Achieving a (copy)right to repair for the EU’s green economy

Abstract

Anthony Rosborough is a doctoral researcher in Law at the European University Institute in Florence, Italy. Leanne Wiseman is an Australian Research Council Future Fellow and Professor in Law at Griffith Unviersity, Brisbane Australia and is Associate Director of Australian Centre for Intellectual Property in Agriculture (ACIPA). Taina Pihlajarinne is a Professor of Copyright Law (Docent of Commercial Law) at the University of Helsinki. The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented. This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and by prohibiting circumvention of technological protection measures in software-enabled devices. In surveying proposed IP Right to Repair reforms in Australia and Canada, the article calls upon EU legislators to consider more strongly the role of IP laws in preventing repair. Moving beyond the enactment of new exceptions and limitations, the article proposes that EU legislators conceptualize the Right to Repair as a positive user’s right. Considering the social, economic and ecological benefits of increased access to repair, the authors contend that this requires exempting the application of exclusive rights where they impede repair activities, obligating rightsholders to provide access to repair information and software and stronger assurances to users and independent repairers through ex ante exceptions. Manufacturers of various products and devices are increasingly incorporating computer programs in their design. Seemingly every object in today’s world—from home appliances to insulin pumps to agricultural machinery—relies on embedded system design and software integration. This crucial role played by computerization in modern manufacturing is evidenced by a global semiconductor shortage,1 resulting in supply chain constraints and looming global macroeconomic woes. While these technological advances have often provided efficiency gains and ease of use for end users, they have also granted manufacturers unprecedented control over how and by whom those products and devices are used, maintained and repaired. Although the public interest may support repairing and maintaining such devices,2 the profit incentive of manufacturers often operates in a different direction. The increasing sophistication of today’s devices and products has also made access to diagnostic and maintenance information even more essential for repair, creating further incentive for manufacturers to keep a tight grip on it. Even where onboard software and technical restrictions permit independent repair and maintenance, the inability to access repair and diagnostic information means that many products and devices are abandoned prematurely, leading to a burgeoning pile of electronic waste—the fastest growing solid waste stream globally.3 In this article, we contend that the key barriers to extending product lifespan through repair are the exclusive rights afforded by IP and particularly copyright. While product design regulations and waste disposal regulations are important remedies to the problem, we contend that the source of many impediments to repairability is in fact restrictions enabled by IP laws. For this reason, our overarching claim is that IP (and copyright in particular) ought to play a stronger role in the policy reform efforts towards the Right to Repair in the European Union (EU). Two aspects of copyright law form the focus of our analysis: (i) the subsistence of exclusive rights in repair manuals and related documentation and (ii) software technological protection measures (TPMs) or ‘digital locks’. We begin with a brief overview of the Right to Repair movement, its normative ideals and its connection to copyright law. We then conduct a brief analysis of the EU’s current policy reform efforts towards the Right to Repair, including current measures under the EcoDesign Directive4 and proposals for future legislation. While these efforts show a strong emphasis on enhancing manufacturers’ responsibility and empowering consumers, our call for a greater emphasis on the role that a copyright regulatory response can play is supported by a comparative analysis of Right to Repair policy reforms underway in Australia and Canada. In contrast to the EU’s consumer- and market-oriented approach, these jurisdictions evoke a copyright-focused approach to the Right to Repair. Finally, we put forward recommendations for centring copyright as a key policy reform area in the efforts towards a European Right to Repair. The aim of this paper is to examine the role that EU copyright laws play in creating barriers to repairability and in how it can be reshaped, or opened, to empower independent repairers and provide wider access to repair and service information. In calling for a ‘(copy)right to repair’ in the EU, we acknowledge that there remains significant debate concerning the nature of EU copyright exceptions and, particularly, whether they can be characterized as full-fledged user rights.5 It is far beyond the scope of this analysis to wade into this larger debate. Rather, our focus is much more pointed. Our view is that the EU’s Right to Repair ambitions in pursuit of a circular economy can only be meaningfully achieved if copyright reform (including the expansive interpretation of existing exceptions) becomes part of the EU’s legislative agenda. An active global Right to Repair movement is currently the impetus for legislative and policy reform initiatives around the world. This movement has been motivated by several end goals. For one, repair increases consumer choice, reduces costs and encourages market competition for independent repair services. Second, repair aligns with sustainability goals in extending product lifespan and reducing premature obsolescence and abandonment of various products and devices.6 Finally, repair strengthens communities by encouraging knowledge sharing and new discoveries and facilitating innovative processes. In terms of legal and policy outcomes, the Right to Repair movement seeks to rebalance the relationship between manufacturers and end users of the products. It calls upon manufacturers to make parts, tools, information and software more readily available to independent repairers and everyday people, well beyond the exclusivity of ‘authorized technicians’. When transposed as specific legal and policy reforms, the outcomes sought by the Right to Repair movement require revision to consumer laws, competition rules, IP and environmental laws.7 Many countries and jurisdictions around the world have started to take steps in one or more of these directions, with a range of rationales and priorities. Of these three policy areas, countries around the world have shown the least progress in adjusting competition policy to be more favourable to repair. One potential reason for this is that special status is often given to IP rights when measuring abuses of dominance and unfair market practices.8 Although the essential facilities doctrine may suggest an avenue forward for more robust competition regulation, its application to secondary markets is not always clear cut.9 At the same time, public awareness of repair restrictions has enticed some manufacturers to make their own commitments to greater repairability. For example, electronics giant Apple created its own Self Service Repair Program10 in 2021, and others have followed suit.11 Although these industry commitments show some reason for optimism, Right to Repair advocates around the world remain steadfast in their efforts to ensure that repairability is not merely the subject of manufacturers’ charity12 but also backed by legislative and regulatory guarantees. At first glance, copyright law may seem like an unusual focus for Right to Repair reforms. Focused on cultural, literary and artistic works, copyright policy reforms are ordinarily situated within the context of broadcast, print and creative media and related entertainment industries. And the lengthy process leading to the EU’s Digital Single Market Directive’s enactment would confirm this understanding of EU copyright law’s priorities. But upon closer interrogation, copyright touches upon repair in several important ways.13 For one, repair manuals, instructions and guides are often protected by copyright. Although these works often comprised largely unprotectable facts, processes and data, their compilation, arrangement and accompanying photographs are often sufficiently original to attract exclusive rights in their entirety.14 Repair manuals and information are rarely produced as commercial works in and of themselves, yet copyright’s exclusive rights can provide manufacturers with the legal means to curtail their distribution, availability and communication online. The second way in which copyright touches upon repair is through its protection for software, which is embedded into smart devices and products. This software is often accompanied by TPMs, which control access and modification to onboard software, firmware and settings. Computer software is protected as a literary work under copyright,15 and therefore the technical restrictions deployed by manufacturers in preventing access to software receives an additional layer of protection through TPM anti-circumvention laws. Legal protection for these techniques were originally envisioned as copy control technologies used to protect music and other creative works dating back to the 1990s,16 but they apply equally to software in onboard computers in a whole host of different devices and products. Many repairs of computerized devices require authorization controlled by onboard software, including activating replacement parts,17 resetting devices to factory settings and accessing diagnostic information. These activities can be made extraordinarily difficult (if not impossible) by manufacturers who incorporate TPMs into restrictive product and device design. The Right to Repair in the EU has adopted a distinctly consumer-oriented approach to policy reform, rooted in circular economy and sustainability goals, with a view to lessen the ecological toll of premature product obsolescence.18 Although the European Parliament has been supportive of improving access to repair for many years, the first major policy development came as part of the 2019 Implementing Regulations under the EcoDesign Directive.19 These regulations mandate manufacturers of certain products to provide access to parts, tools and information for a certain period after their manufacture and sale within the EU.20 The EcoDesign regulations, however, omit any mention of IP rights or TPMs. Instead, they leave manufacturers with considerable discretion as to the cost, access and availability of parts, tools and information and restrict the beneficiaries of these resources to ‘commercial repairers’.21 The 2019 EcoDesign Repairability Requirements coincided with the European Green Deal, a set of policy priorities set by the European Commission with the ultimate goal of making the EU climate neutral by the year 2050.22 The Circular Economy Action Plan (‘CEAP’) is a key pillar of the European Green Deal, which conceptualizes the Right to Repair as primarily a suite of consumer rights in relation to warranties, product guarantees and repairability information displayed at the time of sale.23 Save for a passing reference to allowing for updates of obsolete software and the need for IP rights that ‘enable the green transition through innovation and digitalisation’,24 the CEAP largely ignores the role of IP rights in creating direct obstacles to repairability. As part of the 2021 State of the EU, the Commission announced that the European Green Deal is the impetus for a forthcoming comprehensive legislative proposal on the Right to Repair, targeted for release during the third quarter of 2022. To date, the Commission has not followed through on this commitment. This delay appears to be the result of resistance from the EU’s Regulatory Scrutiny Board, an untransparent and independent body within the European Commission that has a reputation of being guided by lobbying pressure from private industry.25 And in any event, the Commission’s call for evidence makes clear that the pending Right to Repair proposal will be situated as an amendment to the Sale of Goods Directive.26 This means that forthcoming Right to Repair reforms will be centred around product manufacturing standards and imposing extended obligations on manufacturers to repair faulty products. This is a far cry from providing individuals and independent repairers with the legal means to lawfully access parts, tools and information necessary for repair. Beyond targeted reforms to industrial design protections allowing production of replacement parts,27 it seems unlikely that IP or copyright amendments will form part of the EU’s larger Right to Repair legislative proposals. As a global movement, the Right to Repair has found resonance around the world. Given distinct legal traditions, regulatory frameworks and political economy dynamics, these reforms have sought to open repair through distinct legal and policy reform channels. In the following, we canvass recent policy reform efforts in Australia and Canada, which together evidence a Right to Repair approach that has recognized the role and importance of copyright reform. We believe that Australia and Canada are useful comparator jurisdictions to the EU due to their of use or open system of copyright EU copyright laws, Australia and Canada on of exceptions within the EU, these jurisdictions also TPM anti-circumvention by to the for TPM circumvention in the EU and Computer Australia and Canada not have the to like those provided by the of under the Digital Copyright The of repair and service information sharing by original manufacturers and the competition from the in have the of the and Commission for over a An market of the new industry in on the and consumer and competition a manufacturers to with independent the information they need to modern on from in the Australian to first to a law to ensure independent repairers have access to service and repair information at a The the and Service and Repair for public in which followed regulatory and interest in the Right to Repair movement by the Australian In Australian Commission the economic to conduct a into barriers to repair in While a of key significant and barriers to repair were several were to to independent repairers greater access to repair and competition for repair public or the Commission’s the that IP in copyright one of the more significant and barriers to repair that are being in One key that the Australian Copyright Law amendment to the accessing and sharing of repair information repair manuals and repair new which would repair activities to be embedded in the copyright It remains to be whether the will this a specific for the and sharing of information for the of repair new or a copyright use there appears to be strong policy support for the of copyright to repair. To the importance of being to upon a repair the the need for Australian legislators to the or of is a often through the use of repair restrictions in end use The role that TPMs play in creating barriers to accessing repair information also as significant by the To access to diagnostic information and embedded software, amendments to TPM were the existing TPM circumvention for be to its scope and application to around when it is to to access repair information and to permit circumvention in to access information necessary to repairs to the product in which the TPM is Second, to be for the of facilitating a of circumvention in the the of TPM circumvention devices be While the reforms to copyright and TPM currently remain as recommendations the it is important to that first Right to Repair the and Service and Repair 2021, came into on this by the sharing of service and repair information in the access to service and repair information over the manufacturers’ copyright in that information. the on copyright to information this with for the to of to under the efforts towards Right to Repair in on the and access to These efforts the of IP laws and the need to curtail IP imposing positive obligations on manufacturers to a of the Right to Repair a for policy reform as part of the 2019 of the Copyright In a a proposed that the of Canada of technological protection measures within copyright to the maintenance, repair or of a device for In 2021, in Canada to the 2019 In its and the various of TPMs on repair activities and proposed new targeted exceptions to repair or regulations certain of TPMs from Although the has not yet TPM regulations, private have been in the Parliament to new exceptions for and These are with the mandate by the in 2021, which upon the of to the Right to Repair by manufacturers to supply repair manuals and and to the Copyright to for the repair of devices and IP and copyright law reform are not the only in which Canada has towards the Right to Repair. protection and waste disposal regulations are also being in various the approach to the Right to Repair on in the repair context from the scope of IP rights regulations, the approach has for the source of many repairability restrictions first and The EU copyright is and regulations and is by several other EU Although EU copyright law has followed a for market efficiency the and of EU copyright law can be by into in the and the a clear to a of rights and between the different of rightsholders and users of protected This in relation to repairability is also by such as of the on the of the European Union which requires that environmental protection are in to the and of EU and activities with a view to is at of the EU’s of there is legal and normative for that EU copyright law repair activities and user rights that further the public To the of the EcoDesign Directive’s 2019 Implementing EU copyright policy provide and repairers with the means to lawfully access repair and maintenance information. The a for in connection with the repair or of The of this repair has been by the of of the European Union and its by significant and in its into Our is that the repair be in with the development mandate of and and interpretation as the of repair activities and access to In to connection repair, the has the potential to be to a whole host of activities in relation to repair, which resistance from copyright As evidenced by the to repair efforts underway in Australia and Canada, TPM policy a significant role in repairability in the of software-enabled devices and products. TPM policy in the EU is by the fact that it distinct and and the Computer This the of repair activities TPM circumvention for several it means that the for circumvention of TPMs are subject to distinct frameworks of exceptions on whether they protect computer programs or some other of copyright The result is that a first the subject of protection being to which of exceptions Second, the of circumvention activities between these the the circumvention of TPMs and the or sale of tools or devices used to the Computer only of circumvention devices. The is to a legal between of TPMs and the exceptions that apply to where there may not be any Given the of works such as and it is often the that TPMs restrict access to computer programs in with other the of this is in the to or the tools for circumvention is essential to the Right to t

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