The Right to Repair

The Copyright Act imposes liability for circumvention of technical protection measures (TPMs). Technical protection measures 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. A person circumventing a TPM can be found liable, regardless of whether the circumvention is for an infringing or non-infringing purpose.

The liability for unauthorized access or circumvention of a TPM may be substantial. The Federal Court awarded over $ 12 million for circumvention of the TPMs protecting Nintendo’s Wii player and for copyright infringements on a commercial scale.^[1]

Unfortunately, one of the unforeseen consequences of this prohibition is that manufacturers can use TPMs to force consumers to repair their devices with only authorized service providers or means. This can limit competition and, consequently, limit the choice for the lawful consumer of a device.

The Act, An Act to amend the Copyright Act (diagnosis, maintenance and repair), C-244,^[2] seeks to provide some relief for this problem.

It was introduced by Wilson Miao as a private member’s bill and received support from all parties in Parliament. It has since been passed into law.

The Act provides, “This enactment amends the Copyright Act in order to allow the circumvention of a technological protection measure if the circumvention is solely for the purpose of the diagnosis, maintenance or repair of certain types of products.”

Importantly, the law provides that the right of repair can be exercised by an individual or by a repairer of their choice.^[3] The law permits circumvention of the TPMs for authorized purposes only. It does not permit subsequent infringement of copyright or the offering of services primarily intended to circumvent TPMs without engaging in actual repair.

This amendment aligns Canada’s law with that of the European Union and the United States of America, which allow circumvention of TPMs for the repair of equipment or devices.

Time will tell if the new right of repair leads to more competition and more choice for consumers.

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^[1] See Nintendo of America, Inc. v. King, 2017 FC 246 (Canlii).

^[2] 44th Parliament, 1st session.

^[3] S.41.121(2) Copyright Act