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September 24, 2021
Minister of Innovation, Science and Industry Minister of Canadian Heritage
Re: Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things
Submission by Anthony Rosborough*Footnote 1 and Dr. Alissa Centivany**Footnote 2 Regarding Impediments to Repair Posed by Technological Protection Measures
We are scholars in the Intellectual Property Law and Information Science fields. Our work focuses closely on the Right to Repair, including its progression as a social movement as well as the legal and practical obstacles that stand in its way. Though we work within distinct academic fields, we are jointly interested in the ways in which impediments to repair impact society and (re)produce inequalities and differential access to information and resources. Considering these interests and experience, the following are our submissions in response to section 3.2 of the Consultation in relation to “Repair”.
To provide background, we are the co-organisers of “Fixing Digital Locks”, an event which was held on September 2, 2021. The purpose of the event was to gather information, perspectives, and feedback from various stakeholders in the repair community who have found limitations or impediments posed by technological protection measures in Canada. We heard from guest speakers Professor Michael Geist (University of Ottawa), Kyle Wiens (iFixit) and Dr. Tarek Loubani (the Glia Project) and encouraged participants to share their views and experiences. The event was co-hosted by the Canadian Repair Coalition and the Innovative Deviance Lab, with support from the University of Western Ontario’s “Big Data at the Margins” lecture series.
In response to the Consultation on a Modern Copyright Framework commenced in the summer of 2021 (“the Consultation”), we enclose our thoughts and comments in light of both our expertise on repair-related issues and the insights gained from Fixing Digital Locks.
Each of the three guest speakers at the event provided insight into a different dimension of how technological protection measures (“TPMs”) impact Repair. These distinct insights established three themes that formed the substance of what was discussed during the event: (1) the inability for Canada’s current TPM laws to respond to various social and technological challenges posed by TPMs, (2) the inadequacy of the United States’ Digital Millennium Copyright Act’s (“DMCA”) Librarian of Congress exemption ruling process; and (3) the timid and apprehensive innovation culture that has arisen due to the risks posed by strong penalties for unlawful TPM circumvention. We address each of these themes below:
1. Canada’s Lack of Leadership on TPM Issues
Professor Michael Geist held a strong view that Canada’s track record in addressing the negative consequences of TPMs has been entirely unsatisfactory. He felt that impediments to repair caused by TPMs were entirely foreseeable at the time they were introduced in Canada’s Copyright Act, RSC 1985, c C-42 (the “Act”). He took note of the Act’s inclusion of provisions enabling the Government to enact new exceptions to anti-circumvention, which he said at the time were viewed as preferable to the United States’ periodic review and renewal process under the DMCA. Professor Geist was clear to point out that such promise has not been realised upon in the ten years since anti-circumvention rules became part of Canadian law, despite strong recommendations concluded through successive reviews of the Act.
In the questions and comments following Professor Geist’s presentation on the legislative and political history of Canadian anti-circumvention laws, attention was given to the existing statutory review of the Act process as a potential avenue for reform. Professor Geist remarked that, despite very active and broad participation in these processes (resulting in clear recommendations), legislators and policymakers have not taken meaningful action. He observed that copyright’s perception as a policy area tied to international trade has likely discouraged many policymakers from engaging in meaningful reform – to the detriment of socially beneficial practices like repair.
Some comments from participants lamented the fact that the process and basis for enacting exceptions to Canada’s anti-circumvention framework are restricted to market effects or anti-competitive rationales. The views of one participant were that repair and other socially beneficial uses of technologies which require circumvention are often not easily positioned within a market narrative, resulting in regulatory blind spots. This perspective highlighted the notion that not all impediments to repair will manifest in market or competitive imbalances. Indeed, where repairs are carried out largely for private purposes without commercial gain or the involvement of third parties, the existing framework for exceptions in the Act provides little help.
2. A Canadian TPM Exception and Review Process
Kyle Wiens’ presentation focused largely on the successes in reforming the anti-circumvention provisions of the DMCA within the context of the broader Right to Repair movement. He began with an overview of how iFixit started purely for the purposes of providing free repair information, only to become an advocacy and activist organisation for all things repair. His first-hand experience providing testimony to the US Copyright Office and policymakers for repair-friendly TPM reforms was particularly insightful. He identified cellphone unlocking – that is, to enable devices to be used with multiple carriers – as the first TPM issue which required advocacy along repair lines.
He lamented the existing triennial review process under s. 1201 of the DMCA, which he described as “legally burdensome”. He explained that this process involves the expiry of exceptions every three years, which must be sought again under somewhat different grounds to be valid. He also described that process as falling short of comprehensive, reminding attendees that merely because an exemption is given for a certain type of device does not mean that all repair-related activity is permitted. Particularly, a TPM exception under s.1201 of the DMCA does not mean that it is also legal to distribute tools which facilitate circumvention. In this way, the triennial review process is underinclusive and cannot properly address the needs of independent technicians and servicepeople.
Overall, Kyle Wiens’ presentation highlighted the importance of properly calibrating a TPM exemption process in Canada. His experience working with the DMCA framework revealed considerable shortcomings that, if mirrored in Canada, may also prove to be inadequate. Of particular note was the DMCA’s approach of classifying certain devices or products through exemptions. Kyle’s remarks pointed to the importance of the ability to freely distribute circumvention tools and to classify certain activities or purposes of circumvention (rather than the category of product or device). This distinction was highlighted by Kyle’s observation and prediction that TPMs have become ubiquitous in many products, and we can expect this list to expand significantly into the future.
3. Harms to the Public Good and a Culture of Innovation
Dr. Tarek Loubani’s presentation focused on his experience running the Glia Project, an organisation dedicated to providing high-quality, low-cost medical devices – particularly to healthcare providers in Gaza. He described a type of self-censorship that clouds much of the community of people with knowledge and experience in repairing medical equipment. Due to a combination of strong legislative protections for manufacturers and the inflexibility of commercial entities to facilitate circumvention, Tarek identified a “caustic environment”, where many engineers with specialised tools and expertise are unwilling to become involved.
Dr. Loubani described the Glia Project as having to target ‘end-of-career’ engineers to assist with device repair due to the widespread apprehension of running afoul of anti-circumvention laws. He said that even where the repair of devices may not require circumvention per se, manufacturers and service companies have relied on the threat of litigation and enforcement to create a culture of apprehension and fear. He recalled one case where Glia had to smuggle an engineer through a now-decommissioned tunnel into Gaza to perform repairs on a medical device because the manufacturer refused to provide essential repair information. In the case of medical devices in impoverished areas, constraints on information and material resources necessary for repair have particularly harmful ramifications that extend far beyond market imbalances or a reduction in consumer choice.
Overall, Dr. Loubani’s remarks evidenced how TPMs and the ability for manufacturers to enforce them have created a culture of apprehension and fear. The result is that manufacturers need not necessarily make the existence of TPMs obvious where sufficient and sustained threats of litigation are made. In this way, the repair impediments imposed by TPMs transcend the immediate risk of exposure to liability for infringement resulting from circumvention; TPMs create new norms and expectations regarding the use of tangible property in a broader sense.
Dr. Loubani’s recollection of an apprehensive culture around repair was the cause for discussion among participants about the impact of TPMs on the concept of ownership. One participant remarked that ownership (or the feeling one has in exercising it) is a sort of precondition for engaging in repair. By undermining the subjective experience of ownership, TPMs in a way act as a broader impediment to repair than merely functional or legal. They also render the practice of repair outside the scope of what many think to be possible or reasonable. This less measurable consequence of TPMs is one which many felt comprised the societal impact of TPMs.
Overall, Fixing Digital Locks provided important insight into how TPMs have been central to repair issues, both in terms of tangible barriers and the disincentives they impose on independent technicians and everyday people. The presentations made by the three guest speakers and the public discussion that followed provided some notable takeaways:
- Canada’s anti-circumvention framework (and exceptions) is inadequate to address repair activities, particular where such activities are not able to be measured within a market competition or economic lens;
- Canada is long overdue to enact a framework for exceptions to its anti-circumvention laws, and the consequences of failing to do so have been long understood and cautioned against;
- Canada would be unwise to mirror too closely the exemption process found in the United States’ DMCA, and should instead enact exceptions which respond to socially beneficial activities or practices which require circumvention, regardless of the type of product or device;
- Exemptions to TPMs should be instituted to support the unfettered sale and distribution of tools that are necessary for both repair and circumvention;
- Exemptions to TPMs should be organized around particularly activities or purposes of circumvention rather than the category of product or device; and
- The impact of TPMs on technological literacy and a repair-oriented culture transcend their immediate legal consequences and penalties for circumvention. For Canada’s reform initiatives to be meaningful in facilitating and encouraging repair, it must engage in information campaigns to educate the public, independent technicians, and those with technical skills to better understand the lawfulness of their actions.
We thank the Ministers for the opportunity to submit our comments and views in the context of the Consultation and reforms to the Copyright Act.
Yours very truly,
Anthony D. Rosborough, Doctoral Researcher, European University Institute and Founder of the Canadian Repair Coalition.
Professor Alissa Centivany, University of Western Ontario.