Auto Care Association

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September 17, 2021

Innovation, Science and Economic Development Canada
C.D. Howe Building
235 Queen Street
Ottawa, ON K1A 0H5
Canada
copyright-consultation-droitdauteur@canada.ca

RE: A Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things

The following are comments in response to the government’s “Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things”. The impact of software copyrights on competition in the United States repair industry has received significant attention over the past decade. The following is input from the perspective of the U.S. vehicle repair industry relative to the issue of “Repair” raised in Section 3.2 of the Consultation which we hope will be helpful.

The Auto Care Association is a U.S. based trade group representing manufacturers, distributors, retailers, and vehicle service providers. While some of our members supply the vehicle manufacturers, the Auto Care Association primarily represents companies that are independent of the manufacturers, providing a competitive option for the supply of replacement components and for repair and service of motor vehicles. The existence of a competitive vehicle aftermarket ensures that owners have access to convenient, affordable and high-quality repair for vehicles, providing incentives for owners to properly maintain the critical safety and emissions control systems on vehicles, and thereby reduce the potential for accidents on our highways and greenhouse gas emissions.

The auto care industry also produces economic benefits for the U.S., employing over 4.7 million people, generating $448 billion in sales and contributing over 2 percent to GDP. Surveys have consistently shown that once the new car warranty has expired, 70-75 percent of car owners choose to utilize independent repair shops over the manufacturer authorized repair network based on price, convenience, and trust. We believe that while different in size, the importance of an independent repair market to Canadian car owners is similar to those in the U.S.

The importance of accessing computer software for the purposes of repair have grown astronomically over the past several decades. This point is illustrated by the increasing number of electronic control modules on late model vehicles. For example, a 2001 Chevy Suburban had 9 electronic control modules; a 2015 version of the same model had 70 modules; and in 2021, the Suburban comes equipped with 103 modules. In 2025, the Chevy Suburban is expected to have 150 modules. Today’s engines, transmission, oxygen sensors, ignitions, brakes, emissions systems, electric windows, air blowers, air bags, and even windshield wipers that used to be controlled electro-mechanically are now controlled by microprocessors and software.

Historically, patent law in the U.S. has guaranteed consumers the right to repair their vehicles themselves or at the repair shop of their choice. With the sale of the vehicle, the manufacturers’ patent rights are exhausted, and the manufacturers’ patent monopoly give way to the consumer’s right to benefit from market competition.

But consumers’ right to repair under patent law is being threatened by the use by car and truck manufacturers of technological protection measures (TPM) which have the effect of locking up vehicle electronic control modules and shutting out competition from independent repair shops and parts manufacturers. Many of these TPMs are not only specific to particular make and model cars, but they can be serialized to a specific VIN (vehicle identification number).

The TPM measures manufacturers deploy have pernicious effects on competition. They hinder access by independent repair shops to the software that is necessary to perform car repair and improvement; they prevent innovative competitors from adding new software functionality that interoperates with the existing software; and they wall off access to non-copyrightable parameters and functions that must be altered in order to improve or optimize vehicle performance. Further, they prevent companies producing diagnostic tools for the independent auto care industry from copying vehicle software for the purpose of reverse engineering the vehicle systems to ensure interoperability with their own tools.

The Digital Millennium Copyright Act (DMCA), and in particular Section 1201 of that Act which was enacted by the U.S. Congress in 1998, prohibits the circumvention of TPM’s. Independent parts manufacturers have been subjected to lawsuits and legal threats under Section 1201 of DMCA for circumventing the automakers’ TPMs, just to facilitate repair that had been lawful under patent law. Section 1201 does provide the ability for the Librarian of Congress to grant an exemption if Section 1201 is used in a way to stifle competition. In fact, after extensive hearing and comment period, the Librarian has granted exemptions under Section 1201 for motorized vehicle repair in 2015 and 2018; and is proposing to do so again in 2021.

However, the Librarian and the Copyright Office have noted that the exemptions they have granted have limited utility without assistance in circumvention and access to the means to circumvent. The Librarian’s 2018 exemption rulemaking interpreted Section 1201 correctly to allow repair shops, as “users,” to circumvent the TPMs in order to repair the consumers’ vehicles. But as TPMs become more sophisticated and difficult to circumvent, consumers and independent repair facilities cannot exercise their rights to repair under the exemption without access to circumvention tools. As a result, current Section 1201(a) unintentionally, but effectively, limits consumers’ right of repair, and makes the motorized vehicle exemption somewhat limited in its ability to ensure competition to consumers.

These marketplace realities and the increased use of software on vehicles and other products demonstrate the urgent need to ensure that copyright law does not prevent competition in the repair market for vehicles. While we are not experts on Canadian software copyright laws, the following are some recommendations on aspects of copyright protection that should be considered in order to ensure competition:

  • Consumer should have the ability to circumvent the software on their vehicle for the purposes of legal repair and maintenance of their vehicle.
  • Further, consumers should have the ability to obtain third party assistance in order to circumvent software for the purposes of repairs. Clearly, the use of computers and sophisticated software on today’s cars makes it very difficult for many car owners to perform the repair themselves. Therefore, it is critical that if circumvention of software is necessary to undertake a repair, consumers must be given the opportunity to have a professional technician perform the circumvention.
  • Copyright law also should provide for the use of tools needed to facilitate circumvention of in- vehicle software. Given the number of software routines in each car, the complexity of the software, and the robustness of technological measures, an individual consumer would find it daunting to circumvent and repair every possible module in a motor vehicle without assistance. Similarly, it is unrealistic to expect that every independent repair shop would be able to perform these tasks for literally hundreds of makes and models of motor vehicles over their useful life, unless tools that have effective functionality for each make and model are available. For today’s motor vehicles, every repair shop, whether an authorized dealer or an independent, must have access to sophisticated tools. In fact, today’s shop owner spends tens of thousands of dollars just to keep up with the latest diagnostic and repair technology needed to work on today’s vehicles. Failure to take into account tools needed to circumvent software necessary to provide repairs would eviscerate the exemptions provided to car owners for circumvention.

Thank you again for the opportunity to comment on the importance of ensuring that software copyright law does not inhibit the ability for consumers to obtain repairs from independent repair shops. Please feel free to contact me should you have any questions regarding our comments.

Sincerely,

Aaron Lowe
Senior Vice President, Regulatory and Government Affairs Auto Care Association