Are the right-to-repair laws fair?

Manufacturers have long built products so consumers can’t fix them themselves, but growing demand for a circular economy and less e-waste could soon change all that

If you have ever damaged your smartphone or broken a laptop, you’ve probably had to pay through the nose to have it fixed.

Big tech companies have effectively created a monopoly on repairs and, as a result, can charge what they want, according to critics.

But now a right-to-repair movement is gathering momentum in Europe and America, where 15 states have active legislative proposals. If passed into law, electronics manufacturers would be required to provide independent repair shops with the tools and information needed to fix devices.

In Europe, the European Commission last October ratified new right-to-repair regulations to make repairing domestic appliances easier, in a bid to fight electronic waste. From April 2021, the regulations will require manufacturers to design their products to last longer and ensure spare parts are readily available.

What do right-to-repair rules mean for IP?

Opponents of the right-to-repair movement, specifically original equipment manufacturers (OEMs), argue that their IP could be infringed. Repairs carried out by third parties may also lead to devices and appliances being fitted with faulty parts, causing injury.

The actual impact it will have on IP is a grey area. In UK design law, at least, a spare part must fit and must match.

“These rules allow third parties to produce spare parts that have to match or fit the original product to do their job,” says Robert Lands, partner and head of IP and commercial at law firm Howard Kennedy.

“Those parts don’t infringe the design rights in the original article. Even where there is a patent on the product, there’s a right to repair it without that repair infringing the patent.”

Meanwhile, UK patent law states that a mere repair is allowed, but remaking the product isn’t. For example, replacing a key on a keyboard would be deemed a repair. However, fitting an internal component that not only restores functionality, but improves the product’s performance and extends its life cycle could be deemed as making a new product entirely.

Alistair Holzhauer-Barrie, patent attorney at leading IP law firm GJE, adds that some OEMs have difficulty protecting replaceable components with IP rights. This is often due to them not being innovative enough for a patent to be granted.

Giving repairers a seal of approval

In theory, the right to repair poses a threat to manufacturers’ revenues from replacement parts, especially if third parties choose to advertise their spare parts in ways that lead consumers to mistake them for an original, says Piers Barclay, chief strategy officer at online brand protection provider Incopro.

The replacement cycle for products will extend; people will look to keep older appliances for longer, reducing the revenue generated from new sales

OEMs could, however, reduce the likelihood of being exploited by third parties by giving repairers a seal of approval and persuading consumers to use them.

Apple, which has previously lobbied against right-to-repair legislation, last September launched an independent repair programme. Professional repairers can apply to gain access to official parts and components needed to carry out repairs, yet the tech giant will decide which repairers to authorise.

Creating new revenue streams

The move by Apple has been seen as a way for it to sell services and accessories to third parties.

Given that it will mean cheaper fixes for consumers, it could encourage more Apple product owners to keep hold of their device or pass them on to someone else. At a time when iPhone revenue has been declining, focusing on services rather than hardware could be crucial for the company’s future growth and sales.

“Commercially, the biggest concern for OEMs could be that the replacement cycle for products will extend; people will look to keep older appliances for longer, reducing the revenue generated from new sales. Monetising the aftermarket business is crucial,” says Paul Foot, partner and patent attorney at Withers & Rogers, one of Europe’s largest IP firms.

Holzhauer-Barrie adds: “The flip side of all this for those manufacturing spare parts is that they may need to be more careful about OEMs using more creative ways to limit their ability to make and sell the parts.”

Replicating inventive components unlikely

One question is whether the right to repair will lead to counterfeiters accessing information on a product’s inventive components.

“Releasing repair information could pave the way for counterfeiters to access a product’s manufacturing process and allow them to build a replica version, which could be sold to consumers at lower prices,” says Barclay.

E-waste projectionsIn reality, though, if this were to happen, OEMs would be well positioned to fight the infringement, given the law that distinguishes between repairing a product and making a new one.

“The proposed new right-to-repair rules probably won’t affect this, even if OEMs are compelled to allow third parties to repair their products,” says Alex Burns, associate and patent attorney at IP law firm Mewburn Ellis.

“The protection they have in place should be sufficient enough to ensure those third parties don’t replicate the central components of their inventions or designs without permission.”

While the right to repair could expose OEMs to criminals with little regard for IP protection, the vast majority of professional repairers will stick within the law, argues Foot.

“Ultimately, it’s not going to cause serious upheaval for OEMs. Opening up the aftermarket will simply give consumers more choice about where to source spare parts for repairs.”

Principles of the right-to-repair movement

According to the Repair Association’s website, consumers should have the right to the following from the companies they buy from

  1. Information

Documentation, software and legal ability needed to repair products

  1. Parts and tools

Fair access to service parts and tools, including diagnostics

  1. Unlocking for repair and reuse

Ability to unlock and modify software and firmware that is required to operate products

  1. Unencumbered resale

Ability to resell products (including the software needed to operate them)

  1. Repairable products

Designers should integrate design-for-repair/recycling principles into product development