Canada has an electronic waste problem, and copyright law is partly to blame.
Canada’s electronic waste has increased more than threefold over the last two decades, increasing from 8.3 kg per person in 2000 to 25.3 kg per person in 2020. In total, Canada produced approximately one million tonnes of e-waste in 2020.
Copyright law has contributed to this problem by making electronic devices more difficult to repair. The Copyright Act allows manufacturers to place technological protection measures (TPMs) on copyrighted software embedded in those devices, and prohibits consumers or independent repair shops from circumventing the TPMs to access the software, inhibiting consumers’ ability to diagnose and repair problems with the device. As a result, manufacturers have “sweeping control over aftermarket service”, driving up the cost and inconvenience of repair. Consequently, consumers often choose to replace rather than repair their electronic devices.
To address this problem, the federal government has introduced Bill C-244, which would amend the Copyright Act to allow circumvention of technological protection measures for the purposes of diagnosis and repair. Bill C-244 was passed unanimously by the House of Commons and is now before the Senate.
This post will provide a brief overview of how Bill C-244 will change the law pertaining to technological protection measures and will discuss how this change might impact the elusive goal of the Copyright Act: maintaining a balance between creators’ and consumers’ rights.
Changes to the Current Legislative Framework
The Copyright Act provides that no person shall circumvent a technological protection measure as defined in the Act (Copyright Act, section 41.1(1)(a)). If that provision is contravened, the affected copyright owner is entitled to “all remedies – by way of injunction, damages, accounts, delivery up and otherwise – that are or may be conferred by law for the infringement of copyright”. (Copyright Act, section 41.1(2)).
If passed by the Senate, Bill C-244 would enact a new exemption from the prohibition on circumventing a technological protection measure, as follows:
- 41.121(1) – Paragraph 41.1(1)(a) [prohibition on circumventing a technological protection measure] 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.
- 41.121(2) – For greater certainty, subsection (1) applies to a person who circumvents a technological protection measure in the circumstances referred to in that subsection for another person.
- 41.121(3) – A person acting in the circumstances referred to in subsection (1) is not entitled to benefit from the exception under that subsection if the person does an act that constitutes an infringement of copyright.
(Emphasis added.)
Implications for the Balance Between Creators’ and Consumers’ Rights
As observed by the Supreme Court of Canada in Théberge v Galerie d’Art du Petit Champlain (2002 SCC 34), the purpose of the Copyright Act is to maintain a balance between the economic interest of the copyright holder in maintaining control over their work, and the proprietary interest of the consumer who purchases the copyright holder’s work.
Currently, at least with respect to copyrighted software embedded in electronic devices, the balance appears to be tilted heavily in favour of copyright holders. The prohibition against circumventing TPMs in this context not only protects the copyright holder’s interest in profiting from the sale of their original ideas as expressed in the copyrighted software, but also confers upon the copyright holder an advantage in the market for repair services for devices containing that software. This seems to create a perverse incentive by increasing copyright holders’ ability to profit from malfunctions in their devices.
If passed, Bill C-244 would shift the balance in favour of consumers by reducing the ability of copyright holders to prevent consumers from accessing copyrighted software. However, this incursion on the interests of copyright holders is limited in three significant ways.
First, the proposed section 41.121(23) makes it clear that the new exemption from circumvention rules does not offer any protection to a party who takes advantage of the exemption to commit another act of copyright infringement. If a user or third party circumvents a TPM for the purpose of repair and then proceeds to undertake an action that would constitute copyright infringement, such as copying a substantial part of the copyrighted work, they will be liable for such action.
Second, even if Bill C-244 passes, copyright holders can still limit access to copyrighted software by inserting language to that effect into contracts, warranties, and terms of use.
Third, even if circumvention of TPMs for the purpose of repair is permitted, consumers or third-party repair shops may not be able to exercise that freedom if they do not have the technological capability to decrypt or descramble computer programs or run diagnostic tests. Furthermore, repairing electronic devices can pose safety concerns to consumers who attempt repairs without guidance from the manufacturer or a trained professional.
Provincial legislatures could intervene to advance consumers’ interests by passing legislation that would require tech companies to provide consumers with the repair manuals, diagnostic tools, and parts needed to repair their own devices. Although big tech companies have successfully blocked right-to-repair legislation in Ontario and California, the movement to limit e-waste seems to be gaining momentum: in 2021, the Union of British Columbia Municipalities passed a resolution to ask the B.C. government to draft and enact right-to-repair legislation, and the federal government has proposed a bill that would broaden users’ ability to circumvent TPMs to make computer programs interoperable.
Do you think Bill C-244 strikes the right balance between creators’ and consumers’ rights? Should more be done to protect consumers’ or creators’ interests?
Copyright & Social Media
Communications Law
I enjoyed this read – It’s interesting to see how many students have touched on environmental issues related to IP in their posts! While I know AI is the up and coming hot topic, it would have been cool to see how environmental questions play into IP more in this course.
I definitely think this bill strikes a better balance between creators’ and consumers’ rights. I think especially of consumers in remote communities where they might not have all the options of repair shops to go to easily and may end up being essentially forced to purchase new devices as a result.
Your post left me with a few questions – firstly, is this change in the law being lobbied by environmental groups for this reason? Or is this more of a happy accident that electronic waste might end up reduced as a result to amendments to copyright law?
Second, having touched on patents today (Dec 4) in class, I wonder how else IP law could step in to avoid electronic waste. Technology advances quickly – much faster than the 20 year patent period. While other companies can build and improve on a patent holder’s invention, this might seem to lead to more and more “improved” or differentiated versions of essentially similar devices. It begs the question if a 20 year patent period is reasonable or should be shortened given the potential harms.