As Canadians ring in the new year after the peak holiday shopping season, consumers, manufacturers and retailers of computerized electronics, would do well to observe developments related to an emerging “right to repair” in Canada.
On November 7, 2024, Canada’s Parliament enacted Bills C-244[1] and C-294,[2] which amended the Copyright Actto lift prohibitions on the circumvention of computer programs and devices constituting technological protective measures (TPMs) for purposes of repairing computerized products. These enactments are part of a suite of federal government initiatives aimed at product life-extension, namely, (i) amendments to the Competition Act(in force as of June 20, 2024) that allow the Competition Tribunal to grant relief for suppliers’ refusal to make available a means of diagnosis, maintenance or repair and (ii) the public consultation on a proposed Right to Repair Framework that closed on September 26, 2024.
TPMs are digital locks, put in place by designers and manufacturers to prevent third parties from accessing and infringing the copyrights to software and associated devices. Circumvention of TPMs is typically an act of copyright infringement that is prohibited by section 41.1 of the Copyright Act (Circumvention Prohibitions).The Competition Bureau identified the Circumvention Prohibitions as an obstacle to competition in the repair market, as lack of access to diagnostic and repair information effectively barred independent repairers from offering repair services, leaving consumers with little choice but to return to copyright holders (i.e., the manufacturer) for repairs.[3] Furthermore, as a matter of federal jurisdiction,[4] the Copyright Act is paramount relative to any conflicting provincial legislation, meaning provincial attempts to implement a meaningful right to repair (generally under consumer protection legislation) would be superseded – and therefore impeded – by the Circumvention Prohibitions.
Bills C-244 and C-294 work in tandem to amend the Copyright Act to exempt certain activities from the Circumvention Prohibitions. Put simply, consumers and business may now bypass or disable TPMs in order to make their devices communicate, work together and, where possible, allow for the remote repair of certain devices.
First, Bill C-244, amends the definitions of both “circumvent” and “TPM” to explicitly include computer programs, broadening and clarifying the scope of permissible repair activity.[5] Bill C-244 creates an exception to the Circumvention Prohibitions such that it is no longer an act of copyright infringement for certain persons to circumvent an otherwise proprietary TPM for the sole purpose of diagnosing, maintaining and repairing a product. This means that owners and third-party repairers may now legally access the software embedded in their products to read and interpret diagnostic codes and data in order to maintain and repair said products.[6]
Second, Bill C-294 creates a similar exemption such that it is no longer an act of copyright infringement for certain persons to circumvent an otherwise proprietary TPM for the purpose of making a computer program – or the device in which it is embedded- interoperable with any other computer program, device or components, or to obtain information that would allow the foregoing.[7]
These amendments to the Copyright Actare part of a broader policy initiative to increase the durability and longevity of computerized goods and to reduce the volume of e-waste entering landfills and the environment. Internationally, countries have encouraged product durability and repair through repairability labelling schemes and tax breaks for consumers who choose repair over new consumption.[8] Certainly, we expect to see the development of a third-party repair services market in Canada. While Bills C-244 and C-294 do not themselves compel producers to provide diagnostic information, or otherwise make software-driven goods repairable or interoperable, industry may reasonably expect the promulgation of complementary provincial consumer protection legislation that is compulsory in nature, as already enacted in Québec and as proposed in Ontario.
Québec’s Bill 29 (2023) introduced a right to repair to the Consumer Protection Act. The bill aims to increase the lifespan of consumer products by (i) banning planned obsolescence (i.e., techniques aimed at reducing a product’s normal operating life), (ii) implementing minimum warranty periods for consumer automobiles, electronics and appliances during which the manufacturer must repair such products and (iii) obligating manufacturers to make available tools, parts and information necessary for repair for a “reasonable time” after the sale of such goods.[9] Provisions compelling merchants and manufacturers to act, including the latter provisions of Bill 29, do not kick in until October 2026.
Similarly, Ontario’s Bill 187, which passed first reading in the Legislative Assembly of Ontario in April 2024, proposes to amend the Consumer Protection Actto require manufacturers to provide repair manuals, replacement parts and software and tools to allow consumers and businesses to diagnose, maintain, or repair branded electronic products, household appliances, or wheelchairs.[10]
In the wakes of Bills C-244 and C-294, consumers will be able to repair their own goods, and an independent third party repair market could emerge. It remains to be seen whether the Competition Bureau’s prediction—that amendments to the Copyright Act could create pro-competitive benefits for consumers and businesses—will hold true.[11] What is almost certain is further statutory reform in Canada to promote durability and repair schemes.
Dentons Canada’s National Regulatory Group continues to watch these developments closely and assess the potential impacts on various stakeholder groups, including designers, manufacturers, suppliers and retailers. For businesses seeking advice and/or assistance with meeting their regulatory obligations, please contact Monica Song, Yulia Konarski and Emma Fillman.
The authors gratefully acknowledge the contribution of Olivia Graham, Student-at-Law, to the development of this post.
[1] Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair), 1st Sess, 44th Parl, 2024 (as passed by the House of Commons and the Senate 31 October, 2024) (“Bill C-244”).
[2] Bill C-294, An Act to amend the Copyright Act (interoperability), 1st Sess, 44th Parl, 2024 (as passed by the House of Commons and the Senate 31 October, 2024) (“Bill C-294”).
[3] Competition Bureau, “Competition Bureau Submission to the Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things”, (September 28, 2021), Part IV (“Competition Bureau”).
[4] Constitution Act, 1867, section 91.
[5] Bill C-244, supra.
[6] Bill C-244, supra.
[7] See also Innovation, Science, and Economic Development Canada, Right to Repair Consultation Document, which defines “interoperability” as “the degree to which software systems, devices, or applications can connect or communicate with each other in a coordinated matter”.
[8] In 2020, France implemented a “repairability / durability index” labelling scheme law n°2020-105, Anti-Waste and Circular Economy; Alexander Starritt, “Sweden is paying people to fix their belongings instead of throwing them away” (27 October 2016), online: World Economic Forum.
[9] Bill 29, An Act to protect consumer from planned obsolescence and to promote the durability, repairability and maintenance of goods, 1st Sess, 43rd Leg, Québec, 2023, assented to October 5, 2023.Note that the provisions implementing the merchant and manufacturer obligations do not come into force until October 5, 2026.
[10] Bill 187, Right to Repair Consumer Electronic Products, Household Appliances, Wheelchairs, Motor Vehicles and Farming Equipment Act, 1st Sess, 43rd Parliament, Ontario, 2024. This bill proposes to amend the Consumer Protection Act, 2023, S.O. 2023, c 23, Schedule 1 (not yet in force) by adding a new section.
[11] Competition Bureau, supra, Parts I, V.
