes to the Act that would remunerate news publishers whose journalistic works are reproduced or published on digital platforms—read our article here. This week, a new private member’s Bill was introduced—Commons Bill C-272, An Act to Amend the Copyright Act (diagnosis, maintenance or repair). This new Bill, championed by MP Brian May, proposes amendments to provisions in the Act that prohibit the circumvention of technological protective measures (“TPMs”), and would create an exception to permit diagnosis, maintenance, or repair of a product with an embedded computer program.

The proposed amendments reflect a growing worldwide movement to provide consumers with a “right to repair” their electronic devices that depend on software to operate, and to enable them to choose by whom, how, and when to repair those devices they own when they break down. Under pressure of this movement, the European Parliament has already voted in favour of establishing such a right for consumers. Numerous U.S. states have also signaled their desire to make legislative changes that would similarly empower owners of physical devices. Last year, U.S. Congress introduced a bill to give hospitals a “right to repair” medical equipment during the COVID-19 pandemic.

A “right to repair” responds to a developing practice of tying a product’s warranty or software licensing terms to the purchaser’s use of the manufacture’s authorized replacement parts or repair services, and deeming the warranty void or the license breached when unauthorized third-party parts or diagnostic/repair services are used. Given the proliferation of software dependent “smart” devices across all consumer product categories, the debate around a user’s “right to repair” has taken on particularly urgent tones in recent years as the usefulness and operability of physical consumer goods becomes increasingly dependent on the proprietary software embedded within them.

Canadian Bill C-272 attempts to address some of these concerns by proposing changes to the TPM provisions of the Act, but only with respect to “computer programs”. TPMs are digital “locks” put in place by a copyright owner to control access to, and/or control reproduction, publication, or performance of, their copyrighted work. A “TPM” is defined in Section 41 of the Act as “any effective technology, device or component” that “controls access to a work” or “restricts the doing” of any of the owner’s exclusive rights, “in the ordinary course of its operation.” TPMs can also be applied to protect “neighbouring rights” related to “performer’s performances” and “sound recordings”. For example, DVDs typically include TPMs designed to prevent unauthorized copying of the film or television series embodied in that device. Although included in the Act, the regime governing TPMs is considered to be separate from copyright in the work itself. Likewise, the penalties associated with circumventing TPMs under Section 42(3.1) are independent from those associated with copyright infringement under Section 35 of the Act.

The provisions protecting TPMs have been in force for about a decade. They appear at Sections 41 through 41.22 of the Act. When they were introduced in the early 2010s through the Copyright Modernization Act, many in the academic and consumer advocacy community voiced concern that the TPM regime unfairly tipped the balance of copyright in favour of rights holders and granted them essentially unchecked power to control access to (and use of) their works. Practically, TPMs have proven to be blunt enforcement tools. At least one court has denied the availability of a “fair dealing” defense outright in circumstances where the copyright material in question was obtained by circumventing a TPM (in that case, a paywall)—notwithstanding whether the ultimate use of the work may otherwise have been considered “fair” and to not infringe copyright. The legal commentary and practical considerations highlight why many consider user-oriented amendments to the regime to be critical.

The proposed changes to the Act in Bill C-272 would introduce a new exception to permit circumvention of TPMs that control access to computer programs for the sole purpose of diagnosing, maintaining, or repairing the product in which that program is embedded. The manufacture, import, or provision of a technology, device or component used solely for these excepted diagnostic/maintenance/repair purposes would also be permitted. There would also be consequential amendments to add the words “or a computer program” to the definitions of “circumvent” and “technological protection measure”. (Such definitional amendments may not strictly be necessary. The TPM regime applies to “works” and section 2 of the Act includes “computer programs” in the definition of “literary work”). 

From a consumer fairness perspective, the proposed amendments notionally make sense—they would empower the owner of a physical device to “self-help” when they need to fix their property. However, from a copyright perspective, a “right to repair” that only addresses technological protection measures could be problematic. It does not consider (or excuse) the logical result of permitting self-diagnosis, maintenance, and repair that engages with computer software—namely, that any diagnostic tool must execute the underlying software—which could constitute a copyright infringing “reproduction”. While Sections 30.6 and 30.61(1) of the Act do provide an exception for such reproduction in certain circumstances, those provisions are restrictive—they require the copying be done by the “person who owns a copy of the computer program” or is licensed to use the copy, and be “solely for the person’s own use”. Consequently, the exception may be too narrow to excuse circumstances where the device’s owner lacks the know-how to diagnose or repair it themselves, and asks an immediate family member for assistance (for example, an adult child helping an elderly parent). Moreover, there is doubt whether such activity, particularly if carried out as a commercial service, could benefit from “fair dealing”.

Loosening the anti-circumvention measures in the Act for the purposes of diagnosis/maintenance/repair could open the door for amendments that permit other kinds of circumvention. For example, in the United States, TPMs are removable for the strict purpose of excerpting a film clip for inclusion in a documentary film, provided that the documentary critically analyzes the film clip. Canada does not have a similar exemption, although many in the filmmaking community would welcome (and have lobbied for) such a change in this country. 

Another potential problem is that, even if a consumer is not legally liable for circumvention, their actions could constitute a breach of product warranty or the software license. This is counterintuitive from a “consumer protection” perspective. Product warranties are designed to give consumer assurance that the manufacturer bears liability for fixing problems that arise under warranty. As well, in an age where digital security is paramount to combat piracy, TPMs give copyright owners reassurance that their work won’t be subject to unauthorized copying given that there would be two breaches of the Act: circumvention of the TPMs and copyright infringement, both subject to distinct penalties. Likewise, many products with embedded computer software are governed by lengthy service level agreements that explicitly prohibit unauthorized access to and modifications of the underlying software. A “right to repair,” if exercised, would effectively breach that agreement and give manufacturers cause to deny access or service through that software including, for example, security updates. 

Any effort to empower consumers to affect their own diagnostics and repairs would therefore do well to also consider coordinating consequential amendments to the Act (a Federal statute) and other consumer-focused laws (which fall under both Federal and Provincial jurisdictions). That way, in reducing the risk of liability in one area (namely, TPMs), lawmakers do not inadvertently cause the risk of liability to substantially increase in others (for example, copyright infringement and breach of contract). Stay tuned!

Content shared on Bereskin & Parr’s website is for information purposes only. It should not be taken as legal or professional advice. To obtain such advice, please contact a Bereskin & Parr LLP professional. We will be pleased to help you.

Author(s):

François Larose François Larose
B.A.A., LL.L., LL.M.
Partner
514.871.2109  email François Larose
Naomi Zener Naomi Zener
B.A., J.D., LL.M.
Counsel
416.364.1650  email Naomi Zener
Tamara Céline Winegust Tamara Céline Winegust
B.F.A., J.D.
Associate
416.957.1651  email Tamara Céline Winegust