Still time to repair the Commission proposal on the right to repair
Despite its claims, the European Commission’s draft Directive on common rules promoting the repair of goods fails to ensure that consumers and other actors such as universities, hospitals etc. enjoy clear rights and possibilities when it comes to embedded software or access to repair information.
|What’s at stake||The European Commission’s proposal on common rules promoting the repair of goods in order to discourage wasteful manufacturing and emission of greenhouse gases fails to ensure that consumers enjoy clear rights around their own devices when it comes to the software embedded in them or access to repair information.|
|Solutions||– Ensure full support for the possibility to repair|
– Introduce a right to improve
– Don’t protect digital locks and contracts that hinder repair and improvement
– Expand the proposal to cover all products
– Ensure general access to repair-related information
|How?||– Stop contractual override and digital locks from blocking the right to repair and enhance software by updating relevant legislation in this context (the Computer Programmes Directive [2009/24/EC] & InfoSoc Directive [2001/29/EC])|
– Introduce a more open, principles-based norm that covers a wide range of technological uses including right to repair as we see in many East Asian countries as well as the US and Israel. This would evolve in response to wider technological and behavioural change rather than requiring piecemeal and reactive legislation that lags years behind changes to the economy and society.
– Ensure that access to repair-related information is never hindered by copyright
A key part of Europe’s drive to ensure greater sustainability is the effort to encourage repair rather than replacement of goods. This helps to reduce consumption of natural resources and lower waste, bringing environmental and climate benefits.
Many physical consumer goods today incorporate software as part of their functionality. However, in doing so, they bring those involved in repairs – including independent repairers and consumers themselves – into touch with copyright laws that govern computer code
The EU’s current provisions, set out in the Computer Programmes Directive (2009/24/EC) are far from complete. Consumers’ rights to repair are narrow (‘error correction’ rather than improving the function of the software and the device), and there is no guarantee against these being taken away by contract terms, while the sharing or professional use of tools to enable access to software is forbidden.
Similarly, Article 5.3.L of the Information Society Directive (2001/29/EC) allowing Member States to create a copyright exception for repair of equipment is purely optional, and also is too easily prevented or hindered by contracts or digital locks.
The new proposed Directive fails to address these weaknesses, despite similar steps being taken already in other parts of the world. As such, it falls far from being comprehensive and meaningful contribution.
The explanatory memorandum to the Directive makes clear its focus on ensuring that the contracts agreed between buyers and manufacturers sellers support the possibility to repair. However this falls far short of what is needed.
- The Directive should not limit the right to repair to manufacturers and their authorised networks. Everyone should have the right to repair as well as improve the functioning of their device.
- The Directive should not be limited just to the products listed in Article II but any product.
- Repair in the proposal (and the Computer Program Directive) needs to be more than just “error correction” but include a right to improve. This would recognise the vast size of the after-sales market and the benefits to consumers, environment and the health sector in having more efficiently operating products.
- In order to create a “right to repair and improve” a clear and simple step would be to underline that contracts should not be able to undermine the rights to repair and improve. This could be achieved, for example, by an Article 14A, alongside the relevant updates to the Computer Programmes and InfoSoc Directives to ensure that all three Directives work in tandem.
- Such an Article should also make clear that technological protection measures (aka “digital locks”)that stand in the way of repair rights should not benefit from protection under law, whether they are impeding individual consumers or professional repairers.
Medium to Long Term
Europe needs a more sustainable and competitive approach to flexibilities in law brought on by technological change. Consumers, businesses and public bodies require laws that govern information, software code, data etc that reflect their reasonable expectations in regards to what they can do with information they own or have the right to use.
The Right to Repair Directive, like the Copyright in the Single Market Directive is a much over-due, piecemeal and reactive response to an overly narrow issue that has arisen from the rapid change in technology. In order to have a world-class science and technology environment we need intellectual property laws that can deal with the unpredictable nature of scientific and technical innovation. Not a system that again and again responds with too little too late.
We need open and more flexible and open principles-based copyright norms that cover a wide range of current and unforeseeable technological uses. Europe needs to modernise and be competitive in science and technology markets and create a regulatory environment that supports this. East Asian countries as well as the US and Israel have adopted this approach – it is time for Europe to do the same.
In the meantime we look forward to working with the European Parliament and Council of Ministers to fix what remains to be fixed with the right to repair.
For more information, please see KR21’s Response on the Right to Repair.