Professor Anthony Rosborough, Assistant Professor of Law and Computer Science at Dalhousie University, joins Counterfactual host Valeska Rebello of Osler, Hoskin & Harcourt LLP and Kevin Hong, Counsel for Competition Bureau Legal Services, to provide insights on the Right to Repair.
In this episode of the Counterfactual Podcast, Valeska Rebello and Kevin Hong sit down with Professor Anthony Rosborough, Assistant Professor of Law and Computer Science at Dalhousie University, to discuss the “Right to Repair”. They discuss the recent amendments to the Competition Act, compare Canada’s approach to other jurisdictions, address practical enforcement challenges, and examine the broader social and economic impacts on repair restrictions. This episode is a collaboration with the Young Lawyer's Committee of the CBA's Competition Law and Foreign Investment Review section.
00:00:00
Welcome to Counterfactual, the podcast brought to you by the competition law and foreign investment review section of the Canadian Bar Association. Counterfactual takes a fresh look at issues relevant to business competition and related areas of regulation and explores the real and hypothetical worlds to gain practical insights and debate policy. Hope you enjoy the show.
00:00:30
Valeska Rebello
Hello and welcome to Counterfactual, the official podcast of the Canadian Bar Association's Competition Law and Foreign Investment Review section. My name is Valeska Rebello. I am an associate in the Competition and Foreign Investment Group at Osler, Hoskin & Harcourt.
00:00:46
Valeska Rebello
Please note that the views expressed on this podcast are my own and do not necessarily represent those of Osler or the Canadian Bar Association. I will be co-hosting this episode with Kevin Hong.
00:01:01
Valeska Rebello
Kevin, thank you for joining us and please introduce yourself to our listeners.
00:01:05
Kevin Hong
Thanks for having me. I'm Kevin Hong, counsel with Competition Bureau Legal Services, and also the Competition Bureau's representative on the CBA Competition Section's Young Lawyers Committee, who is co-sponsoring this episode of Counterfactual.
00:01:21
Kevin Hong
The Young Lawyers Committee is dedicated to supporting practitioners within their first 10 years of practice and we are very happy to be joining our colleagues at the Counterfactual team for this episode.
00:01:37
Kevin Hong
Like Valeska, all views expressed today are my own and do not represent the views of either the Competition Bureau or the Department of Justice.
00:01:44
Valeska Rebello
Great, thank you, Kevin. Our guest today is Anthony Rosborough, Assistant Professor of Law and Computer Science at Dalhousie University. Anthony teaches and writes at the intersection of ubiquitous computing, intellectual property law, and related policy issues.
00:02:01
Valeska Rebello
His core research area is the right to repair, which was the subject of his award-winning thesis, Our Own Devices, Recovering Human Agency Through the Right to Repair. Anthony is also a co-founder of the Canadian Repair Coalition, a nonprofit advocacy organization promoting legal and regulatory reform.
00:02:19
Valeska Rebello
As a frequent commentator on the right to repair, Anthony has provided expert testimony and advice to Canada's Standing Committee on Industry and Technology, the European Parliament, the European Commission, the Australian Productivity Commission, and the United States Librarian of Congress.
00:02:36
Valeska Rebello
Anthony, thank you very much for joining Kevin and I on Counterfactual today.
00:02:40
Anthony Rosborough
Thanks so much for having me.
00:02:41
Valeska Rebello
So I think we should dive right into our discussion and set the stage for our listeners. At a high level, what is the right to repair?
00:02:49
Anthony Rosborough
The right to repair is a social legal reform movement with its origins in consumer rights advocacy that is pushing for greater access to the parts, tools, information, and software that we need to fix everyday things, ranging from consumer products to industrial products for a whole range of reasons, some of which are environmental, some of which are to reduce costs for consumers.
00:03:12
Anthony Rosborough
Some of which are for economic competitiveness, as we'll talk about today, and for increasing the capacity of small businesses in more local communities. So there's a whole range of reasons for pushing for this, but its origins are kind of as a consumer movement.
00:03:27
Valeska Rebello
And what are some of the issues that the right to repair resolves?
00:03:34
Anthony Rosborough
Well, you could look at the right to repair solutions to this from a legal perspective as kind of along a spectrum. This is sort of some of my thinking on this, taking from constitutional theory where you have negative liberties and positive liberties. So on the one hand, the right to repair is about removing legal barriers that make repair either illegal or very difficult administratively.
00:03:54
Anthony Rosborough
And on the other end of the spectrum, where you could say is sort of positive rights, which is arming consumers with new rights and entitlements under consumer protection law to receive greater access to repair and to make products, for that matter, more repairable. So it's kind of a whole range of policy options that go from purely making repair legal to making repair possible.
00:04:18
Valeska Rebello
And you mentioned consumer protection. Can you walk us briefly through the different areas of law that touch on this right to repair debate?
00:04:28
Anthony Rosborough
Definitely. We can start with intellectual property law, which in Canada has gotten some attention in the past few years in terms of the right to repair. As you know, more or less every product and device now is computerized, and that creates a dependency in relation to software.
00:04:41
Anthony Rosborough
And where there's software, there's copyright. And where there's copyright, manufacturers as rights holders are armed with a whole suite of tools to prevent access and manipulation of the device, and that can impact repair in a whole bunch of ways. So one of the most poignant or lightning rod issues with intellectual property and repair has been through the Copyright Act, and particularly its protection of what are called technological protection measures or software locks.
00:05:05
Anthony Rosborough
And these can impede everyday people like you or I or independent technicians from obtaining access to device software, getting into firmware controls behind password protections, or needing special software to essentially unlock a device to make changes to it, to update it.
00:05:24
Anthony Rosborough
So that's one area where IP has become a real bottleneck. But there are other areas that are maybe less regarded or talked about. For example, trademark law is protections and restrictions against counterfeit goods can act as a barrier to having the importation of refurbished parts.
00:05:40
Anthony Rosborough
So for example, let's say you have refurbished iPhone screen assembly displays, and there's a microscopic Apple logo on the ribbon cable that the consumer owner never sees.
00:05:54
Anthony Rosborough
It's inside your device.
00:05:58
Anthony Rosborough
But the fact that it’s on the ribbon cable, and we're talking microscopic here, almost imperceptible. But the fact that it's there can mean that if these screens are refurbished, let's say, in Southeast Asia and imported by an independent shop, that can fall within the Trademark Act's restriction on the importation of counterfeit goods.
00:06:16
Anthony Rosborough
And we've seen this type of action happen in Norway. There's a well-reported case where this was the issue. And then there's also patent law. Of course, the distinction between repairing something and remaking it is sometimes a bit tenuous. In Canadian patent law anyway, there is a little bit of ambiguity as to when that threshold is met.
00:06:37
Anthony Rosborough
And so often in manufacturing replacement parts or in 3D printing, for example, a replacement part for a device that is not really essential necessarily to the invention, but could be argued as such by the manufacturer, you have areas where IP can be used as a stick in a way that maybe it wasn't really intended, and that is to provide temporary monopoly rights to allow economic exploitation. But here it's being used to suppress competition in a secondary market, that is for repair and servicing.
00:07:09
Anthony Rosborough
And so anyway, I could go on about all the different IP rights.
00:07:11
Anthony Rosborough
Trade secrecy is another one, or as we call it, confidential business information in Canada, is another area where manufacturers have asserted rights in all sorts of things to suppress access to repair resources.
00:07:26
Kevin Hong
So this is interesting, Anthony, because it seems like all of these different aspects of the right to repair are interrelated and can't just stand alone. So, for example, you might need a special screwdriver to open up your phone, but then you might also need the related intellectual property rights to manufacture or import the components that you want to replace. So it does seem to me, and this is something we will be getting to, it does require concerted effort across these multiple spheres to provide a meaningful right to repair.
00:07:58
Anthony Rosborough
Absolutely, and going with your example, once you've physically completed that repair, you often need software authorization to authenticate it because the device might not work properly until it receives a special approval through software. So that now you have another layer right on top of that.
00:08:12
Anthony Rosborough
And this is just the IP dimension. But as you've alluded to, that's only one kind of layer of the cake here. And so what we've seen in Canada in recent years is a really important step towards removing some of those software barriers, but has left open the hole in provincial consumer protection law to create a floor of minimum protections that consumers can rely on in terms of repairability. So there's these longstanding principles of fitness for purpose and merchantable quality for those who are familiar with consumer protection law that are part of most of the common law provinces' consumer protection statutes.
00:08:51
Anthony Rosborough
But it's not quite clear the extent to which there's an implication that means a product should be repairable or that it should be possible to repair it. Is that an implied term of merchantable quality?
00:09:01
Anthony Rosborough
We don't have a lot of guidance on this, particularly in Canada. And so there's a need for provinces to fill that void. And we're starting to see some of that activity now. But I think more to the focus of today's talk is the competition law dimension. Which is, obviously, the use or reliance on IP to suppress competition calls into question all kinds of larger competition law market power dynamics that we've seen, at least in Canada, some attention, some attempts to start to crack down on this.
00:09:32
Anthony Rosborough
So generally when we talk about the right to repair, there's these three heads of legislative concern and that's consumer protection, intellectual property and competition or antitrust.
00:09:42
Anthony Rosborough
We could go broader than that, but maybe for today's discussion, we don't have to, but we could go into e-waste processing, solid waste disposal, electronics recycling.
00:09:53
Anthony Rosborough
There's all kinds of other regulatory issues that come up, but I think those are the main ones.
00:09:57
Kevin Hong
And I think this is one of the interesting aspects of policy work in that there are all of these different concerns that are being attempted to be addressed through particular acts or pieces of legislation. As you just alluded to, there are major environmental concerns when it comes to the right to repair. And I believe in budget 2024, where this conversation really started getting going, at least at the federal level here in Canada.
00:10:22
Kevin Hong
The circular economy and environmental concerns were front and center as one of the justifications for these legislative moves.
00:10:30
Anthony Rosborough
Yeah, and I think that mirrors a lot of the policy rationale that we're seeing coming out of the European Union with its European Green Deal and its circular economy directives. So product circularity is a really core impetus or motivation for the right to repair.
00:10:47
Anthony Rosborough
It's important, though, to understand that is a necessary aspect of good right to repair policy, but not sufficient. And what I mean by that is that in certain industries, it's really difficult to make products circular, but yet they still need to be repairable.
00:11:09
Anthony Rosborough
So for example, like home appliances, it might be difficult to make a home appliance circular. And the logic behind efficiency in circularity kind of leads us sometimes to absurd policy solutions that maybe sometimes consumers won't really want. I'll give you an example. If you have a really old refrigerator that is very inefficient and it consumes a lot of electricity.
00:11:37
Anthony Rosborough
The circular economy perspective might say that the solution there is to replace it with a much more efficient, newer refrigerator, which the manufacturer themselves is responsible for maintaining and repairing.
00:11:54
Anthony Rosborough
So in other words, products as a service is sometimes called. In that case, from a repairability perspective, you're sort of ensuring that manufacturers internalize the cost of repair and maintenance as part of selling a product, and the consumers have no involvement or need to worry about it at all. And that doesn't always work in a lot of products and industries. I think in maybe lower value products, that is almost impossible to orchestrate. And so, look, I'm not denigrating or speaking poorly of the circular economy rationale for the right to repair. We've seen enormous policy progress come out of Europe in terms of stipulating standards, particularly for how products of certain categories must be manufactured, like what products should have removable batteries to make it easier for user-replaceable batteries.
00:12:47
Anthony Rosborough
So there's enormous gains to be made by thinking in this way. But the risk is, in some ways, if we go too far in this direction, we actually further empower manufacturers.
00:12:56
Anthony Rosborough
We kind of reinforce the exclusive distribution channels that they rely on, because then they have completely internalized repair in the sense that it becomes necessary to monopolize it further.
00:13:08
Anthony Rosborough
And so I guess in certain product industries, like think of the automotive industry, if we said that all of the big auto manufacturers now must completely internalize the cost of repair so that when you go out and buy a new car, with it comes 10 years of dealer provided maintenance and you don't ever have to worry about it.
00:13:26
Anthony Rosborough
Well, that might sound great to you, and mind you, it would increase substantially the cost of the vehicle when you purchase it, but it would shut out all of the independent garages and mechanics, essentially, from any competition. It would really privilege the manufacturer entirely in that secondary market.
00:13:45
Anthony Rosborough
So I mention this as a word of caution that when we think of appropriate policy solutions, we have to think about all of the implications of what that means, not just environmentally, but socially and economically as well.
00:13:55
Kevin Hong
You raise a good point that we can't just focus, for example, on the circular economy justification, because for example, there are some products which just can't be a part of that.
00:14:10
Kevin Hong
So there seem to me that there are these different aspects which are interrelated beyond just repairability. I've seen discussion of interoperability and durability as well about prolonging the life of a product, without necessarily an associated right to repair.
00:14:26
Kevin Hong
Can you speak a little bit about that?
00:14:27
Anthony Rosborough
Yeah, we often see these discussions side by side in terms of repairability, interoperability, and durability.
00:14:38
Anthony Rosborough
Now, in all cases, our focus is on the product. So that's important. And I think the reason that we have these conversations together is because as I mentioned, the role of software, for example, is so enormous that to talk about a software dependent product being built to be repairable, this almost always implies some degree of interoperability with third party components.
00:15:01
Anthony Rosborough
So you might've heard this term called parts pairing, which is where the replacement parts for a device are all serialized. In other words, they all have an independent software identifier that the onboard computer has to recognize for the device to function. And if any of those parts are replaced, you need special software that would decrypt a certain aspect of the underlying firmware to allow to authenticate that part.
00:15:27
Anthony Rosborough
You can think of this like an extrapolation or a much bigger version of when you buy an unofficial printer ink cartridge for your old bubble jet printer. And it gives you a warning message that says you've purchased inauthentic ink and it won't print. Well, it's the same sort of logic, but scaled up to the level of things like farming combines and medical devices and critical infrastructure, automotive, and so on. It's the same design approach only made on a much bigger scale.
00:15:59
Anthony Rosborough
And so when we have those types of repair restrictions, it's kind of impossible to discuss a technical solution without talking about the interoperability with third-party components, for example, being able to use third-party software. So these discussions are usually lumped together for that reason. But again, when we zero in really closely on the product, the device, then we often in the policy discussion lose focus on the repairer, on the economic participant, the business, the consumer, the people that are involved in repair. And as technical as repair can be sometimes, it is always a human-driven process.
00:16:43
Anthony Rosborough
It's always carried out by an individual or a business. And I think in terms of good policy, we should avoid a sole focus on making the product the subject of regulation, because that tends to distract from, like I said, the social and economic dimensions.
00:17:02
Kevin Hong
And I think this is a good segue into a discussion about the specific legislative initiatives that Canada has taken, both at the federal and provincial level to try to incorporate this right to repair in law.
00:17:13
Kevin Hong
Of most interest to listeners will be the recent amendments to the Competition Act through Bill C-59 in 2024, which amended Section 75 of the Competition Act.
00:17:25
Kevin Hong
And that section deals with refusal to deal. So going to your comments just now, Anthony, it seems to me that that was the approach taken through these amendments, this focus on the people rather than the product.
00:17:38
Kevin Hong
So what these amendments did to Section 75 was to include a reference to means of diagnosis or repair in this provision.
00:17:50
Kevin Hong
So now the tribunal may on application order one or more suppliers of a product, including a means of diagnosis or repair to accept a person as a customer or to make the means of diagnosis or repair available to a person.
00:18:07
Kevin Hong
Given certain legislative conditions are met. But broadly speaking, I think these can be described as situations in which there is harm to competition.
00:18:17
Kevin Hong
But going back to our earlier discussion about the various areas of law which are touched upon by the right to repair, we've also seen other legislative initiatives as well. Around the same time, the Copyright Act was also amended, I believe, by Bill C-244 and C-294 regarding circumvention of these technological protection measures for the purposes of repair.
00:18:40
Kevin Hong
And then at the provincial level, we also saw that Quebec introduced the right to repair and a positive obligation, unlike the Competition Act, on manufacturers or suppliers of products through their Consumer Protection Act. What are your thoughts about these legislative initiatives and in particular the Competition Act amendments?
00:19:01
Anthony Rosborough
Yeah. So I think for anyone listening to your summary, they might think, well, this is really a messy patchwork. You have different policy or different jurisdictions seemingly taking different approaches, and this seems very disharmonized or chaotic.
00:19:17
Anthony Rosborough
But I think it's important to understand, well, first of all, to remind ourselves that we are Canadian and this sort of multi-jurisdictional coordination problem is inevitable. And to some degree, this patchwork of different legislation is a necessity to the way lawmaking works in this country. But I think starting with the comparison of the Copyright Act amendments, so sticking at the federal level, the Copyright Act amendments and the Competition Act amendments, I think that they can be read harmoniously, even though the debate or discussion about them seemed to happen in isolation at the time. But the amendments to the Copyright Act, as I mentioned earlier, made it at least legal to circumvent digital locks for the purposes of repair software restrictions, to be able to crack those for repair purposes.
00:20:08
Anthony Rosborough
But importantly, it's important to know that the legislative history of that bill began with a much broader in scope approach.
00:20:18
Anthony Rosborough
So I don't want to get too technical into the Copyright Act for your listeners, but the anti-circumvention provisions, the digital lock provisions in the Copyright Act, generally restrict three types of activities in relation to cracking software.
00:20:31
Anthony Rosborough
The first is where a private individual like you or I decides to circumvent a digital lock for some reason. The second is in offering services to another person, the primary purposes of which are to crack those digital locks. And then the third is what the act sometimes refers to as trafficking, but dealing, importing, selling, trading in the tools necessary for circumvention.
00:20:59
Anthony Rosborough
Now, the Copyright Act amendment in C-244, when it was first introduced, applied to all three of those restrictions, making it lawful to do any of those acts if the sole purpose was repair, maintenance, or diagnosis.
00:21:18
Anthony Rosborough
Now, the Canada-United States-Mexico Agreement requires, it narrows Canada's legislative freedom to enact exceptions. And through the committee process of Bill C-244, it was narrowed significantly so that it makes it lawful for a private individual like you or I to crack a software lock for repair.
00:21:38
Anthony Rosborough
But it remains at least ambiguous and perhaps likely still unlawful for a business to offer circumvention services to another person. So where you have a repair scenario where software is key for the repair, like for parts pairing like I mentioned earlier.
00:21:56
Anthony Rosborough
The Copyright Act amendments don't really address the kind of commercial, you might say, industrial repair, small business type repair, where that's the whole of the business, right? So the Competition Act amendments are helpful in that they fill that gap to some degree because they target more market-based repair restrictions where, let's say that the software restriction needs a special tool or a special piece of software in order to complete that repair, then I think the expansion of the refusal to deal provision in Section 75 of the Competition Act comes to the rescue here to some degree.
00:22:37
Anthony Rosborough
Now, as you know and your listeners know, bringing a claim under the Competition Act that results in a successful remedy is no easy task. So it's a little bit, in terms of practical enforcement, a bit of a different ballgame than when we're talking about a Copyright Act exception.
00:23:00
Anthony Rosborough
But nevertheless, these two reforms should be read together, part of the same effort. On the other hand, the Competition Act's expansion of the refusal to deal provision goes far beyond digital locks and software. It defines this as the means of diagnosis or repair, which could be all sorts of things. It could be information. It could be tools. It could be replacement parts, all kinds of things.
00:23:24
Anthony Rosborough
Now, the issue though, and as your listeners are probably aware, the Competition Act and the Bureau have issued some guidance in situations where the issue in terms of the tool or whatever's being withheld by the manufacturer is more or less purely an intellectual property right, the issue becomes a bit more messy.
00:23:50
Anthony Rosborough
So there's the intellectual property enforcement guidelines that were put together by the Bureau over the course of several years and amended a few times, but still set this really high standard where it has to be the case that a manufacturer has essentially asserted their intellectual property rights for the sole reason of suppressing repair, which is a very high threshold. So if, for example, the means of diagnosis or repair is asserted by the manufacturer as a trade secret or is protected by patent or some other characterization of this necessary tool for repair as being purely an IP issue, then the practical use of the expansion of the refusal to deal provision might be softened to some degree.
00:24:41
Anthony Rosborough
Anyway, I mean, I trust that your listeners probably will know more about the ins and outs of this than I am able to wade into, but it's just important to know that it's complicated.
00:24:52
Anthony Rosborough
It's messy when the means of diagnosis or repair are intertwined with intellectual property rights.
00:24:57
Kevin Hong
And this touches upon an interesting question regarding valid justifications for withholding the means to repair or to diagnose. So for example, we've seen in the past justifications related to safety, cybersecurity, liability, where we have these product suppliers coming and saying, there's a valid reason why we don't allow our customers to repair their own products because, for example, we're dealing with electronics and opening it up might cause some sort of risk of electrocution, for example, or that it might open us up to liability if any of our customers were to be hurt.
00:25:33
Kevin Hong
We have seen that the US Federal Trade Commission has assessed these claims and found that they weren't necessarily born out. But do you see any validity behind these sorts of restrictions on the right to repair on the basis of things like safety?
00:25:50
Anthony Rosborough
Okay, a few things on this. So you characterize it as a justification. I would characterize this as an excuse.
00:25:59
Anthony Rosborough
And those who are tuned into law would know the difference.
00:26:01
Anthony Rosborough
These are political characterizations of repair. These are not legal arguments. So, okay, let's go with public safety.
00:26:16
Anthony Rosborough
Now, there's tons of products where there have long been very vibrant, active secondary markets for repair and servicing. These are products that have enormous public safety issues that we've never thought twice about, the automotive industry being one of them. Your local mechanic can for the past 70 years has been able to do your brake work, and we didn't really take issue with that. So the notion that manufacturers now all of a sudden need to have full control over their products to ensure everyone's safety, it doesn't really reflect the commercial reality we've lived in for the past century.
00:26:51
Anthony Rosborough
So I would call into question that characterization. Second of all, these excuses are often made in the context of regulation, legislation that has nothing to do with public safety. So we heard these debates, we heard these arguments made in copyright amendment hearings in parliament.
00:27:09
Anthony Rosborough
Manufacturers arguing that the Copyright Act should have exceptions ensuring public safety. And I'm sorry, but anyone who took first year law school or constitutional law knows that the pith and substance of copyright law is not public safety.
00:27:26
Anthony Rosborough
And so we can't substitute competition law or copyright law for product safety regulation. If those are concerns that manufacturers have, then they should bring them up in relation to product safety legislation or regulation and not in relation to the Competition Act or copyright law.
00:27:50
Anthony Rosborough
In terms of cybersecurity and these types of concerns, I think anyone who works in an IT-related field or has some basic understanding of bug detection in computer science would know the old Linux adage, which is that many eyeballs make shallow bugs.
00:28:03
Anthony Rosborough
So the idea that when you allow something to be open and interrogable by more people, you're able to understand. It's essentially an expansion of your R&D process in terms of product safety, that we learn more about how a product works. We devise solutions. We open up actually new markets for peripherals and other add-ons that can make products more useful.
00:28:27
Anthony Rosborough
So, I just don't know that security through obscurity is really what we should be granting manufacturers as being a valid justification for restricting aftermarkets for repair.
00:28:40
Valeska Rebello
So shifting gears a little bit, Anthony, you mentioned our Canadian patchwork.
00:28:48
Valeska Rebello
And I'm just wondering, in comparison to other jurisdictions, you brought up the EU earlier. How does the Canadian approach compare to these other jurisdictions? And maybe to put it more plainly, are other jurisdictions doing it better?
00:29:03
Anthony Rosborough
Well, so every jurisdiction has to approach this for their own political, economic, and industrial reality. And so I think the European Union has been a shining light for finding regulatory solutions that actually make repair a reality in terms of an outcome.
00:29:26
Anthony Rosborough
In terms of enacting very prescriptive, detailed regulation on how certain products should be manufactured, the minimum timelines for providing tools and parts, and maximum costs for certain types of repairs, they've really made a concerted policy effort to build a really detailed and useful policy regime for repair.
00:29:48
Anthony Rosborough
But I think to look at that and say, oh, well, Canada needs to do that or we're so far behind. So first of all, you need to understand that the European Union exists primarily, initially, as a market harmonization body, more so than a federal government.
00:30:06
Anthony Rosborough
And so harmonizing its internal market to create product regulation is its bread and butter. And so it should be no surprise to any of us that they're ahead of Canada. And if we look to the US in terms of its ability to really effectively get manufacturers on board, I mean, iFixit and repair.org in the United States have been enormously successful. US PIRG in getting not only state-level repair bills passed.
00:30:34
Anthony Rosborough
I think all 50 US states have considered or adopted right to repair legislation. So they've been enormously successful. And also getting manufacturers to join their campaigns and support. And I know that various tech companies over the past 10 years in the United States have gotten on board with repair campaigns, either for genuine reasons or disingenuous ones. But again, that is where the center of a lot of tech and industry is based.
00:31:04
Anthony Rosborough
And so their approach to regulation can be a little bit different than Canada. We're a market 10 times smaller than the United States. A lot of the products and devices we rely on are not manufactured here. And so our approach to dealing with this from a policy perspective is going to look a little bit different.
00:31:20
Anthony Rosborough
But where is Canada in this process? I think we're doing pretty well. I know that we get a lot of compliments from folks that I speak to in my right to repair advocacy around the world. I know that our leadership on intellectual property and competition is seen as, wow, a really bold step that we actually did something on this, made it explicit.
00:31:39
Anthony Rosborough
Even if, at this point it does seem like lip service more than effective enforcement, I think that matters.
00:31:47
Anthony Rosborough
I think people have noticed that. In terms of actual policy outcomes, in terms of repairability, I think the hole to be filled is at the provincial level at the moment with Consumer Protection Act reforms that actually guarantee some minimum protections for consumers in terms of repairability. Quebec has led the way with its Bill 29.
00:32:08
Anthony Rosborough
But again, in Quebec, there is more of a culture of intervening in free market situations or the freedom to contract in Quebec culture and its approach to consumer protection has always been a bit more interventionist than the common law provinces. So it should be no surprise to us that Quebec is the first to go and set a very ambitious high watermark.
00:32:30
Anthony Rosborough
Ontario at the moment has an opposition bill that has just been tabled, Bill 91, which reflects the Quebec bill. It's slightly different, but again, sets minimums on manufacturers to provide parts, tools, information, software for a range of product categories, automotive, agricultural, I think some wheelchairs as well.
00:32:51
Anthony Rosborough
So they've really taken a comprehensive look at it there. And who knows if that will pass? I know that an opposition bill often, as they say, doesn't have a snowball's chance in hell. But we'll see. We'll see how successful that is in being adopted. But I think in Canada, we're doing really well. We just need the provinces to catch up.
00:33:11
Anthony Rosborough
And I think there's an opportunity right now in our current political, cultural environment. The conversations we're having federally about building a one Canadian economy focusing on big infrastructure projects, being more resilient. I think there's a real opportunity for the federal government to think about the right to repair from a public procurement, public asset perspective.
00:33:34
Anthony Rosborough
If we're going to be trying to meet our NATO target and spending in the military, then maybe the products that we're buying, maybe the equipment we're buying, repairability should be a factor and that it can be serviced by people here in Canada.
00:33:46
Anthony Rosborough
I mean, if anything is a national security concern, it's buying a fleet of whatever military asset. just use your imagination, that Canadians can't repair or service.
00:33:57
Anthony Rosborough
That certainly is not in our interest.
00:34:00
Anthony Rosborough
So I think there's an opportunity for the right to repair to play a role there that I hope to see more of.
00:34:07
Kevin Hong
And you raised this interesting point about the specific domestic context that right to repair has being brought up in throughout these various jurisdictions. Taking Canada, for example, and going back to your earlier example of home appliances and refrigerators, I was reading a stat earlier that Canada held a negative trade balance of $4.8 billion for household appliances in 2023.
00:34:32
Kevin Hong
So that is going to look very different throughout Canada, the EU, the US, Asian countries, etc. So when we talk about the right to repair and its impact on a country and its economy, we do have to view it in the context of, for example, these trade deficits.
00:34:51
Anthony Rosborough
Yeah, and I am not by nature a person who's overly fond of trade protectionism, but there seems to be a regrettable move in that direction in the last few years.
00:35:00
Anthony Rosborough
And so when we're talking about products that at least are not manufactured in Canada, and often the repair and servicing of a lot of these products, there's more value in it, and it's more locally produced, domestically produced value that we should be trying to capture.
00:35:17
Anthony Rosborough
The automotive industry is a perfect example of this, where in the lifespan of a vehicle, there's probably more value in the repair maintenance than there is in the initial purchase. Now, I don't have stats on that, but it's a product that arguably that is the case.
00:35:31
Anthony Rosborough
And where that is a situation where we really should be pushing for independent and third-party repair because all of that value stays in Canada.
00:35:42
Anthony Rosborough
So I think we can look at it from the perspective of trade deficit, but, overnight, we're not going to be manufacturing washing machines in New Brunswick. It'll take some time for us to increase that type of capacity.
00:35:54
Anthony Rosborough
And so in the meantime, repair, servicing, those industries are always local and they keep money in Canada.
00:36:02
Kevin Hong
So staying on this comparison between what's being done in Canada versus other jurisdictions, one thing we have seen in the US that we have not seen here is an actual case go forward on the right to repair. So I believe it was in 2025, the Federal Trade Commission, along with Illinois and Minnesota brought a complaint against Deere and Company, more commonly known as John Deere, with respect to its unfair practices driving up repair costs for farmers, and also depriving their customers of the ability to make repairs on their farming equipment, such as tractors.
00:36:36
Kevin Hong
I don't believe that case has completed yet and is still before the courts, but from what we've seen so far, is there anything to be gleaned about the actual implementation or enforcement of the right to repair?
00:36:49
Anthony Rosborough
Anything to be gleaned in what way?
00:36:57
Kevin Hong
In terms of, for example, enforcement challenges or challenges that a potential litigant would face.
00:37:00
Anthony Rosborough
In Canada?
00:37:02
Kevin Hong
Yes.
00:37:03
Anthony Rosborough
Yeah, so one of the difficulties here is when you are trying to assert that there's been an anti-competitive act in relation to repair, and particularly a large agricultural equipment manufacturing company like John Deere that has an international presence and exists in markets all over the world, is that a company like this can be very nimble. And so in that FTC case in the United States, if you read the statement of claim, they actually spell out really nicely some of the issues that I had been researching for a long time that they did a great job putting together the whole story.
00:37:40
Anthony Rosborough
Anyway, so John Deere, a suite of its more advanced tractors, uses this tool called Service Advisor. And it's a combination of software and hardware. It looks like a dongle on steroids with some software. And that allows a farmer or independent technician to, once they've replaced something, essentially authenticate the part or to make changes to the onboard software for various reasons.
00:38:03
Anthony Rosborough
And for a long time, John Deere did not release this to anyone other than its authorized technicians. And it faced increased scrutiny, particularly in the Biden administration, to do something about this, to make Service Advisor available.
00:38:15
Anthony Rosborough
So it did. It released a version of Service Advisor that was a dumbed down version that had been gutted of a lot of its functionality. And so it performatively made it more available without actually doing so.
00:38:29
Anthony Rosborough
And the FTC suit highlights this and says, look, you've released a version of Service Advisor, but it's not really up to snuff with what farmers actually need to complete repairs. Anyway, so as you mentioned, the lawsuit has been allowed to proceed. So we'll see what happens there. But the same dynamics can be seen as a risk, as litigation risk, you might say in Canada. In terms of a manufacturer being able to quickly change the kind of water on the beans so as to performatively appear like they're allowing competition, even though in practice they're not.
00:39:05
Anthony Rosborough
So it could be the case that you're planning to bring a potential claim and the manufacturer releases a product apparently and puts it on its website, offers it for sale.
00:39:17
Anthony Rosborough
Although it's impossible to buy, it won't ship. And this is a product that is essentially promised to relieve the repair bottleneck. And it's enough to create some doubt that the manufacturer has not completely shut down competition, which is just enough to take the edge off of the motivation to bring an anti-competition claim.
00:39:40
Anthony Rosborough
So I guess when it comes to what we can draw from this is that the United States FTC lawsuit shows us that manufacturers are willing to pull out all kinds of tactics so as to appear that they're allowing competition. And that creates a real challenge because under the Canadian Competition Act framework, to bring a claim is not something like going to small claims court.
00:40:06
Anthony Rosborough
It's not something you do on a Wednesday afternoon. This takes a lot of time, research, strategy that is tough to convince someone to marshal those resources when a manufacturer can essentially just issue a press release saying, oh, we love the right to repair all of a sudden.
00:40:25
Anthony Rosborough
And that kind of takes the wind out of your sails.
00:40:28
Valeska Rebello
Yeah, and just going off of that and the Competition Act amendments, you mentioned earlier that this does fill the gap of the Copyright Act and targets market based repair restrictions. But what are, in your view, the gaps that still remain and the challenges that we may still face in the Canadian context?
00:40:53
Anthony Rosborough
I really think that there needs to be some more guidance from the Bureau in terms of how claims are intended to be brought, in terms of guidance on what counts as the means of diagnosis or repair, maybe just some commentary guidance on this.
00:41:09
Anthony Rosborough
And how do we deal with how this interacts with assertions of trade secrecy or confidential business information? As I mentioned earlier, the intellectual property enforcement guidelines that the Bureau has released probably need a fresh look if we're going to be making the means of diagnosis and repair subject to a refusal to deal.
00:41:30
Anthony Rosborough
Then I think that to not mention IP creates an elephant in the room that I think we need to address. I also think that now this is less specific to the Competition Act, but particularly when it comes to sectoral hotspots.
00:41:50
Anthony Rosborough
So to some degree, the nature of competition in these markets is all very different. Agricultural equipment is very different than the automotive industry and telematics, which is the interconnectivity, the network dependence of vehicles. That's again, yet another layer that is quite different from agricultural repair.
00:42:08
Anthony Rosborough
And medical devices, which is a subject of my current research, there, maybe you do have a separate body of regulation. You have approval under the Food and Drugs Act and the medical devices regulation, and you've got manufacturers there who are pulling out the same tactics as in other industries.
00:42:29
Anthony Rosborough
And so I think while what's great about the refusal to deal expansion is that it's product and market agnostic, when it comes down to actually implementing solutions beyond bringing litigation, ultimately, you're going to have to look at this from a sector-specific perspective. In some cases, not all cases, but in a lot of cases, you're going to have to give consideration to the specific market dynamics. In some of these industries, they're rich with competition other than repair.
00:42:58
Anthony Rosborough
So you've got an industry where there's seven or eight big players, and it appears to be quite healthy in terms of a competition perspective, but they're all essentially monopolizing repair.
00:43:10
Anthony Rosborough
And so then the market definition problem becomes really paramount because if we're looking at competition in the primary market, well, then there seems to be no problem here because if you don't like what Kia is doing with its restrictions on repair, then just go buy a Ford. But if they're all monopolizing it and essentially shutting it all.
00:43:28
Anthony Rosborough
If they're colluding to suppress competition in all of their own secondary markets, then it doesn't really fit with the model of how we normally think about an anti-competitive act.
00:43:42
Anthony Rosborough
So I think the control that technology now gives manufacturers to suppress repair has enabled some novel forms of anti-competitive conduct that don't really fit the mold for longstanding principles.
00:43:57
Anthony Rosborough
And we might have to think a little bit creatively about this. But that's bold to do in Canada where we are not the biggest fish in the pond.
00:44:07
Kevin Hong
And I think the placement of the right to repair in Section 75, the refusal to deal provision of the Competition Act, is also a particularly interesting choice because by doing so, it imports several requirements which one would not necessarily think are applicable or should be applicable to a right to repair case.
00:44:28
Kevin Hong
So for those of our listeners who are less familiar with Section 75, there are particular requirements which are enumerated in the Competition Act before a case can be successful.
00:44:40
Kevin Hong
So for example, Section 75 is only open to essentially businesses who are substantially affected in whole or in part due to the inability to obtain adequate supplies of the product, product meaning a means of diagnosis or repair. The refusal to deal also must be established as having or is likely to have an adverse effect on competition in the market.
00:45:05
Kevin Hong
So this seems to me to raise several barriers to a successful claim and would result in any sort of litigation under this provision, either by the commissioner or by a private applicant, which we'll get to, being very, very complex.
00:45:21
Anthony Rosborough
Yeah, and again, the issue of defining a market is often very difficult because if there's an alternative to the product, so let's say, let's use the medical device example, and let's say there's a manufacturer of one type of diagnostic imaging equipment that completely suppresses repair through various means, contractual, technical, and so on. If there is an alternative, so in other words, if a health authority could have purchased the same diagnostic equipment from manufacturer B, this might neutralize an otherwise strong claim that there's not a healthy alternative.
00:46:05
Anthony Rosborough
So the notion of lock-in, and I know if there's been discussion about this in the case of digital market reform in the EU and other places, but the notion of network effects and lock-in applies to physical objects as well. And you could characterize the larger right to repair issue when it comes to software-dependent products and devices as being a rematerialization of data into physical things. So all of the competition headaches that come from the role of data in the world are being borne out in physical objects in a way that's truly novel. And so anyway, I guess this takes me back to market definition there because defining what is the market? Is the market for the product?
00:46:50
Anthony Rosborough
In other words, at the time that you purchased it, did you have an alternative that was more repairable that you could have made? Is that the way we're meant to look at this? Or is it once you've purchased the product, now the market you're in is actually for repair and servicing.
00:47:03
Anthony Rosborough
And in that market, there's only one player. Okay, well, that's different. That's a really different way of looking at this problem. And I don't think there's been sufficient guidance on this. And folks who are day in and day out in the competition world may have more insight on this. But my impression is that this is left pretty unclear.
00:47:24
Kevin Hong
So I mentioned earlier the new private access to the tribunal, which was recently expanded again through the recent amendments to the Competition Act.
00:47:34
Kevin Hong
And those provisions allow private applicants to bring their own application to the tribunal before waiting for the commissioner of competition to bring his or her own application.
00:47:46
Kevin Hong
Part of those recent amendments was a new public interest branch, which allowed private access applicants to obtain leave from the tribunal to bring their application if it's in the public interest to do so.
00:48:00
Kevin Hong
So now this opens up the possibility of third party repair services, for example, bringing their own application under these refusal to deal provisions of the Competition Act to enforce the right to repair.
00:48:15
Kevin Hong
What are some of the challenges you see facing these applicants in bringing their own cases?
00:48:20
Anthony Rosborough
Well, I think some of it is just the relative novelty of this approach in Canadian competition law anyway. And my impression in speaking with practitioners in this area is that there's still a bit of head scratching about how you would actually bring a claim forward with this broader scope of potential applicants.
00:48:41
Anthony Rosborough
I think what's great about it is, and now this assumes that some of those uncertainties are weeded out here in the next short while, but I think what's great about it is that a lot of the case in terms of public interest standing, the ills are borne out not by one commercial actor.
00:48:59
Anthony Rosborough
So the anti-competitive effects are not felt necessarily by one independent repair shop, but in aggregate. And therefore a trade association perhaps can bring a claim on their behalf.
00:49:11
Anthony Rosborough
So, if we're sticking with the agricultural example, maybe that would be an organization that represents groups of farmers or repair technicians.
00:49:20
Anthony Rosborough
If that was in the automotive case, maybe it'd be an industry group that represents independent automotive technicians. And so I think in terms of the scope of potential claimants, applicants, I think that would be a very good thing because it's often difficult to show these types of harms being experienced by only one business because repair secondary market servicing is usually made up of many small businesses, right? And so when you have many SMEs, no one of them can really fully claim that they're the victims of this anti-competitive act, it becomes a little bit more of an aggregate problem. And I think that the expanded provision really has the potential to address those types of harms.
00:50:07
Kevin Hong
So now that we've gone over the recent developments in Canada, incorporating the right to repair and some of the recent lessons to be learned from other jurisdictions, what do you see as the next step of evolution of the right to repair in Canada? I know you've spoken about, for example, the provincial sphere and potentially additions or amendments to the Provincial consumer protection acts. Do you see any other further legislative developments on the horizon?
00:50:33
Anthony Rosborough
Well, there's a few that are like, I mentioned the Ontario Consumer Protection Bill 91 that's currently been tabled. I think there's a lot more we're going to see happening just in the next year and a half. Saskatchewan just had a consultation on the right to repair.
00:50:47
Anthony Rosborough
The federal government, so a combination of ISED and I believe Environment and Climate Change Canada, they teamed up and had a consultation back in late 2024, to do with just a federal approach to the right to repair. And their goal was to put together a right to repair strategy, a national one.
00:51:04
Anthony Rosborough
I would like to see more on that. Now that happened and then there was an election and a second Trump presidency and a whole new national conversation that has distracted everyone. But I'm hoping that that will be picked up and dusted off here soon and we can revisit that idea of having a national right to repair strategy in Canada because now, I fully understand the role that the provinces have here, but we really need to be coordinated because we're touching upon something that can really impact trade and commerce within the provinces. And if one province goes too heavy handed here, that could really impact not only their own economic competitiveness within Canada, but it could really disincentivize manufacturers or businesses from wanting to operate in Canada at all. So we need to have clarity for business. And I think a national right to repair strategy is really desperately needed.
00:51:58
Anthony Rosborough
As you mentioned in my introduction that I'm co-founder of the Canadian Repair Coalition, and we've been really knocking on the door of both ISED and ECCC to say, can you please give us an update on what happened with that 2024 consultation? We know that you've been busy with other things, but this is important. And can you give us any information? We're still waiting to hear back.
00:52:19
Anthony Rosborough
So we would love an update. We would love an update on that.
00:52:22
Anthony Rosborough
And I think, yeah, I think a federal strategy is really the next big thing we should be hoping for beyond provincial and territorial legislation.
00:52:31
Kevin Hong
And this is a good reminder, I think, to our listeners, or at least to me, that this issue goes beyond just competition. When we look at the Competition Act, Section 1.1, the purpose of the act, it really is to maintain and promote competition. And Section 75 addresses harms to competition. But that's not the end all and be all, especially when it comes to this issue. And there are many other policy objectives which have to be addressed. So I do like your idea of this national strategy, which is really a broad policy initiative.
00:53:04
Anthony Rosborough
I think competition law has a long history of being enamored with economics and for good reason, obviously we're talking about markets here, but I think the right to repair is a good opportunity for folks who are engaged in competition law thinking and practice to remember that this actually has real human impacts. Whether a market is competitive or not can determine whether a community in Nunavut can access necessary repair tools to keep key infrastructure going. Rich competition in markets can be determinative of whether kids can learn coding and tech skills and learn to interrogate a computer system and develop some critical thinking about technology.
00:53:50
Anthony Rosborough
So there are real human social impacts to repair. Community building, we didn't touch upon this, but repair cafes, which are community organizational events where people can come together and teach each other how to fix things.
00:54:05
Anthony Rosborough
But we can only do that in a product environment, in a market environment, here there is the ability to fix things, where you can access tools and information. And so those real human connections and community bonds come through a market that can offer people alternatives.
00:54:19
Anthony Rosborough
And so, yeah, I just think it's worth reminding folks that as much as graphs and aggregate data in terms of measuring the health of a market is the kind of evidence we need to make good decisions, the impacts of them from a competition law perspective are often borne out on real people and really matter for the humans on the ground.
00:54:40
Valeska Rebello
And just one last takeaway for our listeners today, Anthony. Is there something that you think that competition law practitioners should be watching for over the next few years, like particular sectors, types of conduct that you think warrant close attention, specifically in the competition law context?
00:54:57
Anthony Rosborough
Yeah, so I should say as a disclaimer, I have no knowledge of any pending claims under this expanded provision. But I think that there are strong cases to be made in the automotive, agricultural equipment, and medical devices industries that this provision is engaged, that this expanded provision, there are relevant issues here that should be looked at.
00:55:23
Anthony Rosborough
So in terms of what should practitioners look out for or what should they hope for, my personal view is that the intellectual property enforcement guidelines get a bit of a facelift.
00:55:32
Anthony Rosborough
I think that we need to take some of the fog off the horizon in terms of how a practitioner is meant to actually marshal a claim under the promise of this expanded provision.
00:55:44
Anthony Rosborough
So I think, yeah, if competition law practitioners have any sway in this matter, I would say push the Bureau to give us some more guidance on how we're meant to deal with some of these IP issues, because those are just going to dog us if there isn't some clarity.
00:55:59
Valeska Rebello
Well, Anthony, thank you so much for joining us today. This has really been a very insightful conversation. I've learned a lot. I'm sure Kevin's learned a lot. And it'll definitely help our listeners better understand the right to repair. So thank you again. And thank you, Kevin, for collaborating with us on this episode. And thank you to our listeners for tuning in.
00:56:19
Anthony Rosborough
Thank you.
00:56:20
Kevin Hong
Thanks both.
00:56:21
Thank you for listening. Counterfactual is produced and distributed by the competition law and foreign investment review section at the Canadian Bar Association. The opinions expressed by the participants in this podcast are their own and do not necessarily represent those of their employer or other organizations. If you enjoyed this podcast or would like to join the Canadian Bar Association, please visit www.cba.org/sections/competition-law.