John Deere Canada ULC

September 16, 2021

Innovation, Science and Economic Development Canada
C.D. Howe Building
235 Queen Street
Ottawa, Ontario K1A 0H5
Canada

Delivered via e-mail to: copyright-consultation-droitdauteur@canada.ca

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

On behalf of John Deere Canada ULC, I appreciate the opportunity to submit comments in response to the Government of Canada’s (the “Government”) consideration of whether to make changes to Canada’s technological protection measures (“TPM”) framework to facilitate repair as part of the Copyright Act review.

John Deere Canada ULC is a wholly owned indirect subsidiary of Deere & Company (collectively, “Deere”) and supports Deere’s operations in Canada. Deere and our dealers employ more than 6000 people across Canada with the majority of those employees located in areas that support rural and regional communities.

For 184 years, Deere has demonstrated its commitment to customers by providing high-quality equipment, technologies, and solutions that enhance productivity. This commitment includes fully supporting our customers’ right to maintain, diagnose, and repair their equipment and avoid unanticipated, unproductive, and costly downtime. Through our extensive offerings of repair materials, diagnostic tools, and parts, Deere is already meeting this commitment under the existing legislation.

Deere urges the Government to consider the following critical points as it contemplates copyright measures to facilitate repair:

1. Customers can repair their own equipment without a circumvention of TPMs

The repair of agricultural and construction equipment does not require a circumvention of TPMs because Deere, or its suppliers, or its service providers, provide access to commercially available software updates (e.g., in object code form) to the proprietary software used in John Deere equipment. Moreover, Deere offers and supports the safe repair of agricultural and construction equipment by customers and independent service organizations (“ISO”) through the easy acquisition of service parts, operating and repair manual, product guides, service demonstrations, fleet management information, on-board diagnostics and electronic field diagnostic tools from a vast network of over 270 John Deere dealer locations in Canada alone.  For example, repair-related publications are available in both digital and print format and for agricultural and turf equipment can be purchased from any of our Deere dealers or via https://techpubs.deere.com. Deere also offers mobile apps, online how-to videos (primarily via YouTube at https://www.youtube.com/user/JohnDeere), special repair tools and electronic service tools, including John Deere Customer Service ADVISOR™, diagnostic software available for purchase from authorized Deere dealers that allows customers and non-authorized Deere dealers to diagnose, repair and calibrate equipment. Similar diagnostic software is also available from aftermarket third-party sellers.

When customers buy from Deere, they can choose to personally maintain or repair the product.  Deere provides access to maintenance, diagnostic and repair information of equipment through the following means:

1. Manuals (Operator, Parts, Service).
2. Product Guides – Quick Reference Guides.
3. Product Service Demonstrations, Training, Seminars or Clinics:
   1. Training and Safety Videos.
   2. Simulators.
4. Fleet Management Information:
   1. John Deere Connected Support.
   2. JDLink™.
5. On-Board Diagnostics via diagnostics port or wireless interface:
   1. Machine issues are identified by a specific Diagnostic Trouble Code (DTC) that can be accessed through the machine display or dash. Some machines allow for the basic description of the DTC to be viewed.
   2. Mobile Apps (access through the John Deere App Center app) - provide operating tips and basic troubleshooting information. Some apps also provide the ability to look up Diagnostic Trouble Codes (DTCs) for more information.
6. Electronic Field Diagnostic Service Tools and training on how to use them:
   1. Customer Service ADVISOR™: access to operator and technical manuals, look up diagnostics codes, machine diagnostic connectivity with electronic data link (EDL) and perform machine calibrations.
   2. Other publications with information on service, parts, operation and safety.
   3. Safety Information.
   4. Operation Training.
   5. Warranty & Protection Plans.

Furthermore, Deere’s warranty terms do not restrict a customer from repairing equipment themselves or seeking repair from an ISO, nor does it void the warranty for such actions.

2. Repair vs Software Modification

Deere supports our customers’ right to maintain and repair their equipment, but not the right to modify embedded code in equipment, which raises safety, emissions and intellectual property infringement and misuse concerns. For example, the Canadian market is replete with advertisements and offers to remap, chip or tune diesel engines, without regard to the impact on dealer and Deere emissions obligations, manufacturer warranty, engine durability and the environment. Manufacturers must be able to protect against the significant damage to their brand and reputation caused by potential safety and performance issues that could arise from third party modifications to embedded code. Additionally, such tuning of diesel engines is often not detectable to subsequent purchasers. This is a challenge to the extent that dealers are subject to certain obligations to return the emission controls on engines to the original factory settings.

3. Safety

Unauthorized software modification also has significant implications for equipment operator and bystander safety. Authorized Deere dealers are contractually required to ensure that all machines sold or repaired are done so with the highest level of safeguarding for the end user and public. Requiring equipment manufacturers to provide unfettered access to embedded software code would enable and encourage unauthorized modification of software in a way that bypasses certain safety protocols, while also potentially creating unsafe equipment as a byproduct. This is particularly problematic because such unauthorized modifications could be difficult to detect during resale or leasing of used equipment. It is not an overstatement to say that multi-ton construction and agricultural equipment pose far higher safety risks to users and bystanders than does a mobile phone or other consumer device that may be subject to relaxed copyright anti-circumvention rules.

4. Intellectual Property Interests

Deere is concerned that the proposed changes to copyright and intellectual property laws could adversely impact investment and innovation. Businesses are more likely to invest, and lenders provide funding for technology and innovation when they have confidence in the protections offered by robust copyright and intellectual property regulations. Many of the productivity and performance gains that have been delivered to customers and the agricultural industry are a direct result of businesses willing to invest in the necessary R&D and technology knowing this investment is protected. As an example, John Deere’s See & Spray offers revolutionary technology to reduce costs and environmental impact of chemical use and improve yields. Such innovation would not be possible without protections from third-party access to trade secrets and software code. As an example of the productivity gains this offers for customers, through this integrated camera technology which rapidly detects green plants within fallow ground and automatically triggers an application to those plants. In doing so, it achieves a similar hit rate to traditional broadcast spraying but uses, on average, over 70% less herbicide^{Footnote 1}.

Conclusion

As the Government considers the submissions on the topic of right to repair, Deere asks that any changes to rules recognize the critical distinction between right to repair and unauthorized modification; repairs to John Deere equipment can be completed without the circumvention of any TPMs, such as by authorized dealers or customers who use Deere-provided or supplier-provided software updates.

Yours very truly,
John Deere Canada ULC
Per:
Greg S. Tooke   
President