Malaphor: Digital Health Law in Canada

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‘Right to Repair’ legislation for electronic products is introduced in Ontario – could it be circumvented by anti-circumvention?

On February 21, 2019, Bill 72, Consumer Protection Amendment Act (Right to Repair Electronic Products), 2019 was proposed and carried through first reading at the Ontario Legislative Assembly. This proposed law is similar to ones that have been introduced in many states in the United States, following a movement started in 2016 (read about the origins of the Ontario bill in the article by MobileSyrup here). The movement is mainly based on the principle that one should have the right to fix their own things (electronic products) or choose the repairperson. Of course, there’s also the desire for saving money as well as to reduce waste.

If passed as-is, Bill 72 will require brand-name manufacturers to provide to consumers or repair businesses:

[…]with the most recent version of the documents, replacement parts, software and other tools that the brand holder uses for, or provides to others for
  (a)  diagnosing, maintaining or repairing the brand holder’s branded electronic products; or
  (b)  resetting an electronic security function of the brand holder’s branded electronic products if the function is disabled during diagnosis, maintenance or repair.

Documents are to be provided for free or at reasonable cost if a paper copy is requested, while replacement parts, software and other tools are to be provided at a “fair price” (although in my opinion there’s quite a bit of room for debate as to what exactly this means given the way the definition is currently written).

Needless to say, manufacturers have been quite opposed to this sort of legislation. And when I say ‘manufacturers’, I’m not just referring to smartphone makers, but manufacturers of all sorts of goods that contain electronics – and that’s a lot of them these days.

Now, there’s just one problem (and being an IP-focused lawyer, this is why I’m even writing about this) and that is the Copyright Act. More specifically, the part in the Act that makes it copyright infringement just to circumvent or break a digital lock (in the language of the Act, a “technological protection measure”, abbreviated as TPM). There are some exceptions, but these are even more restrictive than the ones in the US Digital Millenium Copyright Act (DMCA), the inspiration behind the Canadian law. Certainly “repair” is not an exception under Canadian law, but it is now for some goods (smartphones and certain IoT goods, and certain vehicles) by regulation in the US.

The consequence is that while under the proposed Ontario law, manufacturers can be made to cough up what you need to diagnose maintain or repair your digital devices, those same manufacturers can turn around and sue you (though more likely repair shops – suing customers directly would probably not be too good for business) for copyright infringement if the diagnosing, maintaining or repairing process circumvents a TPM. It would be fairly simple for a manufacturer to put a TPM into their product (if there isn’t already one in there) as a strategy to essentially get around the proposed Ontario law, especially since at the moment they would likely easily win their copyright case under Canadian law.

How easy, you ask? Check out these two cases reported by Professor Michael Geist: (1) this small claims case (thankfully has minimal precedent value), where the defendant asking someone for a copy of a newspaper article behind a paywall constituted circumvention of a TPM; and (2) this much larger case at the Federal Court, where the “interoperability” exception was quite narrowly construed.

Perhaps the one thing that might stop this strategy from actually working would be a constitutional challenge. I’m not sure why this defence was not raised in the Federal Court case noted above, but it’s been an issue that’s been long out there but not yet resolved. Since the time the TPM provisions were proposed, some scholars have argued that they would be/are ultra vires since the power to legislate in the area of personal property and civil rights belongs to the provinces (see this article, for example). And in the case of Bill 72, the subject matter clearly (I think) falls into this category as it restricts the definition of “electronic products” to “tangible goods that work at least in part because of electronics that are part of them or attached to them” [emphasis added]. If Bill 72 gets passed, it is probably on a collision course with the TPM provisions (unless they get amended, which is possible since the Act is currently under review).