Prajnaa Bangalore Mahaveer Jain, LTEC Lab Research Assistant
March 31, 2023
On March 9, 2023, the Windsor Law community gathered at LTEC Lab’s seminar: The Intellectual Property Implications of the Right to Repair. The seminar furthered LTEC Lab’s goal of facilitating meaningful discussions about the significant, everyday impacts of law and technology. Students came to the seminar with smartphones in their pockets and laptops in their backpacks–technologies that are implicated in the right to repair debate.
LTEC Lab welcomed guest speaker Aaron Perzanowski, the Inaugural Thomas W. Lacchia Professor of Law at the University of Michigan Law School, followed by a commentary by Anthony Rosborough, an intellectual property lawyer and researcher at the European University Institute. Professor Perzanowski researches the idea of ownership in the digital economy, specializing in the intersections between intellectual and personal property law. His discussion focused on the definition of the right to repair, the right to repair as a tool for sustainability, and the legal conflicts between consumers and technology companies. Professor Perzanowski’s research culminated in his new book, The Right to Repair: Reclaiming the Things We Own. Afterwards, Rosborough provided the Canadian context to this discussion in terms of current legislation in provincial and the federal governments, and Canadian consumer trends.
What is the Right to Repair?
Professor Perzanowski started the seminar stating that the right to repair governs over who, consumers and other users, or suppliers, has the legal ability to fix and repair electronics. A basic assumption would be that consumers, who bought the electronics, have ownership of their property and are able to fix and use their smartphones, laptops, etc. as they see fit. However, suppliers have intellectual property rights that protect the embedded software, the design, the technical specifications to the products they sell. Suppliers argue only them, or those affiliated with them, have the ability to fix and repair technologies. The legal interests over the consumer’s and other users’ personal property conflict with the intellectual property of suppliers.
An easy example of this is Apple’s Genius Bar. Apple has lobbied against third-party fixes, rather acting in favour of regulating the ecosystem of Apple electronics’ repair through Apple Authorized Service Providers and Self-Service Repair. Apple aims to repair all Apple electronics through means affiliated with them. In April 2022, Granato et al v. Apple Inc., a class-action lawsuit over the right to repair Apple electronics, was filed in the US.
Right to Repair for Sustainability
“What’s the point of being the biggest corporation on an uninhabitable planet?” – Professor Perzanowski
In 2019 alone, 54 million metric tons of e-waste was generated worldwide (Statista). The disposal of that e-waste introduces toxins and plastics into the environment. The creation of new electronics also requires environmentally-intensive extractive industries to mine for precious minerals, a finite resource. Professor Perzanowski argues that the right to repair can decrease the environmental impact of the electronics industry by increasing the longevity of the electronics and decreasing the demand for environmental resources. Consumers should also favour repair since it can be more cost-effective than buying new electronics.
Professor Perzanowski does note that suppliers are becoming more mindful to increase the longevity of their electronics. Nokia has introduced iFixit–a directory of tools, parts, and instructions that can be used to repair the Nokia G22 phone. Apple has also claimed that the iPhone 14 is “much more repairable” than previous editions. However, the tendency for suppliers to continuously introduce new editions of electronics year after year undermines the value of repair and reinforces planned obsolescence. Planned obsolescence can occur as technological advances outdate the electronic device that a consumer previously used.
How does Copyright fit into this discussion?
Ownership of a good includes the right to maintain it in the same condition as when the good was bought. Actions taken to meet this condition do not constitute a copyright violation. Professor Perzanowski introduced the 1901 case of Doan v. American Book Co. where the copyright interests of a business were overruled by the right of ownership by the consumer. Doan re-binded, re-painted the covers and replaced damaged pages of children’s books to imitate the original art to sell second-hand in his store. The case rules that Doan did not commit copyright infringement. The right of ownership also includes the right of repair or renewal, and separating these rights is “odious.” With the introduction of technological protection measures (TPMs) in copyright laws worldwide, this basic right to repair the things we own is significantly constrained. TPMs prohibit the circumvention of access control digital locks, independently of copyright infringement of the software protected by the digital locks. Furthermore, suppliers control the right to repair through repair manuals, generally protected by copyright as literary works. However, it is doubtful that all parts of repair manuals deserve copyright protection pursuant to the merger doctrine. This doctrine applies when there are limited ways to express an idea; the idea and the expression are thus merged and neither deserves protection. There are also strong arguments that repair service providers could invoke the doctrine of fair use in the US, in response to allegations of copyright infringement.
From left to right: Professor Aaron Perzanowski, Anthony Rosborough, and Professor Pascale Chapdelaine, Director of LTEC, at the Right to Repair Seminar.
How do Patents fit into this discussion?
Patent law generally allows for a broad right of repair. Professor Perzanowski discussed the patent exhaustion principle that states that the patent owner loses control over the product after the first sale. In this sense, consumers have the ability to do with their patented devices as they wish. However, while repair is generally allowed under this doctrine, reconstruction is not, and the line between the two is not always clear.
There are many other ways through which suppliers can constrain the right to repair. One of them is with the standard terms of use consumers and other users “agree to” when purchasing a new equipment or device.
Canada and the Right to Repair
Anthony Rosborough followed Professor Perzanowski, contextualizing the right to repair in Canada. 75% of Canadians support the right to repair legislation, and this support broadly transcends party lines (OpenSource). Rosborough believes this is due to Canadians’ favorable view of repair. Most of our electronic manufacturing occurs elsewhere which requires the Canadian electronics industry to be comfortable with repair, especially in more remote communities. Provincial governments and communities have already taken a step towards the right to repair with public tool libraries and electronic recycling centers.
Federal leadership remains key in achieving the right to repair. There are a trio of bills Rosborough suggests keeping an eye on. First, Bill C-244 is currently in committee in the House of Commons and aims to amend s 41 of the Copyright Act to allow for the diagnosis, maintenance, and repair of TPMs-protected products (i.e. those digital locks suppliers apply to protect embedded software in products we use from access and copying. Second, Bill C-294 is in committee in the House of Commons and aims to amend the Copyright Act to increase interoperability. The goal is to allow consumers of electronics, in certain instances, to override protection measures built into technology to make the electronic device work with any other device or component. Third, Bill C-231 is currently outside of the Order of Precedence. The bill aims to amend the Competition Act to require vehicle manufacturers to provide independent vehicle repair shops with access to repair information and parts if certain conditions are met.
Canada is moving towards codifying the right to repair. The topic provides students with a great opportunity to add to a growing legal field that’s very prevalent to our daily lives. LTEC Lab thanks Professor Perzanowski for a wonderful and engaging seminar, and Anthony Rosborough for providing the Canadian perspective on the right to repair. The recording for the event can be found here starting at 5:35.