If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework

Author: Anthony Rosborough

Abstract: This analysis examines the legal implications of technological protection measures (“TPMs”) under Canada’s Copyright Act. Through embedded computing systems and proprietary interfaces, TPMs are being used by original equipment manufacturers (“OEMs”) of agricultural equipment to preclude reverse engineering and follow-on innovation. This has anti-competitive effects on Canada’s “shortline” agricultural equipment industry, which produces add-on or peripheral equipment used with OEM machinery. This requires interoperability between the interfaces, data formats, and physical connectors, which are often the subject of TPM control. Exceptions under the Act have provided little assistance to the shortline industry.

The research question posed by this analysis is: how does the Canadian Copyright Act’s protection for TPMs and its interoperability exception impact follow-on innovation in secondary markets?

Canada’s protection for TPMs and its interoperability exception is inadequate for protecting follow-on innovation in relation to computerised machinery and embedded systems. This is due to the Act’s broad protection for TPMs, yet limited conceptualisation of interoperability as a process that exists only between two “computer programs”. In legally protecting TPMs which safeguard uncopyrightable processes, data formats and interfaces, the Act’s interoperability exception fails to address the need to access subjects of TPM protection that extend beyond computer programs. This results in an asymmetry of protection and renders the interoperability exception inadequate.

The article proposes enacting regulations under the Act to provide new exceptions and limitations to TPM protections which would enable shortline innovation. Both the Copyright Act and the Canada-United States-Mexico Agreement envision such additional TPM exceptions where the effect of protection has adverse effects on competition in a secondary market. In exploring a path forward for Canada’s shortline industry, the article then examines approaches taken in the United States and France to illustrate potential avenues for TPM regulation in Canada.

Citation: Rosborough, Anthony, If a Machine Could Talk, We Would Not Understand It: Canadian Innovation and the Copyright Act’s TPM Interoperability Framework (April 23, 2021). (2021) 19 J L & Tech [Forthcoming]., Available at SSRN: https://ssrn.com/abstract=3848830