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Colorado Rep. Brianna Titone sits in the wheel of a teactor on display before Colorado Gov. Jared Polis signed legislation that forces manufacturers to provide the necessary manuals, tools, parts and even software to farmers so they can fix their own machines Tuesday, April 25, 2023, during a ceremony outside the State Capitol in downtown Denver. Colorado is the first state to put the right-to-repair law into effect while at least 10 other states are considering similar measures. (AP Photo/David Zalubowski)David Zalubowski/The Associated Press

Anthony Rosborough is a doctoral researcher in law at the European University Institute and has been recently appointed as associate professor of law and computer science at Dalhousie University. Daniel Rangel is research director at the Rethink Trade program of the American Economic Liberties Project.

The Right to Repair has become a prominent issue of law and policy in Canada over the past few years. The movement calls for greater access to parts, tools and information to enable individuals and independent businesses to repair products and devices, ranging from smartphones to medical devices to cars.

Right to Repair advocates point to manufacturers’ planned obsolescence tactics, or deliberately making repair difficult using special tools, parts or scant repair information and instructions. The Right to Repair pushes back, seeking to extend product lifespan and reduce ecologically harmful resource extraction and manufacturing practices.

A new piece of proposed legislation amending the Copyright Act, which has moved through the House of Commons and is now before the Senate, Bill C-244, could mark a critical juncture in the movement’s success.

This legislative change, which received unanimous support in the House of Commons, aims to empower Canadians to repair a range of products by addressing a major hurdle: the legality of circumventing encryption or software protections, often employed by manufacturers to prevent access to device firmware or diagnostic information, effectively restricting repairs to a closed network of approved technicians.

But Bill C-244 also shines light on other dynamics at the international level that may pose challenges for Canada’s commitment to the Right to Repair. In particular, through the Canada-United States-Mexico Agreement, sometimes referred to as NAFTA 2.0, Canada has signed on to a number of obligations with respect to digital trade.

The scope of these provisions is far-reaching and it influences policy related to cross-border data flow, the protection of personal information, and how to regulate online platforms, among other key aspects of the digital economy.

A relatively unknown rule, laconically labelled “source code,” means that CUSMA’s digital trade rules also impose obligations on Canada to grant secrecy guarantees to software’s source code, beyond pre-existing trade commitments and domestic law that protects companies’ trade secrets or confidential business information.

More poignantly, however, these obligations require Canada to protect proprietary software and refrain from requiring manufacturers to provide access to source code, including diagnostic software, and even algorithms, including “digital keys” or algorithmic specifications.

These rules have the potential to empower technology companies with new censorship mechanisms that transcend intellectual property rights and could allow indefinite and unfettered control over diagnostic information and software.

Canada is also bound by similar language through the Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

If Canada’s future vision of the Right to Repair is to go beyond merely removing legal impediments to repair and to actively encourage it, policy-makers in Ottawa should take a hard look and reconsider digital trade and source code obligations. To achieve a meaningful Right to Repair, Parliament must be able to impose obligations on manufacturers (where reasonable) to provide access to diagnostic software, algorithmic specifications and device source code.

And if there were ever to be a time for Canada to reconsider these rules, now might be the time. For some years, a handful of countries, including Canada and the United States, have sought to expand digital trade rules through the World Trade Organization, where they could have untold consequences by covering virtually the entire global economy.

However, in a surprise move last month, the Office of the U.S. Trade Representative announced at the WTO that the United States was withdrawing support for a subset of its digital trade demands, which mimic CUSMA’s digital trade rules, including source code. According to the U.S. government, this decision was based on the need to develop an approach to digital trade that balances the right to regulate in the public interest and the policy space required to address anticompetitive behaviour in the digital economy.

Albeit surprising, this move did not come out of thin air. Several U.S. lawmakers and different stakeholders have been urging the Biden administration to rethink its digital trade strategy. This includes Right to Repair advocates who identified source code rules as an important obstacle for their successful campaign across U.S. states.

Canada should take note of these debates and the lessons learned south of the border. Without the ability to impose obligations on device manufacturers to provide access to diagnostic software and firmware, Canada’s Right to Repair risks being relegated to a mere “freedom to repair.” Its sole beneficiaries may be those with the technological inclination and means to act on their own.

Meaningful and broad-based repair policy that encourages secondary markets and independent businesses requires legal guarantees. CUSMA’s source code rules evidence a real threat to that. It’s time Canada takes note of this and considers all of the implications of digital trade rules in CUSMA and beyond.

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