With this post by Stephen Wyber from Knowledge Rights 21 we begin to bring visibility to the various ways in which copyright and software are increasingly used as a threat to our Right to Repair.
Much work around the right to repair so far has focused on the physical – the way products are put together, the availability of spare parts, or access to tools to fix our devices.
However, at a time when almost everything we buy is getting ‘smarter’, it’s increasingly indispensable to think about the intangible elements of our devices, from eReaders to tractors.
Software and repair information can be essential for making things ‘tick’, or bringing them back to life when they stop working. Yet they are covered by rules that can give their creators extensive and long-lasting powers that can pose challenges to those who want to repair, tinker, modify, and improve.
Here we explore how software and copyright rules are essential in guaranteeing Europeans a comprehensive right to repair.
We need software to run our devices, including carrying out necessary updates, but it can also be a source of problems when it comes to product longevity.
Taking a copy of software in order to evaluate and test it (or indeed to test a product as a whole), modifying it, selling it on when reselling a product, sharing excerpts in order to help others learn how to repair their devices are all activities that are potentially covered by rights and so require either exceptions or permissions to take place. Ignoring these can create liabilities.
A further issue is the possibility to access software in the first place, in order to diagnose problems. Yet not only is this often prevented by digital locks (which can also prevent a host of other activities), but these locks themselves enjoy legal protection. Breaking or circumventing them can come with severe penalties (for example, under French law, 30 000 EUR or six months of prison) – enough to scare off most amateur or smaller repair operations.
Finally, there is the question of access to repair manuals produced by manufacturers, and which otherwise may be restricted only to ‘authorised’ repairers, with copyright used as the legal cover for controlling distribution in this way. For example, copyright was cited in efforts by manufacturers of medical devices to take down their manuals from iFixit’s website in order to help medical professionals during the pandemic.
The situation today
The good news is that legislators have been aware of the importance of repair for years, and even decades. The EU’s Computer Programmes Directive (2009/24/EC) is based on a 1991 original (updated in 2009), and underlines the possibility to make corrections to errors in software.
However, in its articles, it explicitly suggests that this only applies in the absence of specific contractual provisions, and arguably does not cover possibilities for modification, upgrading or other activities involving software that would typically be understood by consumer groups. At least one Member State – Ireland – nonetheless has a blanket provision which protects exceptions (such as that for repair) from contract terms (Copyright and Related Rights Act 2000, as amended, Section 2(10)).
Furthermore, the Directive prohibits the circulation of tools for breaking digital locks, or even their possession for commercial means, effectively shutting down possibilities for independent repairers. Even where breaking locks may be legally possible, few countries have mechanisms for enabling them to be broken.
There’s also a mention of repair in the 2001 InfoSoc Directive (2001/29/EC), but again this is only an optional exception, which has been implemented in very different ways across Member States, and without guarantees that this possibility cannot be taken away by contract terms.
Finally, the relatively low bar for being able to claim copyright protection means that repair manuals, despite their primarily technical nature, will generally fall under these rules. A key exception to this is the existing ecodesign legislation on white goods and TVs, which requires manufacturers to give independent repairers access to repair manuals. Widening the scope of this legislation to other product groups would be a breakthrough for repairers, and help them overcome the issue of copyright preventing them from carrying out repairs.
In short, it’s clear that in Europe, the possibility to repair software, use it in the process of repair, or access repair information remains less a consumers’ right than a manufacturers’ gift, that they may or may not choose to offer.
Inspiration from elsewhere
Other countries have taken more proactive stances, without necessarily offering a perfect solution. For example, the Japanese copyright code (Section 30-4) not only includes a right to repair, but also has clearer rules allowing the circumvention of digital locks, and may also provide protection against contract terms that take away consumer rights.
In the United States too, there are better established, if limited, provisions around repair, and while contract terms may still stand in the way of repair rights, there is now a clear exemption to rules against the removal or blocking of digital locks.
In short, it is not only possible, but also necessary to address situations where the design of rules around copyright and software leads to the inadvertent consequence of limiting rights to repair. Action in these areas – protection against override by contract terms, possibilities to remove or circumvent digital locks, and reasonable access to repair manuals – deserve to have their place in any future legislation in this field.