Heavy Duty by Thomas Hawk (CC BY-NC 2.0) https://flic.kr/p/MTgEda

Heavy Duty by Thomas Hawk (CC BY-NC 2.0) https://flic.kr/p/MTgEda

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Industry Committee Recommends Adding Digital Lock Exception to USMCA Copyright Provisions

The Standing Committee on Industry, Science and Technology has released its recommendations for changes to Bill C-4, the bill designed to implement the Canada-US-Mexico Trade Agreement. I appeared before the committee and used this week’s Lawbytes podcast to highlight some of the discussion. The committee had a limited time to study the bill, but arrived at some important recommendations on the copyright and digital policy provisions.

First, it recommended adding a new exception to Canada’s digital lock rules to address concerns in the agriculture sector about the right to repair their equipment. The issue has been gaining momentum around the world as many identify the over-broad restrictions often associated with anti-circumvention laws. The recommendation:

(9) Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle such as a personal automobile, commercial vehicle, or mechanized agricultural vehicle, except for programs accessed through a separate subscription service, when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle function, where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works.

Second, the committee highlighted concerns with the extension in the term of copyright and called on the government to embed within the bill the recommendations arising from last year’s copyright review. That would include using the 30 month implementation period for copyright term extension to establish a registration requirement for those rights holders that want to an additional 20 years to the international standard of life of the author plus 50 years.

Third, the committee points to many digital law issues and “the lack of preparedness by the trade negotiation team”. The full statement:

CUSMA also precludes Canada from making sovereign decisions on how it will deal with data protection, because the government has failed to establish a national data strategy in a timely fashion. This has the potential for massive negative impacts on the Canadian economy as the digital economy grows and potentially displaces other forms of industry as a primary source of global economic growth.

Other jurisdictions such as the EU have not entrenched provisions similar to those found in Chapter 19 of CUSMA because of the newness of the field and the need to have clear strategies around economic growth and regulation of data ownership prior to signing away sovereignty on the same.
What particularly shocked our committee was the lack of preparedness by the trade negotiation team, in testimony, to explain what analysis and strategy was used by the government in making significant concessions in Chapter 19 of CUSMA. Given the failure of the government to draft a national strategy on the digital economy prior to signing off on CUSMA, the recommendations contained herein are particularly acute.

CUSMA also enshrines internet safe harbours, whereby internet companies are not liable for the content of their users. This restricts the ability for a country to create a system premised on liability for Internet companies. Additionally, the new trade agreement has raised uncertainties with regards to privacy laws and potential future reforms being contemplated and anticipated with regards digital consumer rights.

As such, we encourage you to look for ways to embed the following into Bill C-4:

• Clarify how anti-localization provisions will affect provinces like British Columbia and Nova Scotia who currently have data localization laws for things like financial information.
• Study the impact of the data provisions in Chapter 19 of CUSMA on the Canadian economy with a specific focus on how they value of data.
• On an urgent basis, create a National Data Strategy.
• Provide an analysis on how the principle of internet safe harbours will impact the Government’s proposal to regulate online content.
• Study and evaluate how future consumer protections in the digital services and telecom sectors could be impacted by CUSMA.
• Establish mitigation measures to ensure future reforms and new authorities granted to the Privacy Commissioner to protect Canadians can sustain any challenges.
• In order to accurately inform Canada’s policy response of the economic and non economic effects of the Intellectual Property (IP) and Data provisions of the CUSMA to effectively manage strategies that address the highly consequential nature this legislation has on all Canadians it is suggested that a clause be inserted into the legislation requiring a review of its effects as well as Canada’s policy strategies for the digital economy no later than 1 calendar year from those sections coming into force, with subsequent reviews taking place no later than every 2 calendar years thereafter. The review is to be conducted by the House of Commons and tabled in a timely manner in accordance with the review schedule. This, for example, could be included in Part 3 of the Act titled ‘Coming into Force’. It can be included as a subsection 5 or included as an additional clause at the end of each section requiring a 1 year review.

The bill is currently being debated at third reading in the House of Commons.

3 Comments

  1. We have printer ink with microchips that have no other purpose than to turn their “intellectual property” into rent-collecting devices. We have these on coffee makers and we’d have them on razor blades if they could find some excuse to make them all electronic. There’s dozens of other IOT devices that could be next. This is a scourge with no other purpose than to filter money into the pockets of the rich. Why on earth should we stop at tracktors? We need to protect our right to do anything we might ever be able to do, with ANY device we own, including our computers, our phones and our TVs. No exceptions. The reign of rent-seeking “intellectual property” owners is over.

  2. Pingback: News of the Week; March 18, 2020 – Communications Law at Allard Hall

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