4. Waste and the Right to Repair

4.1. The Right to Repair Movement

Electronic waste (‘e-waste’) has become one of the fastest-growing waste streams in the world. Many of our everyday household appliances such as phones, fridges and dishwashers are now embedded with computer software to make them smarter and more convenient. The combination of IPRs that accompany these ‘smart’ goods (whether it be patents over new technologies, trade marks over brands, copyright in embedded computer software or design rights in the product and its spare parts) means that IP owners can unduly restrict the access to and use of smart everyday products which, in turn, creates barriers to keeping those products in use for longer and keeping them out of landfill.

The right to repair movement, which began with right to repair legislation in the automotive industry in the US in 2012, has now gained international support, with numerous regulatory interventions in the US^[1] and EU^[2] to ensure goods, appliances, machinery and cars are able to be kept in use for longer. Right to repair advocates highlight that durable and repairable products have a longer life cycle, which has been identified as being important economically, socially and environmentally.^[3] The right to repair directly tackles overconsumption by promoting the need for more durable designs and product longevity.^[4] Repairability is an important tool to prolong the life of goods, thus directly reducing the number of products going into waste and helping to reduce the greenhouse emissions that would otherwise go into the energy consumption for the creation of a replacement.^[5]

The inability of Australians to repair their smart consumer goods, machinery and vehicles was the subject of a one-year national inquiry by the Australian Government’s Productivity Commission (‘PC’).^[6] Throughout that inquiry, various concerns were raised that IPRs were being used to unnecessarily restrict repairs,^[7] and manufacturers were found to use a range of legal and technological measures to protect their IP in these products from unauthorised use. On 1 December 2021, the Australian Government publicly released the PC’s final report^[8] and made several recommendations as to how repair barriers could be removed to empower Australians to repair faulty goods and access repair services at a competitive price. The following sections examine each of the barriers that IP laws pose to repairability and highlight how a rebalancing of IPRs could address the commitments in SDG 12 to responsible production and consumption.

4.1.1. Copyright Barriers

Australian copyright laws that prevent third-party repairers from accessing repair information were found by the PC to be one of the most significant IP-related barriers to repair.^[9] Two types of repair information are particularly affected: manuals and schematics^[10] and diagnostic and software tools.^[11]

The original information contained in repair manuals is protected by copyright (if the other threshold requirements are met).^[12] This prevents the copying of repair manuals. The PC recommended amendments to the Copyright Act 1968 (Cth) to allow repairers to reproduce and share copyright repair information (such as repair manuals and schematics) without needing to seek permission from the copyright holder under certain circumstances.^[13] These will provide improved access to information, facilitating the repairer to perform product repairs safely and efficiently, reducing additional costs associated with third-party repair (such as product teardowns, reverse engineering, search costs and repair delays).^[14]

Two exceptions were suggested that could be adopted in amending copyright laws, under which the reproduction and sharing of repair manuals can be considered as not infringing the exclusive rights of copyright holders:^[15] either the adoption of a new specific copyright fair dealing exception for repair or the adoption of the broader US-style fair use, which would allow for the sharing of repair information for the purposes of repair. This is not the first time that a ‘fair use’ defence has been suggested for adoption by Australian regulators.^[16] The ‘fair use’ exception and ‘fair dealing’ defence, however, are both exceptions available to copyright law, so action would have to be brought for infringement before any defence could be raised.

For a real rebalancing of copyright law, reform should shift from either limited or broad exceptions to positive user rights. For example, the recent mandatory data-sharing laws in the Australian motor vehicle aftermarket^[17] essentially override the copyright in the diagnostic and repair data of manufacturers for motor vehicle repair.

Copyright’s scheme of technological protection measures (‘TPMs’) were also recognised as creating unnecessary barriers to repair, as they were being used by IP owners to not only ‘lock’ down the digital repair information but also the products and devices themselves, thus preventing access for repair purposes.^[18] As the software embedded in devices and machines is integral to their workings, TPMs or ‘digital locks’ are used to prevent access to not only the copyright over the embedded software but the physical devices themselves. For example, modern cars and tractors only show error codes now if they have a breakdown, and owners are forced to go back to the manufacturers to get access to the diagnostic software, as the digital locks prevent them from defect identification. Accordingly, the PC suggested it was necessary to amend the existing TPM circumvention exception for repair,^[19] not only to clarify its scope and application to permit circumvention to access information necessary to perform repairs but also to permit the distribution of TPM circumvention devices for the purpose of repair. ^[20] This would allow repairers to distribute (and obtain from others) TPM circumvention devices, which will improve third-party repairers’ access to digital repair information (such as diagnostics and product data).^[21]

The fact that copyright law and its scheme of defences and limitations can be ‘contracted out of’ by manufacturer end use licence agreements (‘EULAs’) was also recognised as a barrier to the right to repair. These licences are often used by manufacturers or IP owners to claim trade secret protection (or confidentiality) over their IP (including repair information), as well as containing contractual limitation on the ability to repair the devices or machines. The PC recommended that the Copyright Act should be amended to prohibit the ‘contracting out’ of copyright law exceptions, including those that relate to repair.^[22]

4.1.2. Patents

The PC did not need to make any strong recommendations for reform of patent law, as the uncertainty surrounding repairing patented goods was clarified in 2020 by the important ‘printer cartridge’ decision of the Australian High Court in Calidad Pty Ltd v Seiko Epson Corporation (‘Calidad’).^[23] This case critically addressed whether the patentee could use the patent system to control or limit the future use of the patented product (ie what may be done with a patented product after it has been sold by the patentee) or whether the rights of the patentee continue.^[24] The High Court needed to consider to what extent a patentee can enforce its patent rights against purchasers or subsequent purchasers of its patented products. This required evaluation of two competing doctrines: the longstanding ‘implied licence’ doctrine that has been applied for more than a century; and the ‘exhaustion’ doctrine that has been adopted in other jurisdictions, including the US and the Court of Justice of the European Union.

The High Court of Australia decided that the patentee’s exclusive rights over its patented products were exhausted upon the first sale of the product, bringing Australia in line with the US approach of Impression Prods. v Lexmark Int’l, Inc.^[25] Once a product has been sold to a consumer, this exhausts the patentee’s rights over that product, thus leaving the purchaser and subsequent owners from any obligations as to its use.^[26] The majority held that Calidad’s ‘modified’ printer cartridges did not infringe Seiko’s patents and found that patent owners cannot use the patent system to control or limit what may be done with a patented product after it has been sold by the patent owner, because the patent owner’s rights are ‘exhausted’ upon such sale.^[27] With the adoption of an ‘exhaustion doctrine’, the High Court has brought about a significant change in Australian jurisprudence regarding IPRs for repair and reuse.

4.1.3. Trade Marks

Interestingly, Australian trade mark law was not yet found to have created any real barriers to repairability. However, the PC recognised the importance of trade mark law to Australian consumers, noting that ‘consumers may also benefit from some IP related restrictions (such as trade marks) where it enables them to clearly identify and distinguish brands that have established a reputation (including for safety and quality)’.^[28] Trade marks and a possible repair labelling scheme could play more useful roles in terms of recognising the role repairability and durability can play in empowering consumers to make better purchasing decisions, thus contributing to better environmental outcomes.

4.1.4. Designs Law

Poor product design practices can increase the difficulty of repair. The PC identified stakeholder concerns over products being difficult to take apart or how their design can prevent components from being separated for repair, which can make the repair more time-consuming and labour-intensive, leading to increased cost of repair and more waste.^[29] When products are protected by registered designs, Australian design law has a ‘repair defence’. This defence stipulates that it does not infringe a registered design to use, or authorise another person to use, a product that is a component part of a complex product ‘for the purpose of the repair of the complex product so as to restore its overall appearance in whole or part’.^[30] Importantly, this defence places the onus on a registered design’s owner to prove that parts were being made, supplied or used for non-repair purposes.^[31]

The repair defence in Australian design law received its first judicial consideration in 2019, in the case of GM Global Technology Operations LLC v SSS Auto Parts Pty.^[32] This decision essentially highlighted the complexity and limited scope of operation of the repair defence.^[33] The issue at stake was whether GM Global could prove that the parts in question were produced for purposes other than repairs, such as customisation and enhancement.^[34] SSS Auto Parts succeeded in this case, which demonstrated the difficulty that Australian registered design owners face when bringing an action for infringement involving designs over repair parts due to the heavy onus of proof. They must establish that the manufacturer of the component in question knew (or reasonably should have known) that it would (rather than could) be used for purposes other than repair.

Arguably, this repair defence is a broad mechanism which empowers spare parts manufacturers^[35] and Australian consumers with the ability to ‘repair’ products that are protected by Australian design law. However, despite the reversal of onus, there is no certainty about repairability until an action for infringement is brought, as it is only then that the defence can be relied upon.

In September 2021, IP Australia^[36] progressed a program of reforms in relation to design law in Australia.^[37] This has resulted in a new amendment Act: the Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021 (Cth). Unfortunately for right to repair advocates, there was little attention paid to enhancing consumers’ right to repair with compliance with environmental goals in mind. Despite submissions highlighting the importance of expanding the operation and scope of the existing repair defence within Australian design law, little attention seemed to be paid to the broader environmental goals of repair and reuse — that is, compliance with SDGs 12 and 13 for responsible production and consumption and addressing the impact of climate change.