A Right to Repair

A private members bill directed to a ‘right of repair’ is working its way through parliament. Bill C-244, “An Act to amend the Copyright Act (diagnosis, maintenance and repair)” is currently at third reading and may become law soon. The government included a “right of repair” in its 2023 budget documents and so far Bill C-244 has support from all parties.

The budget announcement said in part:

Budget 2023 announces that the government will work to implement a right to repair, with the aim of introducing a targeted framework for home appliances and electronics in 2024.

The government will launch consultations this summer, including on the right to repair and the interoperability of farming equipment, and work closely with provinces and territories to advance the implementation of a right to repair.

Discussions around a ‘right to repair’ have been going on for years in Canada and around the world, particularly as products become more sophisticated with computer processing capabilities, internet connectivity, subscription models and cloud-based functionality. There are many aspects to a ‘right of repair’ including access to user manuals and replacement parts and even the physical ability to open products to access their internal components.

From an intellectual property perspective, the focus is typically on copyright. Copyright on user manuals, and software can be a barrier to third parties, accessing and repairing tools and equipment.

The Copyright Act includes provisions that can act as barriers to a ‘right to repair’. For example, “technological protection measures” (TPMs) are defined in the Copyright Act (section 41) as any “effective technology, device or component” that “controls access to a work” or “restricts the doing” of any reproduction of a work. “Work” could be anything that is protected by copyright, including software contained in products. The Copyright Act prohibits the circumvention of any TPMs, offering services to do so, or providing equipment which has a primary purpose of circumventing a technology protection measure. Some exceptions are included in the Act, including for providing interoperability of computer programs, and encryption research.

The pending Bill C-244 would address these provisions by adding a further exception:

[The prohibition against circumventing TPMs] does not apply to a person who circumvents a technological protection measure for the sole purpose of maintaining or repairing a product, including any related diagnosing, if the work, performer’s performance fixed in a sound recording or sound recording to which the technological protection measure controls access forms a part of the product.

When introducing the legislation, Member of Parliament Mr. Wilson Miao framed the legislation as directed to both a right of repair and to reduce environmental waste from having to throw away repairable items, saying,

Canada has the ability to be an international leader in sustainable consumerism and act as a model on how to live a more environmentally friendly lifestyle with the things we buy. Canadians work hard to purchase the things they own and should have a right to repair these items as well.

As of mid-October, the amendments to the Copyright Act are at third reading (see debates) and appears to have support of all parties to move forward to the Senate. Some of the debate in the House of Commons focused on the interaction of the Copyright Act with contractual issues like warranties, which are under provincial jurisdiction. There was also discussions around potential health and safety issues if particular products are repaired incorrectly.

Other jurisdictions are also considering right of repair legislation. In Canada, Ontario and Quebec have considered this issue recently. In Ontario, a proposed amendment to the Consumer Protection Act, introduced as a private members bill would have provided a right to obtain documentation and replacement parts for consumer products but did not pass second reading. Concerns were raised that companies may elect not to sell products in Ontario because the proposed legislation would require them to reveal trade secrets or other intellectual property with consumers. Similar concerns led to some car manufactures to limit some features for cars sold in Massachusetts after it enacted laws providing for access to technical information for cars.

In Quebec, amendments to consumer protection legislation were passed in October 2023 that provides consumers the right to obtain certain information to repair consumer products with certain exceptions or upon notice that repairs and information will not be provided. The legislation also addresses “planned obsolescence” and mandatory warranty coverage for some types of products.

Rights of repair are also in force in various US states or under discussion. In Europe, proposals for a right to repair have been put forward by the European Commission.

With the progress on changes to the Copyright Act in Canada, there will likely be further discussions about the practicalities and legal hurdles of repairing consumer products, and particularly computer implemented items as well as a renewed efforts at the provincial level for right of repair legislation.

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