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How Copyright TPMs Undermine Efforts at Cultivating a More Sustainable Economy

Tiphaera Ziner Cohen, Windsor Law Student (JD 2023)

‘Smart products’, i.e., products with some form of digital connectivity integrated into the physical hardware, have transformed our understanding of tangible goods. Historically, a purchase was characterized as a single transaction – upon payment, ownership of a good transferred to the purchaser and the product could be used in whatever manner the owner saw fit. Increasingly however, our purchases involve ongoing services that are characterized by highly adaptable software. So long as there is some form of digital connectivity, the seller or manufacturer often retains some form of ownership over the good (or embedded software). Utilizing a suite of legal tools, sellers and manufacturers are able to continuously exert some form of control over these sui generis products long after the purchaser has taken them home.

One such tool that has been coopted to constrain users’ ability to fully engage with their own property is, surprisingly, copyright. Traditionally reserved for original creative output, copyright protection is being extended to goods where a copyright work embodied in the good is an additional function to, rather than the essential purpose of, that item. The extension of copyright to tangible goods not traditionally attracting such protection has given copyright holders’ incredible power over users’ ability to engage with their own property. Users are prevented from engaging in any independent repair or add-on innovation for these goods. This in turn hinders an extended lifespan or alternative uses for a good before it is ultimately disposed

of. Resultingly, this expanded scope of copyright protection is not only undermining efforts to cultivate a more sustainable economy but is actively contributing to environmental harm by incentivizing a ‘throw away and buy new’ culture.

This paper was written for Windsor Law Professor Pascale Chapdelaine’s Copyright Law course in the Winter 2023 term. This paper investigates how the use of Technological Protection Measures (“TPMs”) has come to undermine the cultivation of a circular economic model. To do so, this paper examines the evolving tension between copyright holder and user rights in copyright and how the implementation of digital locks has reoriented this relationship. Examining Canada’s short-line agricultural industry to demonstrate how the current legislative scheme for TPMs hamstrings circularity, the paper then turns to a discussion on how this scheme should be adapted to account for environmental considerations. Specifically, this paper analyses the feasibility of integrating specific user exceptions, such as the right to repair and interoperability, into the current legislative scheme. It also notes the potential for specific regulations to be adopted under the Copyright Act to limit the scope of protection for certain TPMs.


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