Unlocking repair rights: changes coming to Canada’s right to repair legislation

Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance, and repair) passed its second reading in House of Commons on May 31, 2023. The bill’s proposed amendments to the Copyright Act would permit the circumvention of Technological Protection Measures (TPMs) for the sole purpose of maintenance, repair and related diagnosis. The intent behind the proposed amendments is to bolster sustainable consumerism and facilitate accessibility in seeking after-market repair.

What you need to know

• TPMs are a form of technological lock embedded by manufacturers in products and equipment to control access to copyright-protected work.
• The proposed amendments are drafted as an exclusion to the non-circumvention of TPMs provisions in the Copyright Act and are limited in application.
• A recent and related bill, Bill C-294, which is awaiting its second reading in the Senate, proposes amendments that would permit the circumvention of TPMs to enable interoperability of programs, devices or components.

Permitted circumvention of TPMs for maintenance and repair

The amendments to the Copyright Act proposed by Bill C-244 intend to grant consumers or business users a “right to repair” the products that they have purchased, by permitting access to copyright-protected works that are locked under TPMs. TPMs are a form of technology, device or component typically used by original equipment manufacturers (OEMs) to “lock” or control access to copyright-protected works (e.g., software). Currently, the Copyright Act prohibits the circumvention of TPMs, including to access, for example, underlying software that is necessary for diagnosis, maintenance and repair of devices. As a result, end-users typically must approach OEM licensed technicians, who have the authority to unlock TPMs, to maintain and repair products.

If passed into law, Bill C-244 would permit the circumvention of TPMs for the limited purpose of diagnosis, maintenance and repair, granting individual end-users and third-party repair providers with the latitude necessary to repair.

Exclusion from non-contravention clauses does not permit copyright infringement

It is crucial to note that Bill C-244 is specifically crafted to facilitate diagnosis, maintenance and repair while upholding other copyright protections afforded by the Copyright Act. The effect of Bill C-244, if passed into legislation in its current form, is limited to being an exclusion to section 41.1(1)(a) of the Copyright Act, which prohibits the circumvention of TPMs. To the extent that a user or third-party does more than merely circumventing TPMs for the purpose of diagnosis, maintenance and repair, and proceeds into any other act of infringement (e.g., the copying of any substantial part of a copyrighted work), then such user or third-party would continue to be subject to copyright infringement under the Act.

A related bill: Bill C-294, An Act to amend the Copyright Act (interoperability)

Bill C-244 is the second bill in a series of bills that propose to permit the circumvention of TPMs for a limited purpose. A recent and related bill, Bill C-294, passed its first reading in the Senate on June 15, 2023. Bill C-294 proposes amendments to section 41.12 of the Copyright Act to permit a user of copyrighted computer programs to circumvent TPMs where the purpose of the circumvention is to obtain information to make the program interoperable with other programs, devices or components. The proposed amendments would also permit the actions of a manufacturer of a product that circumvents TPMs to enable interoperability. Similar to the limited scope of Bill C-244, circumvention of TPMs for the purpose of interoperability is an exclusion under non-circumvention provisions of the Copyright Act and does not extend toward any other act of infringement.

What’s next

The proposed amendments by Bill C-244 have not yet become law and may evolve as the bill moves through the legislative process. If passed into law, the bills’ impact on specific industries like agriculture, automotive and consumer electronics must be further assessed, as users, consumers and third parties would be permitted to access copyright-protected works under a limited set of circumstances. This may raise concerns for copyright holders about the risks of unauthorized modifications, safety of products and equipment, and increased competition through the contribution of the after-market repair industry.