As the demand for a comprehensive “right to repair” legislation gains momentum in different parts of the world, ARYAVEER HOODA and PRIYA RAGHUVANSHI examine the current legal position in this sphere, cemented by piecemeal legislation and a few judicial precedents.
HE “right to repair”, in the simplest of terms, can be expounded as a “freedom” – i.e., whether a consumer has the freedom to fix one’s property on his own or to choose their service provider, instead of compulsorily going back to the manufacturer. The right to repair movement has advanced in the past few years and is spreading its roots into society.
The movement transformed itself into a social movement because of increasing consumer frustration, since the repair monopoly is not limited to a single industry. It has made its way through the electronics and smartphones market too, marking a documented statement: “I can take it apart and fix it if I want. If I want to throw it in the river, if I want to paint it pink, I can do that.”
The consumer frustration emanated from the repressive monopolistic exercises of manufacturers. Manufacturers have systematically been tightening their control on the repair market by allowing repairs and access to spare parts, only to the authorised repair personnel of the company, making it nearly impossible for independent repairmen and third-party repair service providers to access spare parts.
Apple escalated the anti-repair practices with the newly launched iPhone 13, which is almost impossible to repair outside an Apple Store. Even if one uses authentic Apple parts, the software will block different features and the functionality of your iPhone unless the repair is authenticated by the software exclusive to Apple.
Moreover, the oppressive policies of the companies in which you lose out on warranty or could possibly infringe their copyright, if you have repaired your device outside the prescribed network, gives the manufacturers complete control over the market and restricts the consumers’ right to choose a service provider. Furthermore, manufacturers have periodically issued cease-and-desist letters when consumers or independent vendors have attempted to spread their knowledge of repair.
These companies, under the garb of intellectual property rights (IP rights), suppress the voice of individuals and threaten them with filing a suit against them for infringing the company’s IP rights. Thus, a company that is well equipped with legal resources, outweighs an individual’s efforts before the court of law. The manufacturers abuse their dominant position under the garb of IP rights, which not only violates Section 4 of the Competition Act, 2002, and but also creates a monopoly of the manufacturers in the market and controls the prices by making repairs nearly as expensive as a new device.
Further, this forces consumers to replace the device instead of repairing it, promoting a “throw-away culture” instead of a “repair culture”. A direct consequence of this is the rise in carbon footprint aggravating impacts of climate change. Statistics reveal that we generate around 50 million tons of e-waste every year, out of which a majority ends up in landfills leading to a significant ecological impact on the planet and raising serious environmental concerns.
These anti-repair practices by the manufacturers aren’t slowing down anytime soon, because the global repair and maintenance industry is valued at USD 616.01 billion and the companies do not want to lose out on the big bucks. Another reason why the companies are restricting repair is the existence of cut-throat competition, due to which, the companies are forced to launch their products at highly competitive price. As a consequence, the companies fail to recover their innovation costs, which they then tend to recover from expensive repairs and spare parts.
Any advancements in repair law are struggling to come through the developed nations of the world. This is majorly due to involvement and continuous lobbying against such legislation, by big players like Tesla, Apple, and Microsoft. The companies’ arguments range from consumer safety to IP rights’ violations.
Recently this year, the Right to Repair Bill was introduced in most of the 50 US states, but only New York’s Senate voted in its favour. Massachusetts is the only US state which has passed a monumental right to repair legislation.
The United Kingdom (UK) enacted a regulation requiring manufacturers to make spare parts available to the consumers, but this statute only incorporates “electrical appliances” limiting the right to a single branch of the tree.
Not falling short, France has also introduced regulations mandating electronics manufacturers to label their products with stickers showcasing a repairability index of that product. However, the devil lies in the details, as the scores will be compiled by the companies themselves, presumably ready to jump at the chance of being able to deliver a prejudiced index of their products.
India does not have any express “right to repair” legislation, which makes precedents the ultimate torch-bearers of this right in the country. The judgment of the Competition Commission of India (CCI) in the case of Shri Shamsher Kataria versus Honda Siel Cars Limited & Ors. (2014), upheld by the now-defunct Competition Appellate Tribunal (COMPAT), paved the way towards striking down anti-competitive practices being followed under the garb of IP rights by automobile companies.
In this case, the court held 14 automobile companies liable for indulging in anti-competitive practices by allowing purchase/ sale of goods and services only from their authorised dealers, as well as by denying access of independent repairers of automobiles to spare parts. It was specifically mentioned that IP rights cannot work as a shield for violating Indian competition law. This can be treated as a landmark judgment that prevents companies from exploiting consumer welfare for their individual interests.
While adjudicating the question of whether a company has an obligation to provide spare parts and consumable items like batteries for running a laptop, after the end of the basic period of warranty, the District Consumer Disputes Redressal Forum (East Delhi), in the case of Sanjeev Nirwani versus HCL (2014), held that the words “services” under the erstwhile Consumer Protection Act of 1986 “…includes services within the warranty period as per the terms and conditions of warranty and paid services beyond the warranty period.”
It was therefore held that, companies are under an obligation to provide spare and consumable parts, exclusive to a product, beyond the warranty period as paid services. The consumer forum considered the non-availability of spare parts as an “unfair trade practice” on the part of the manufacturers to escalate their sales, which in turn, forces the customers to abandon the products otherwise in proper working conditions.
This promotes a culture of “planned obsolescence”, a systematic way of inducing people to buy new gadgets, electronics, or automobiles by either making repair services too expensive or due to the non-availability of spare parts. Although companies and manufacturers assert that a “right to repair” legislation would contravene their IP rights, analysing specific sections of the statutes comprising IP law in India is necessary to ascertain the prospect of a “right to repair” of consumers in India.
Trade Marks Act
Under Section 29(1) of the Trade Marks Act, 1999, the infringement of trademark remains unrealized if the use of the trademark is for private purposes and not “in the course of trade”. However, if any kind of dealing impairs or changes the normal functioning or condition of the main product, it can be a legitimate reason to oppose such modifications under the Trade Marks Act in India, even for a non-commercial purpose.
Even when an independent repairer obtains spare parts for repair services, either by an authorised dealer or other manufacturers, such procurement would be considered a use of trademark and lead to infringement. Therefore, when repair services are involved, which are commercial in nature, the repairer can be made solely liable for infringement of the trademark.
Indian Copyright Act
It is also important to shed some light on Section 52 of the Copyright Act, 1957, which recognizes the right to modify software for a personal and non-commercial purpose while not explicitly mentioning repair activities.
However, independent repairers providing repair services for profit motives cannot be considered as a non-commercial adaption or modification of a computer program. This right of adaption can also be restricted through digital rights management (DRM) under the Copyright Act in India, which allows excess control of software manufacturers over how software is used. Any kind of repair which requires dealing with the software can be declared illegal through this.
End Users License Agreements (EULAs), on the other hand, create contractual relations which can effectively impose transfer restrictions, warranty restrictions as well as prohibit reverse engineering for repair purposes. Licensing of software rather than selling it also allows manufacturers to induce planned obsolescence.
While adjudicating the question of the rights of consumers, the case of Tekla Corporation & Another versus Survo Ghosh & Anr. (2014), cannot be overlooked. The Delhi High Court, in its judgment, held that any contractual restrictions which limit or impede the rights of the consumers after the sale of a product, cannot be enforced in a court of law.
Indian Patent Act
The Patents Act, 1970, under its Section 140, provides various broad guidelines under which certain restrictions imposed on purchasers can be declared as unlawful. Some countries follow the practice of implied license under which, apart from the invention, the right to repair may also get patented through a license agreement and consumers can also be prohibited from making any modification to the product.
In this case, the decision of the U.S. Supreme Court while dealing with the dispute between Impression Products, Inc. v. Lexmark International Inc., (2017) is relevant, wherein the court held that once the patented ink cartridge has been sold, the patent holder cannot file a suit for patent infringement relating to further use of the cartridge, even when it violates a contract with the consumer.
A similar kind of contractual relationship can also be traced in Indian law. When, in order to commercialise an invention, the patent owner licenses more than one patent, it is called “package licensing” and is legal if the licensee chooses every patent voluntarily. “Coercive Package Licensing”, on the other hand, is a practice under which the licensor forces the licensee to obtain a license for patents even when it is not required. Under Section 140 of the Patents Act in India, coercive package licensing has been declared as not enforceable.
The broad guidelines under this section leave the ultimate responsibility on the judiciary to decide anti-competitive practices. It is the need of the hour that IP rights must be construed in such a manner so as to not violate the basic right to repair. Right to repair can be termed as a utilitarian concept where lawmakers must keep in mind the maximisation of net social welfare over strict adherence towards IP laws hampering consumer rights.
Apart from IP rights, any activity which restricts or impedes the right to repair of a customer must be classified as a “restrictive trade practice” under Section 2 of the Consumer Protection Act, 2019. The said Act expressly recognises the “right to choose”, which connotes that a customer must have access to goods and services at competitive prices so that a competitive market can help in determining fair prices while also maintaining the quality of goods or services offered.
Monopolistic repair by companies clearly infringe the customers’ “Right to Choose”, due to which they are denied the access to get their products repaired or a spare part availed from a third party.
The way forward
From the above discussion and analysis, it can be asserted that the repair law is gaining momentum and attention from the parliamentarians all around the world. Furthermore, it can be deduced that the existing laws have more holes than Swiss cheese. Notably, a majority of the enacted laws deal only with a single industry – for example, the Massachusetts law provides the right to repair only for automobiles, whereas the laws passed in Paris and UK is for electronic appliances.
That being said, the need of the hour is to draft a complete and fair “right to repair” legislation encompassing the requisite industries. Such a law will not only help consumers but also promote sustainable development. Apart from the prior mentioned remedy, IP Rights need to be revised in order to sustain this noble right. The existing clash with IP laws in different jurisdictions, does not mean that the “right to repair” should be left out in the cold.
Thus, the responsibility lies on the lawmakers to enact new as well as revise the existing legislation.
(Aryaveer Hooda is a third-year undergraduate law student at DR. B.R Ambedkar National Law University, Rai. Priya Raghuvanshi is a second-year undergraduate law student at DR. B.R Ambedkar National Law University, Rai. The views expressed are personal.)