News

28 November 2023

Quebec is the first province in Canada to adopt Right to Repair legislation amending the province's Consumer Protection Act (CPA). Officially titled "Bill 29, an Act to protect consumers from planned obsolescence and to promote the durability, repairability and maintenance goods", the legislation represents a huge step forward for more repair-oriented consumer protection laws in Canada. Undoubtedly, the effort builds upon the early push toward legislation of this kind by Quebec MNA Guy Ouellette with Bill 197 in 2019. 

The main tenets of the new Bill 29 are:

• Planned obsolescence tactics are an offence - The Bill prohibits manufacturers' use of planned obsolescence techniques that reduce the normal operating life of products or devices, including the manufacture or sale of goods that embody these techniques;

• A new warranty of "good working order" - Building upon the existing implied warranties of "fit for purpose" and "mechantible quality" found in consumer protection laws throughout Canada, Bill 29 introduces an additional and set duration warranty for specific types of goods (e.g., household appliances, consumer computing devices, and potentially others). 

• Mandating the availability of spare parts and information - Bill 29 obligates manufacturers of goods that require maintenance, replacement, cleaning, or updating to make replacement parts and repair services available for a reasonable period of time after sale and for a reasonable price.

Overall, Bill 29 is an enormous win for the Right to Repair in Quebec. It offers important leadership at the provincial level that has been absent ever since Ontario's efforts in 2019 for repair-friendly consumer protection reforms were ultimately unsuccessful. With a renewed focus on the Right to Repair, increasing public awareness and calls for action, Quebec's Bill 29 could also serve as a model for provincial legislation throughout the rest of Canada. 

Right to Repair advocates across Canada should applaud the efforts of the grassroots and legislative efforts that have led to this success. For a more comprehensive overview of the Bill, read this excellent overview written by Pascale Dionne-Bourassa, Francesca Taddeo, Melina Cardinal-Bradette and Julia Mogus on the Bennett Jones blog.

23 November 2023

In a bold move toward empowering consumers, reducing costs, and promoting sustainability, the Government of Canada’s Fall Economic Statement has reiterated its commitment to the right to repair, but this time with a focus on the Competition Act. The Statement signals a decisive step in the march toward repair by preventing manufacturers from anti-competitively refusing to provide the “means of repair for devices and products”. This is welcome news for repair advocates, but realizing upon it will not be without its challenges.

With Bill C-244 (amending the copyright act to allow access to device software for repair-related purposes) receiving unanimous support in the House of Commons and now before the Senate, the focus on competition law reforms signals that the government has taken a broad view of their legislative strategy for the right to repair. But as many have observed, the approaches taken by manufacturers to refuse access to the “means of repair” are often rooted in intellectual property (IP) rights. Though Bill C-244’s focus on embedded software promises to help in this regard, copyright in software is just one of many IP rights that can be leveraged to keep a tight leash on repair. Addressing these issues at the competition law level will require a more comprehensive view of the IP dynamics at play when crafting new policy.

How do intellectual property rights and competition policy interact?

Common business models of manufacturers seeking to restrict access to repair often rely on a combination of copyright, software protection, patent law, industrial design, trademark law, contractual terms of use and warranties to maintain a tight grip on repair processes. A key challenge in recalibrating Canada’s competition rules will be in navigating this often overlapping and complex network of IP rights. Crucial to any renewed competition policy to promote repair will be the ability to distinguish between legitimate exercises of IP rights, and those solely wielded to prevent independent repair and secondary markets to flourish.

The IP rights that inhibit repair are broad in scope. For example, patent rights can be asserted to safeguard the technical aspects of manufacturer’s devices and products. This includes intricate components and proprietary technologies that are integral to the functionality of devices. In some cases, the line between repairing or “remaking” a product or device with patented components is not entirely clear.

Industrial designs are lesser-known IP rights that can also impact repair. These rights focus on the aesthetic elements of products or their components. Manufacturers often use distinctive designs as a means of product differentiation. What often comes to mind are product designs like the Crown Royal Canadian Whisky bottle shape, but these rights can also protect the distinctive shape of a car’s taillight or other functional parts, for example. In these types of situations, the distinctive design of parts or components may be the only one that will fit or work properly for the purposes of repair. For these reasons, industrial design rights can act to prevent others from manufacturing or selling replacement parts.

Trademark law, which safeguards brand identity and prevents consumer confusion in the marketplace, is also a vehicle manufacturers use to control repair avenues. In some cases, refurbished or replacement parts will bear small trademarks of the original manufacturer. Even if these logos are not visible after the part has been installed into the device, their existence on the part itself may be enough to empower the Canadian Border Services Agency to deem them “counterfeit goods”, allowing the CBSA to destroy them and issue fines. A challenge for Canada’s competition authorities lies in crafting amendments that prevent these abusive uses of trademark rights without diluting their essential protection or the legitimate need to combat the importation of counterfeit goods.

Updated and improved guidelines will be crucial

The challenge for policymakers will be in crafting amendments to the Competition Act that prevent these abusive practices while also not undermining or compromising the exclusive rights guaranteed by various IP statutes. It would certainly not be the first time that policymakers have put their mind to these issues, however. Canada’s Intellectual Property Law Enforcement Guidelines acknowledge the intricate relationship between intellectual property and competition law, emphasizing the need for careful consideration of the unique aspects of each situation. It is foreseeable that any approach to recalibrate Canada’s competition rules to embrace repair will need to revisit (and likely add to) these Guidelines. In many ways, we are charting new waters here when it comes to the competition and IP interface.

And of course, the international dimension adds another layer of intricacy to this tightrope walk. Canada's commitments under various agreements, including the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), necessitate that Canada guarantee a certain level of protection for various forms of IP rights. The proposed amendments to the Competition Act must not only uphold national guarantees but also align with these international obligations.

It will not be an easy tightrope to walk, but it absolutely must be done for Canada to move forward with the right to repair. The Fall Economic Statement signifies a recognition and willingness to see the right to repair as a broad-based policy initiative, and this deserves our applause and optimism.

The intricate dance between competition law and guaranteeing protection for various intellectual property rights will require a nuanced approach. But this also signals an opportunity. Just as Canada has shown global leadership with its willingness to take on software-based restrictions to repair with Bills C-244 an C-294, it now has the opportunity to set a precedent for a comprehensive and balanced competition law approach to the right to repair that can serve as a global model.

8 February 2022

Liberal MP Wilson Miao introduced a private member's bill today in the House of Commons that renews last year's efforts by Cambridge MP Bryan May to amend Canada's Copyright Act. The previous Bill C-272 sought to add a new exception to Canada's anticircumvention provisions which would make it lawful to circumvent digital locks for the "sole purpose of diagnosing, maintaining or repairing a product in which the computer program is embedded." Unfortunately, May's bill died on the Order Paper in late 2021 when the federal election was called. Up until this point, May's bill had received the unanimous support of Parliament, bridging many of the usual partisan divides.

Thankfully, MP Miao's Bill C-244 effectively reintroduces the previous Bill C-272. Speaking to Parliament on February 8, MP Miao remarked that Bill C-244 is "...aimed at addressing copyright that is being used to stop Canadians from repairing and maintaining items that have been purchased and are owned by Canadians. It is a targeted bill that creates specific exemptions to copyright. When an individual makes a purchase of an item, the owner should have a right to repair it and not be restricted by the manufacturer. Being able to repair the items we own is critical to the well-being of our environment."

There is much to agree with in MP Miao's statement. Though there are no guarantees in politics, we anticipate that Bill C-244 will receive the support of Parliament in the coming months. 

16 December 2021

Today Prime Minister Justin Trudeau issued mandate letters to the Canadian Minister of Innovation, Science and Industry as well as the Minister of Environment and Climate Change. Each of these mandate letters requested that the Ministers take action toward the Right to Repair in Canada. 

In the letter to the Minister of Innovation, Science and Industry, Prime Minister Trudeau  requested that Minister Champagne "...[W]ork with the Minister of Environment and Climate Change to implement a 'right to repair' to extend the life of home appliances, particularly electronics, by requiring manufacturers to supply repair manuals and spare parts, and by amending the Copyright Act to allow for the repair of digital devices and systems".

Likewise, in the letter to the Minister of Environment and Climate Change, the Prime Minister asked Minister Guilbeault to "...[W]ork with the Minister of Innovation, Science and Industry to implement a "right to repair" to extend the life of home appliances, particularly electronics, and require businesses to inform Canadians of the environmental impacts of consumer products." 

Ministerial mandate letters are an important part of setting government priorities. By explicitly including mandates for these ministers to implement the Right to Repair, the future looks promising for future legislative amendments in this direction.

7 October 2021

CanRepair will be hosting its inaugural Repair Summit and Meeting on Monday, October 25 at 6:00PM Eastern Time (Zoom).

At the Summit we will receive an update from various stakeholders in the Canadian Repair community on their work in moving the #RightToRepair forward. This includes recent developments on the federal, provincial and grassroots levels. We will also hear about some exciting research underway on repair-related issues in Canada.

Have some news to share? We would love to hear it. To receive your invitation to the event, please join our mailing list!

23 July 2021

The Government of Canada's Innovation, Science and Economic Development Canada ("ISED") has announced that the public will be consulted regarding its ongoing efforts to ensure that the Copyright Act is responsive to innovation and investment in the context of new technologies. This round of public consultation will be inviting comments regarding the application of copyright to artificial intelligence systems and Internet of Things ("IoT") devices.

The Press Release prepared by the Government of Canada stresses the importance of ensuring that Canada's copyright framework is "able to respond effectively to new challenges". The consultation will seek to address specific topics in relation to copyright, including repair and interoperability issues related to technological protection measures.

Technological protection measures, also known as "digital locks", can present significant barriers to repair. They can prevent independent repairers from accessing diagnostic information, prevent replacement parts from activating, or in some cases, completely disable devices which are repaired by anyone other than the original equipment manufacturer.

CanRepair is inviting all repair advocates in Canada and beyond to consider making submissions to the consultation, which remains open until 17 September 2021. You can find the consultation paper here, and more information regarding the public consultation process and format in the Government's press release.