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Right to repair

September 20, 2022

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This article has been written by Ziya ur Rahman Karimi, a law student at Jamia Millia Islamia, New Delhi. This article comprehensively discusses everything about the right to repair. This right provides consumers freedom to repair and fix devices according to their own choices. It also provides a detailed analysis of the current status of the right to repair movement in India and across the world.

It has been published by Rachit Garg.

Table of Contents

Introduction

Suppose you spent over a thousand rupees on your laptop a few years ago, and now it barely holds a charge. Without a new battery, you’re connected to an outlet, which is both inconvenient and counterproductive to the purpose of a laptop. However, it turns out that a new battery is impossible to install in any case, so you feel compelled to spend another $1,000 on a new laptop, despite the fact that your old one functions perfectly fine elsewhere. This is an almost universal experience, regardless of whether it involves a laptop, a phone, or a car.

For a long time, technology companies have made their products difficult, if not impossible, to repair. This is a major drawback for consumers, since if their phone stops operating due to a faulty component, they may have to purchase an altogether new device if the part is unavailable or impossible to replace.

The right to repair is a rising global movement that aims to ensure that consumers are able to fix and repair their own devices; otherwise, the producer of those gadgets restricts the consumer to use only their offered services. This right gives the user access to a manufacturer’s hardware and software tools, as well as the choice of repairing the device himself or taking it to the manufacturer’s service centre or to a third party.

While global society is seriously concerned about the growing quantity of solid waste (particularly electronic components), the primary debate over the right to repair has been a topic of discussion worldwide. In July this year, the United States passed the Fair Repair Act, 2022, on the right to repair. The United Kingdom and European Union passed legislation such as Right to Repair Regulations and Right to Repair regarding this right.

Recently, in India, the Department of Consumer Affairs announced the formation of a committee under the chairmanship of Nidhi Khare, Additional Secretary of the Department, to develop a comprehensive framework for the right to repair. In this article, we will discuss the meaning, features, and importance, as well as the merits and demerits of the right to repair.

What is the right to repair

The term “right to repair” refers to legislation that would enable consumers to independently repair and modify their own consumer goods (such as electronic, automotive, or farm machinery like tractors) where the manufacturers of such products would otherwise require the consumer to use only their offered services by limiting access to tools and components or by putting up software barriers to prevent independent repair or modification. These challenges typically increase consumer expenses or make users replace equipment rather than repair it.

Consumers spend a large amount of money on devices that become obsolete in a few years. This, in addition to the problem that repairing these products is either excessively expensive or impossible, forces people to abandon them and replace the old product with a new one. The jurisprudence governing the right to repair is that the consumer can continue to use a product/device that he purchased for money for its expected lifespan without incurring significant costs, and the company should not force the consumer to get it repaired only from it, directly or indirectly, without making components available in the market.

A smartphone’s battery, for example, is likely to degrade with time and reduce the device’s performance. If the manufacturer deliberately does not manufacture the battery for older devices, the consumer has to pay hundreds of rupees to purchase a new phone.

Thus, as per the right to repair, customers must own a product completely after purchase and be able to repair or modify it easily and at a reasonable cost, instead of being dependent on the whims of manufacturers for repairs.

Features of the right to repair

The following are some key features of the right to repair:

Make information available

Everyone should have reasonable access to manuals, schematics, and software updates. Software licencing should not restrict support alternatives and should clearly state what is included in a sale.

Make parts and tools available

Third parties, including individuals, should have access to parts and tools for servicing devices, including diagnostic equipment.

Allow unlocking

The government should make it legal to unlock, adapt, or modify a gadget so that the owner can install custom software.

Repairable design

Devices should be designed in a way that allows for repair. Thus, basically, the right to repair requires manufacturers to disclose product details to customers so that they can repair devices by themselves or through third parties rather than relying on the original producers. It also unifies trade between Original Equipment Manufacturers (OEMs) and third-party buyers and sellers, resulting in the creation of new jobs.

Why do we need the right to repair

Manufacturers, deliberately or not, use a variety of techniques to make repairs difficult, such as proprietary screws, refusing to disclose repair documentation, or glueing pieces together. Sites such as iFixit (which also sells some of our favourite repair equipment) have sprung up over the years to provide product ‘teardowns’ and user repair documentation. However, a few articles or a handful of dedicated YouTube lesson videos cannot cover the vast array of products available today.

More and more products are becoming unrepairable. For example, a product may be impossible to open without destroying it (wireless earbuds are notorious for this, though novel solutions are occasionally developed), and may have no third-party parts options (Nintendo was recently sued over “Joy-Con drift,” a problem that requires Switch owners to send in their controllers to Nintendo for a fix), or may deny owners the ability to install custom software to extend its life after the company ends support (smart-home devices struggle with this, such as when Sonos tried to sunset support for older devices, or when Nest disabled the Revolv Hub). Even appliances, which have long been regarded as repairable, are increasingly incorporating computer chips, potentially making them more difficult to repair in the future.

Consider Apple as an example of how this type of thing typically plays out. For repairs, Apple has the Genius Bar. However, not every city in the country has an Apple Store, and getting to one in rural areas can take hours. After years of opposition, Apple ultimately opened its iPhone parts and tools to third-party repair shops in 2019 (and expanded it to Macs in 2020), but Apple continues to manufacture machines that aren’t simply upgradable or repairable by users after purchase. Right-to-repair legislation would oblige Apple, at the absolute least, to make those repair parts and tools, as well as basic documentation, available to everyone.

Benefits of right to repair

This will help small repair shops, which are an important part of local economies, grow.
It will contribute to the reduction of the continent’s vast mountain of electrical waste (e-waste).
It will save consumers’ money.
It will help to achieve circular economy goals by extending the life of appliances and improving their maintenance, reuse, upgrading, recyclability, and waste handling.

Right to repair movement in India

India is about to become the latest country to provide citizens with the right to repair their own items, including mobile phones, other electronics, automobiles, and farm machinery.

The Department of Consumer Affairs has taken an important step toward building an overall framework for the right to repair in order to stress the LiFE (Lifestyle for the Environment) movement through sustainable consumption in India.

The goal of developing a framework for the right to repair in India is as follows:

To empower consumers and product buyers in the local market,
To harmonise trade between original equipment manufacturers and third-party buyers and sellers
To emphasise developing sustainable product consumption; and
To reduce e-waste.

Thus, when this legislation is implemented in India, it would be a game changer for product sustainability and a driver for job creation through Aatmanirbhar Bharat by permitting third-party repairs.

In this regard, the Department has formed a committee to be chaired by Smt. Nidhi Khare, Additional Secretary, Department of Consumer Affairs, Government of India. Shri Anupam Mishra, Joint Secretary, Department of Consumer Affairs, Justice Paramjeet Singh Dhaliwal, former Judge of the Punjab and Haryana High Courts, former President of the Punjab State Consumer Disputes Redressal Commission, Prof. (Dr.) G.S. Bajpai, Vice-Chancellor, Rajiv Gandhi National University of Law, Patiala, Prof. Shri Ashok Patil, Chair of Consumer Law and Practice, and representatives from various stakeholders such as ICEA, SIAM, consumer activists, and consumer organisations as members.

The committee held its first meeting on July 13, 2022, and recognised key sectors for the right to repair. Some of the sectors that were recognised in this meeting are farming equipment, mobile phones/tablets, consumer durables, and automobiles/automobile equipment.

During the first meeting, it was also taken into consideration that companies avoid publishing guides that can help users easily make repairs, this was one of the key topics raised in the discussion. Spare components are under the exclusive responsibility of manufacturers (regarding the kind of design they use for screws and others). Monopoly on repair techniques violates the “freedom to choose” of the customer. Digital warranty cards, for example, ensure that a customer loses the right to claim a warranty if they purchase a device from a ‘non-recognized’ retailer. The controversy, which is surrounded by Digital Rights Management (DRM) and Technological Protection Measures (TPM), is a huge relief for copyright holders. Manufacturers promote a culture of ‘Planned Obsolescence’. This is a system in which the design of any gadget is such that it only lasts a certain amount of time before having to be replaced. When contracts fail to transfer full authority to the buyer, the legal rights of the owners are affected.

It was also decided, during the discussions, that tech businesses should provide complete information and access to manuals, schematics, and software updates, and that the software licence should not limit the transparency of the product on the market. Parts and tools for servicing devices, including diagnostic tools, should be made available to third parties, including individuals, so that minor flaws in the product can be fixed. Fortunately, our country has a thriving repair service sector as well as third-party repairs, including those who cannibalise products to provide spare parts for the circular economy.

Though the right to repair is yet to be recognised as a statutory right in India, certain judicial pronouncements have indirectly recognised the right to repair.

Shamsher Kataria v. Honda Siel Cars India Ltd. 2017

In this case, the Commission discussed the idea of vertical agreements, which included exclusive supply agreements, exclusive distribution agreements, and refusals to deal.

Facts

The informant in the case claimed that the Opposite Parties (OPs) engaged in anti-competitive practises, such as not making genuine spare parts of automobiles manufactured by some of the OPs freely available in the open market and that most OEMs (original equipment suppliers) and authorised dealers had clauses in their agreements requiring authorised dealers to source spare parts only from the OEMs and their authorised vendors.

Issue

Are these agreements restricting consumers’ right to repair and are anti-competitive?

Judgement

The Commission held that the contested agreements violated Section 3 of the Act, noting that the network of such agreements permitted OEMs to become monopolistic participants in the aftermarkets for their model of cars, establish entrance hurdles, and foreclose competition from independent service providers.

The Commission further ruled that Commission, such a distribution structure allowed OEMs to seek exploitative prices from their locked-in consumers, increase revenue margins from the sale of auto component parts as compared to the automobiles themselves, and have potential long-term anti-competitive structural effects on the Indian automobile market.

Furthermore, the Consumer Protection Act, 2019 also recognises that a monopoly on repair methods violates the customer’s ‘right to choose’.

Thus, this Act and the decision of the Competition Commission of India in the above-mentioned case partially acknowledge the right to repair.

Right to repair in other countries

Several countries, including the United States, the United Kingdom, and the European Union, have recognised the right to repair. The regulatory framework began in the United States with the passage of the Motor Vehicle Owner’s Right to Repair Act in 2012. This Act requires automobile manufacturers to provide consumers with the necessary documents and information to allow them to repair their vehicles.

European Union

The European Union brought in right to repair Rules in 2019 to establish a circular economy of digital products, giving users access to repair tools to repair consumer appliances. The EU, on the other hand, is still working on broadening the scope of these product repairs, and active legislation is in the works. Meanwhile, France imposes a mandatory repairability score by implementing the new Anti-Waste Law, 2020, which ranks products based on their ease of repair and informs users how to repair them before purchasing them.

United Kingdom

In July 2021, the United Kingdom implemented the Right to Repair Regulations, which require manufacturers to make spare parts available to their customers and third parties. Manufacturers of machines, refrigerators, dishwashers, and television screens are required by European Union repair laws to make spare parts of these appliances available to professional repairmen for up to ten years after the product is first released.

Australia

In Australia, even though there is no specific right to repair legislation, they have Repair Cafes, which are free gathering places where volunteer repairmen gather to share their skills with people who bring in their goods.

United States

In the United States, the Fair Repair Act was passed in June this year. The legislation requires companies, at least in the state of New York, to provide patented tools and remove software restrictions that prevent users from repairing their own products.

Planned obsolescence

The first person to use the term ‘planned obsolescence’ was an American industrial designer named Brook Stevens. This term refers to the standard marketing practice for any gadget to be made so that it can only be used for a limited period of time before being replaced. In order to increase sales and maximize profits, this practice favours sellers and tries to force them to unduly influence consumer decisions.

Planned obsolescence is a business approach that involves manufacturing gadgets in such a way that they are only usable for a limited period of time. Performance-reducing software and the manufacturing of structurally unsound devices are examples of planned obsolescence strategies. Examples of intentional obsolescence include irreplaceable oximeter batteries, non-refillable printer cartridges, short-life light bulbs, and so on. This refers to the reality that technology is designed to last just a limited time before being replaced, putting a significant strain on the environment through wasting resources. Many global corporations, like Apple and Samsung, have used intentional obsolescence as a marketing strategy.

Thus, planned obsolescence not only targets the consumer’s right to repair but also results in e-waste caused by the massive consumption of electronic items as a result of product design failure. The proliferation of e-waste has raised serious environmental issues, particularly in India, which is officially ranked as the world’s third largest e-waste creator.

Since there is currently no particular legislation against planned and strategic obsolescence, the introduction of right to repair laws could alleviate such environmental strain by creating room for reusing things, prohibiting planned obsolescence, and sustaining a circular economy.

Reaction of tech companies to the right to repair movement

Amazon, Apple, Microsoft, and Tesla are all among the companies that oppose the movement, claiming that it directly threatens the protection of intellectual property and trade secrets.

Microsoft and Google have also spoken out against the right to repair movement, claiming that it allows unvetted access to sensitive diagnostic data and software.

Elon Musk’s Tesla has stated that such an act would weaken the system’s cybersecurity and make it vulnerable to attacks.

Reasons why the tech giants are against right to repair legislation

There are numerous reasons why the right to repair is significant. However, there are six valid arguments against the right to repair. They are as follows.

1. Users’ safety

User safety is one of the strongest arguments against the right to repair. Technology is no longer as simple as it once was; it has become more complicated, interconnected, and difficult to repair without professional assistance or expertise. In other words, your attempt to repair your smartphone is not the same as your grandfather’s attempt to repair a cassette player.

Digging into your tech devices can be hazardous because they contain combustible materials and sharp metal parts. Any type of serious mishandling can necessitate immediate medical attention. Furthermore, when user fixes go wrong and cause harm to the device owner, it can have a significant impact on a company’s image because its products are perceived as a hazard, as was the case with the exploding Samsung Galaxy Note 7.

2. Shrinking tech

Every year, technology shrinks, and repairing intricate hardware becomes less obvious to the average person. While older technology could be repaired with common tools available at any hardware store, modern technology is smaller and more nuanced in comparison. They frequently necessitate the use of specialised tools that are not widely available and may even necessitate licencing.

However, there is no doubt that some companies could go a step further and deliberately make it more difficult for people to repair their products. The most notable example is Apple, which uses proprietary pentalobe screws in iPhones, which prevents other repair shops from prying the devices open; they must be Apple-certified to receive the specialised tools.

3. Efficiency

Modern technological products are designed to be as efficient as possible within their given form factor. Take, for example, smartphones. You only have so much room to make the product as good as possible.

To make it more easily repairable, you would have to reduce its efficiency by accommodating modulation and repairability. While you may be willing to make that sacrifice, OEMs cannot afford to do so in an environment where their products are constantly compared to others.

It’s not uncommon for us as consumers to see benchmark scores to judge a device’s performance and dismiss it immediately if it falls below a certain level. This is why manufacturers find it difficult to sacrifice efficiency in order to accommodate repairability.

4. Competition

Making your items more repairable and durable is not a sustainable long-term business strategy in a competitive market where every client wants to receive the most value for their money.

If buyers could use your products for years by simply repairing them every now and then, you wouldn’t have a steady stream of repeat customers. And without recurring customers, it will be difficult to generate enough revenue to survive, let alone grow.

However, one way to combat this is to see a significant increase in subscription models, in which the user pays a monthly fee for a variety of ongoing benefits. Consider Amazon Prime, Apple TV, Spotify Premium, and so on.

While the manufacturer has no control over the hardware after the product is sold, the software can be manipulated after the sale. Original equipment manufacturers (OEMs) profit even if customers keep their devices for a longer period of time.

5. Demand and supply

We have seen that making items more repairable reduces their effectiveness, but the consequences don’t stop there. A lesser-known argument against the right to repair is based on simple economics. OEMs cannot release inferior products to their competitors and expect their customer base to remain silent.

When the demand for a commodity falls due to a decrease in quality, the price falls as well, because fewer people are willing to buy it. When the price of a commodity falls due to insufficient profits, there isn’t enough incentive for sellers to sell it. There must be a balance.

Without it, market competition will decrease, making things worse for consumers because they will be forced to buy products from a select few businesses that have survived, robbing them of their freedom of choice. This collapse game ultimately harms the consumer.

6. No incentive to innovate

We all know that technology gets cheaper and better over time due to economies of scale and innovation, but that principle is based on one fundamental assumption: manufacturers have enough incentive to consider taking on the risk and cost of research and development (R&D).

OEMs constantly push for new cutting-edge technology because they have a clear advantage in doing so. In a world where people are used to repairing their gadgets rather than upgrading them, innovation will be an afterthought rather than a priority.

After all, if you, as a manufacturer, don’t see any benefit in innovating because no one will buy those new products anyway, you would not take the financial risk and bet your company’s survival on it. In such a situation, you would prefer to just leave things the way they are.

Why should right to repair laws be enacted

Pricing

Since there are no service manuals, manufacturers have a monopoly over repair shops and can charge customers exorbitant fees.

Tackle planned obsolescence

The right to repair law could decrease environmental pollution by prohibiting planned obsolescence and promoting a circular economy. Consequently, companies would be compelled to manufacture long-lasting gadgets.

Right to choose

The monopolisation of repair methods violates customers’ right to choose, as recognised by the Consumer Protection Act of 2019.

Boosting the local economy

The right to repair allows for the establishment of small repair shops in the local area, which increases the revenue of the country and produces enough jobs.

Environment protection

The most important factor in supporting right to repair laws is the environment. Around 40 million tons of electronic waste are generated every year. The right to repair law will limit the disposal of electronic equipment into landfills and encourage the prudent use of resources for environmental protection.

Furthermore, the production of an electrical item is a highly polluting process. It uses polluting energy sources, such as fossil fuel, which has a negative impact on the environment. Improving the longevity of electrical equipment will have a positive impact on the environment, and more repairable technology will aid in tackling the increasing problem of toxic electronic waste since more people will be able to reuse older devices that simply need repair to function properly.

Problems involved with providing the right to repair

Security and privacy

Third-party access to products based on their patented technology may raise security and privacy problems.

Lobbying by big tech giants

Major technology companies such as Apple, Microsoft, Amazon, and Tesla have lobbied against the right to repair. They continuously say that they are working on improving their own durability.

For example, in 2022, Apple took additional steps to reduce its contribution to e-waste. Its free, independent repair provider service is currently available in 200 countries.

After being criticized for making it nearly impossible to replace the battery in prior generations, Microsoft has highlighted how it enhanced the battery and hard drive of its third-generation Surface Laptop.

Other methods to prevent independent repair

Big companies frequently use measures that effectively prohibit other businesses from repairing their products. For example, digital warranty cards ensure that a customer loses the option to claim a warranty if they purchase a product from a ‘non-recognized’ retailer.

Suggestions for the Indian scenario

First, in order to improve consumer welfare, India should implement a dedicated repair law. In Shamsher Kataria v Honda Siel Cars India Ltd (2017), the Competition Commission of India (CCI) ruled that limiting access to spare parts to independent automotive repair units through an end-user licence agreement was anti-competitive. The CCI found that the practice was harmful to consumer welfare.
Second, it is important for India to learn from good regulations and practises in other countries, such as the prevalence of repair cafés in Australia.
Third, India should realise that well-drafted legislation will not only protect the right to repair but may also help the country achieve a much-needed balance between intellectual property and competitive rules. Furthermore, it will boost the circular economy by enhancing appliance life span, maintenance, reuse, upgrading, recyclability, and waste disposal.

Conclusion

In light of the above discussion, it can be concluded that the right to repair is important for both the user and the environment. Even if a manufacturer does not benefit as much as the consumer, it can still develop newer and better products while still allowing users to repair existing ones. Technology advancements and reparability are not always contradictory. Moving toward a world where technology is not constantly discarded due to a single malfunctioning part would assist in reducing e-waste and environmental problems while also giving consumers choice over the things they buy and the ability to fix such devices.

Frequently Asked Questions (FAQs)

What is the origin of the right to repair?

The concept originated in the United States, where the Motor Vehicle Owners’ Right to Repair Act of 2012 compelled manufacturers to release the necessary documentation and information so that anybody may repair their vehicles.

Which is the first country to pass a law on the right to repair?

The Digital Fair Repair Act was passed in the United States in June of this year, and with this Act, the United States became the first country to pass a law on the right to repair. The regulation requires manufacturers, at least in the state of New York, to provide patentable tools and abolish software limitations that prevent customers from repairing their own devices.

Is there any right to repair laws in India?

Currently, there is no regulation regarding the right to repair in India. However, as per an official statement issued by the Ministry of Consumer Affairs, a committee has been formed to develop a framework for the ‘right to repair’, chaired by Nidhi Khare, who is the additional secretary of the Department of Consumer Affairs. The committee held its first meeting on July 13th this year and identified important sectors where the consumer’s right to repair would be crucial.

What will be included in the Right to Repair Act in India?

According to the Centre’s statement, a crucial aspect of the regulation is that tech companies should provide complete information and access to manuals, schematics, and software updates, and the software licence should not limit the transparency of the product in sale. Parts and tools for servicing devices, including diagnostic tools, should be made available to third parties, including individuals, so that minor flaws in the product can be fixed.

The Act would also define the time limits within which a firm would be accountable for providing consumers with cheap and viable repair options. It is also looking at overseas models that hold repair workshops in order to teach a wider number of people how to repair products. It could also impose restrictions prohibiting corporations from erecting hurdles that would break a gadget in the event of a third-party repair effort.

How would the right to repair be beneficial for consumers in India?

Customers could able to get their own set of tools in order to repair their smartphones and computers, as well as comprehensive instruction manuals. Users might also choose whether to take their product to an authorised repair facility or repair it themselves. This could ensure that the lifetime cost of a device is reduced if repairs are more affordable.

It is important to highlight, however, that the right to repair would also include planned obsolescence, which would give products a specific number of lifetime years within which the right to repair would be recognised by law. This might be aimed at minimising e-waste and developing a circular economy of organised product refurbishment.

Why is the right to repair movement important?

Consumers frequently spend large sums of money on these appliances and devices, only to discover that they become obsolete within a few years of purchase. A smartphone’s battery, for example, is likely to degrade with time and reduce the device’s performance. If the battery cannot be replaced, the consumer is compelled to return the handset and pay hundreds of rupees for a new phone.

Fragile and irreparable components also shorten a product’s lifespan. Support for functional devices and non-standard parts is also being phased out by manufacturers. Most modern technology is made up of irreparable and irreplaceable parts, especially when it is powered by powerful computer chips.

With devices becoming increasingly difficult to fix, campaigners and consumer organisations are promoting the right to repair movement, which wants to allow people to repair their electronic products themselves or through third-party professionals.