The Right Balance: Why Copyright Reform Must Be Central In Right To Repair Legislation
The Knowledge Rights 21 Programme is all about ensuring that in copyright laws and policies, the importance of rights to research, education, and access to culture – as fundamental rights and policy priorities – are not only recognised, but properly enforced.
Too often, these rights are dealt with as afterthoughts –a secondary issue behind the short-term interests of a narrowly drawn definition of rightsholders who fall under the moniker of the creative industries. The consequence is that they are too often forgotten or accounted for in a piecemeal way that simply does not support research and learning.
Insufficiently thought-through copyright regimes that fail to place public policy goals and fundamental rights front and centre also risk inadvertently and unnecessarily standing in the way of sustainable development goals, such as responsible consumption and development, innovation, and economic growth.
This is because there is also a copyright angle to the right to repair, understood as the possibility not just to return a device to its original state, but to extend its life and so delay the need to discard it and buy a replacement. This can involve adapting, modifying and more, all in the service of reducing environmental impact and supporting freedom of choice and digital innovation around products that consumers, businesses, and public institutions have purchased.
This issue is economically and societally important for all European countries. Just taking two examples, all modern cars now contain software which if it goes wrong requires fixing. Without freedom to access and work on the code, the vehicle after sales market in Europe which surpassed $162 billion in 2020, will become more and more distorted as vehicle repair becomes a licence based activity subject to permission from a small handful of car makers. Turning to the health sector, threats in Italy to prosecute the iFixit platform on copyright grounds for its sharing of information about the repair of medical devices also shows the important public interest in realising a meaningful right to repair environment in Europe.
With more and more devices integrating ever more software, it matters whether there is the possibility for consumers, universities, hospitals and businesses – and the independent repairers they rely on – to access, copy and adapt code. This possibility is governed by copyright legislation – in the case of the European Union, the Computer Programmes Directive (2009/24/EC), and the InfoSoc Directive.
So how are they doing so far? There’s plenty of room for improvement:
- A first challenge is around the definition of repair itself. The Computer Programmes Directive simply talks about ‘error correction’ (Article 5(1)) – an unnecessarily narrow definition that excludes the possibility to modify or improve in order to increase lifespan.
A better approach would be to allow for a more open definition, based on fair practice, that allows not just the right to repair but the right to analyse and undertake any type of forward engineering based on analysis of the ideas contained in the algorithms and computer code. This would cover a number of digital-innovation friendly activities including AI, R&D, technology testing etc. which would help achieve the fundamental goal of sustainability and European digital development in a balanced way. In this, we can take inspiration from the United States and Japan.
- A second challenge is the potential that still exists for contract terms and digital locks to undermine the effectiveness of any right to repair. Where software – or repair information itself, such as manuals – are licensed rather than sold, then it is the terms of the licence that determine what a user can or cannot do.
While the Computer Programmes Directive does not permit improving software, even on bug fixing it is unclear on whether contracts prevent this activity or not, suggesting different approaches in Article(5(1)) and Recital (13). Moreover it is unhelpful on digital locks, effectively outlawing the professional use of circumvention tools or their sharing (Article 7(1)(c)).
Meanwhile the Information Society Directive says nothing on contracts, and its provisions on removing or circumventing technological protection measures don’t apply to licensed materials provided over the internet (Article 6(4)), as is usually the case with software. While some countries, in national law, do have general contract override provisions or more formal structures for removing digital locks, they are far from a clear and enforceable right to repair and are very slow to grant access
Any future legislation on repair or forward engineering should therefore be clear about the unenforceability of contract terms, as well as providing more effective means of getting past those digital locks which stand in its way.
- Finally, there is the question of the circulation of repair information. This is covered in the Information Society Directive (Article 5(3)(l)), which only offers an optional exception for use of information in connection with repair (something that as explained above the Computer Programs Directive disallows as only error fixing is permitted), and suffers from the lack of provisions on contract override and digital locks mentioned above).
Furthermore, as highlighted, the Computer Programmes Directive does not allow for sharing excerpts of code among repairers so as to allow collective learning and faster progress towards the goal of substituting repair for replacement.
Again, as in Japan, future legislation needs to address this issue, ensuring that the use and sharing of repair information or code relating to forward engineering is permitted and enforceable everywhere, both as it concerns relevant manual texts and excerpts of software.
In addressing issues relating to repair and access and forward engineering based on the ideas embedded in the code, the European Union can make an important step towards ensuring that its approach to copyright is governed by clear public policy objectives and human rights, rather than treating these as an after-thought. As a region falling ever behind the US, China and Japan in AI markets, this will be an important recorrection of the course it has so often followed to date, in both copyright and broader digital legislation. It will also be a valuable service to consumers and public institutions ranging from universities, hospitals and libraries, as well as society at large
The fact that copyright law now governs the ability of a hospital to fix or improve the functioning of medical devices, or consumers to have their car fixed, is something it was unquestionably never designed to do. This needs to be challenged and laws that reflect societal needs developed, in the name of common sense as well as sustainability and home-grown digital innovation in Europe.
 See Art 30-4 of the Japanese Copyright Act.