Of Lock-Breaking and Stock Taking: IP, Climate Change and the Right to Repair in Canada

This paper argues that Canadian governments have both legal and moral obligations to act to combat climate change. In seeking to fulfill these obligations, Canadian governments should pay particular attention to Canada’s intellectual property (IP) regime. This paper argues that given the centrality of IP to Canada’s economy, a comprehensive review is required in order to determine whether and the extent to which elements of Canada’s IP regime contribute to climate change or impede climate action. To illustrate the need for such a review, this paper will highlight one example of how Canada’s IP regime, as currently structured, impedes the fight against climate change. Specifically, it will focus on the provisions of Canada’s Copyright Act that provide protection for technological protection measures (TPM). These provisions limit the extent to which consumers can repair software-enabled products that they have purchased. Reform of the TPM provisions in Canada’s Copyright Act is required in order to ensure that they do not act as a barrier to repair. This paper will discuss several options for reform. While a comprehensive review of Canada’s IP laws is necessary in order to identify and amend all provisions that contribute to climate change or that impede climate action, amending the TPM provisions of the Copyright Act to include an exception for the purposes of diagnosis, repair, and maintenance would be an important step in this direction.