Cultivating Change

How Canada’s Competition Act Can Address the Use of Technological Protection Measures in Agriculture

Abstract

Since the late 1990s, large, multinational “full-line” manufacturers of agricultural tractors and combine harvesters have worked collaboratively with smaller, independent “short-line” manufacturers of accessory equipment to ensure the compatibility and interoperability of their products. This longstanding co-operative tradition served both manufacturers and their customers, which could build out their operations with the equipment of their choice, based on their own personal preferences, or unique priorities – budget limitations, topographical considerations, crop-specific needs, uncommon soil characteristics, etc. – confident that, regardless of the manufacturer, their new equipment would operate with their other machinery. However, as agricultural practice has continued to evolve towards “smart farming”, full-line manufacturers have increasingly employed “technological protection measures” to prevent unauthorized access to the on-board data, computer programs, and operating systems of their tractors and combines. The inability of short-line equipment to access the digital data and systems of tractors and combines renders their equipment unusable, and thus their business non-viable. The effectiveness of “technological protection measures” in Canada is due, in part, to the statutory protection afforded them under the anti-circumvention provisions of the Copyright Act (Canada). It is perhaps unsurprising therefore, that politicians, legal scholars, and practitioners have assumed an effective regulatory response to the issue would be best achieved via amendments to Canadian copyright law. This paper takes a different position, arguing that responses based on copyright law will not adequately address the challenges of short-line manufacturers, and proposing the use of competition law to respond to conduct which amounts to an effort by full-line manufacturers to restrict or prohibit competition via exclusive dealing, tied selling and an abuse of dominance which results in the substantial lessening or prevention of competition. The affording of relief to Canada’s short-line manufacturing sector flows from competition law, not copyright law, and through the commencement of applications to the Competition Tribunal, such relief can ultimately be provided.