Right to Repair and Intellectual Property

By Enrico Bonadio (City, University of London) – Tanvi Agarwal (West Bengal National University of Juridical Sciences)

The ‘right to repair’ movement is currently gaining momentum, as also confirmed by a directive recently approved by the European Council. Broadly speaking, such a right aims at giving consumers the liberty to enjoy products efficiently for a longer period of time. Every product has indeed a period for which it functions effectively, beyond which it starts becoming obsolete. Here, the divide in the ideology between the manufacturers and the consumers becomes stark.

Manufacturers of products such as consumers’ electronics (e.g. smartphones) often, either directly or indirectly, tend to prevent consumers from repairing or modifying these products on their own. They may deploy strategies like restricting access to the information available to the public regarding the basic blueprint or manuals of the product along with denying access to necessary instruments, tools of repair and essential elements of the product.

But consumers often want the right and freedom to modify and repair these products on their own without which they are forced to endure expenses in buying a new product. While this debate is burgeoning advocating for a change in legislation to allow this right to be made available for consumers, the manufacturers are rigorously trying to stall the process by claiming how the ‘right to repair’ impinges on their intellectual property (IP) rights.

Indeed, such IP rights, especially copyright, can be invoked to control who can repair these goods. For examples, complex products such as those within the information and communication technology sector often incorporate software or other technological device which are protected by IP rights. And pieces of legislation like the US Digital Millennium Copyright Act (DMCA) and the EU Info-Society Directive explicitly prohibit the circumvention of technological protection measures embedded into such copyright-protected products. These rules can be enforced against third parties who are involved in repairing services.

Proponents of the right to repair have argued that the current practices undertaken by the manufacturers may be anti-competitive in several jurisdictions. This right is thus considered essential for promoting consumer autonomy and breaking up monopoly of businesses on the after-sales service industry. Allowing customers to select where and how to fix their own items would encourage competition, which – the argument goes – leads to lower prices and higher-quality services. Such a right would also be compliant with the doctrine of exhaustion of IP rights, which strongly restricts the ability of IP owners to control the reuse of IP-protected goods after their first sale in the relevant market.

It is believed this empowerment has wider economic ramifications in addition to personal gains. When consumers have the freedom to fix, independent repair shops—which are frequently tiny local businesses—succeed, generating jobs and bolstering local economies. Additionally, this right would help reduce the environmental ramifications of the current ‘throw-away’ culture propagated by manufacturers. As we battle e-waste and environmental damage, we may drastically cut down on the amount of wasted devices if we encourage repairs rather than replacements. This change can lessen the negative effects that e-waste has on ecosystems and public health because a lot of abandoned gadgets include hazardous elements that can contaminate land and water.

Repairing rather than replacing would also fit with sustainable consumption patterns, promoting a more circular economy in which resources and products are recycled and reused rather than thrown away. From the perspective of IP rights, as customers and independent technicians discover new techniques and ways to mend complicated devices, the freedom offered by a right to repair would also serve as a catalyst for innovation and education. And this kind of low-level inventiveness may result in enhancements and adjustments that original producers may not have thought of.

Nonetheless, a lot of manufacturers oppose the ability to fix things, claiming security, safety, and the need to adequately protect IP rights. They contend that permitting repairs by third parties could result in shoddy work, jeopardising the product’s functionality and safety. These worries are certainly legitimate, although it has also been noted that they may sometimes act as a cover for holding onto power in the lucrative repair industry.

These issues may be resolved by reasonable regulation and certification of independent repair services, guaranteeing the efficacy and safety of repairs without restricting the ability to make them. Lastly, at the centre of these arguments for the right to repair lies the want of the consumers to exercise dominion over the things they have bought.

As mentioned, in contrast to this, are the arguments put forth by manufacturers which stem from concerns pertaining to their investment in IP, safety, cybersecurity and consumers’ privacy. The possible risk to product safety is one of the main arguments used by manufacturers. There is a risk of incorrect handling when repairs are performed by customers or independent technicians, who might not have the same specialised training and expertise as the authorised service providers of the manufacturers. This may result in defective products, which could seriously endanger users’ safety.

Further to these claims, some manufacturers assert that buyers only obtain a licence to use the products from the producer upon purchase, not the true ownership of the goods. Many manufacturers, particularly in the technology and agricultural sectors, demand that buyers sign restrictive agreements or terms of service that prohibit using unapproved third-party software or hardware with their devices, prohibit the resale of used devices, and limit what the buyer can do after the device is purchased.

The introduction of a right to repair would therefore damage the software markets, i.e. mobile apps, enterprise software, and firmware, and have also a detrimental effect on consumers in the long run.

It will be interesting to follow this debate, going forward. There are already legislative moves in several countries towards the introduction of the right to repair (not only, as we have seen, in the EU but also in the US at state level). Yet, these moves do not envisage a limitation of IP rights as strong protection of intangible assets is considered necessary to incentivise and safeguard investments in R&D-intensive activities. Thus, while such moves could be justified based on environmental protection as well as the need to promote competition and consumers’ welfare, IP rights of manufactures should also be adequately taken into account by policymakers. Time will tell if and how such balance will be eventually reached.