A Right to Repair for Australia — Forum — 5 February 2020

Law Futures Centre Forum: Can we fix it? A Right to Repair for Australia?

  • Time 5.00 pm to 7.30 pm
  • Date Wednesday 5 February 2020
  • Location QCA (S05) 2.04 | South Bank campus

About the forum

From phones and fitbits to fridges and cars, consumers are buying more and more ‘smart’ consumer goods. Yet by denying consumers the ability to repair these goods, manufacturers of ‘smart’ goods are challenging, and even undermining, the very notion of physical ownership. More broadly too, the (in)ability to repair ‘smart’ consumer goods is contributing to the increasing problem of product obsolescence and e-waste which is inhibiting Australia’s environmental sustainability.

Globally, there has been a groundswell of support from consumers, repairers, environmentalists and designers for a ‘Right to Repair.’ The US and EU have already introduced ‘Right to Repair’ schemes into their laws. While Australia does not have ‘Right to Repair’ legislation, there is increasing interest in a ‘Right to Repair’ for Australia as this would both benefit Australian consumers and improve Australia’s environmental sustainability.

Please come and join us for a public discussion about the ‘Right to Repair’.

Hear from our Panel of Experts about what is happening in the International ‘Right to Repair’ movement and join us in discussions about whether there is a place for a ‘Right to Repair’ in Australia.

Meet our Panellists

Professor Taina Pihlajarinne, Faculty of Law, Helsinki Institute of Sustainability Science (HELSUS), University of Helsinki, Finland

Professor Leah Chan Grinvald, Faculty of Law, Suffolk University, Boston, Massachusetts, US

Professor Graeme Austin, Chair in Private Law, Victoria University of Wellington, NZ and Professor of Law, Melbourne University Law School, Victoria

Mr Guido Verbist, General Manager — The Bower Reuse and Repair Centre, NSW

Mr John Gertsakis, Director and Co-founder of Ewaste Watch, Victoria

Professor Matthew Rimmer, Professor of IP and Innovation, Faculty of Law, QUT — Brisbane

Dr Michelle Maloney, Australian Earth Laws Alliance, Brisbane — QLD

Organisers

Professor Leanne Wiseman, Griffith Law School, Griffith University
Dr Kanchana Kariyawasam, Griffith Business School, Griffith University

Transcript

Sue:

I want to first start, as we always do, with an acknowledgement of the traditional owners of this land, the Chepara-Yugarapul people. As we always do, we think about how we sit on the banks of the Brisbane River, the Maiwar. And we think about how it is our duty as citizens of this city to protect the natural environment in which we sit.

Sue:

And so the Law Future Centre has a couple of themes. One is about luring global change and the protection of human rights and better governance. And I don’t know if any of you are looking at the state of the union address by Trump today, but that’s fairly relevant. And the second theme is around law and nature. The third theme is around the future of legal education. So that’s the centre. And as part of the centre, we also work with ACIPA, The Australian Centre for Intellectual Property and Agriculture, of which Leanne is a member.

Sue:

So we are very interested in the future of governance and the future of human rights and the future of human endeavour, I suppose, and what it means for legal regulation. And so this particular workshop is absolutely perfect. We’re going to explore the right to repair. So my job today is really to introduce your guide in this journey on understanding the new frontiers of intellectual property. And that’s to introduce professor Leanne Wiseman, who is a professor at the Griffith Law School and an Intellectual Property… I’m trying to think of a word that doesn’t mean obsessed, aficionado.

Graeme Austin :

Guru.

Sue:

Guru, that’s better. She’s a guru. And we have this wonderful panel of gurus with her that she’s going to introduce you to. So Leanne, please.

Leanne Wiseman:

Thank you, Sue. I might just sit here so that we keep it nice and informal tonight. Thank you very much. And thank you again to Griffith, the arts education law group and the Law Future Centre for providing the funding to have the opportunity to bring such a high level of expertise together to talk about the right to repair.

Leanne Wiseman:

So the format of this evening, I thought what would be useful is to provide a bit of a context and a bit of background as to the international Right to Repair movement and that will place where we are, here in Australia, today, given the developments in the United States and also in Europe as well. So essentially what I thought I’d personally like to do by way of introduction is to introduce our wonderful panel of speakers tonight or panellists.

Leanne Wiseman:

On the left, we have Leah Chan, Professor Leah Chan Grinvald from Suffolk university in Boston, Massachusetts. And Massachusetts is actually the home of the Right to Repair movement. So we’re very pleased to have Leah here joining us tonight to give a US perspective on this discussion.

Leanne Wiseman:

Next to Leah, we have professor Matthew Rimmer, who is a professor of intellectual property and innovation law, technology law? Yes, at PUT across the river. Matt is a longtime colleague also in The Australian Centre for Intellectual Property and Agriculture. We’ve worked together for a very long time. And Matt has expertise in IP and in a whole range of areas, but most recently, IP and climate change, IP and 3D printing. And it’s from those areas that Matt has come to the Right to Repair.

Leanne Wiseman:

And next to Matthew, we have Professor Graeme Austin from the Victoria University of Wellington, and Graham is a very well known IP expert and copyright expert as well in particular, also a competition law expert and expert in a whole range of areas. He also is a professor at the Melbourne Law School and has worked for some time at the University of Arizona in the United States. So he brings a wealth of experience to the Right to Repair as well, from a New Zealand perspective.

Leanne Wiseman:

And on my right, we have Guido Verbist who is actually the person who set up the Bower Repair Centre and recycle centre in Sydney. And Guido has a huge amount of experience in the practical every day repair, but also recycling, re-use. But also Guido has been involved in crowdfunding around the Right to Repair and actually has an online petition at the moment to Josh Frydenberg asking for right to repair legislation in Australia, and we’ll hear more about that later.

Leanne Wiseman:

And last, but certainly not least is Professor Taina Pihljarinne. Sorry, you can correct me.

Speaker 1:

Philjarinne.

Leanne Wiseman:

Yes, sorry. My Finnish is very bad, I apologise, but Taina has come from the University of Helsinki where they have an institute of environmental sustainability, and Taina has expertise in the European approach to the right to repair. So I think this is one of the benefits of bringing experts together from different parts of the world; New Zealand, America, and the Nordic country, and also with a European perspective so that we can, in Australia, learn from essentially some regulatory approaches.

Leanne Wiseman:

So really our focus tonight is looking at, we have a lot of IP expertise in the audience, as well as on the panel here tonight, but we acknowledge that the right to repair involves so much more than just intellectual property law and looking at exceptions within those laws. We’re acknowledging that there is a whole raft of possibilities with repair, whether it be within the environmental sustainability space, within insurance law, within taxation law, within competition law, consumer rights law, as well as intellectual property.

Leanne Wiseman:

There’s a lot of context that we’d like to talk to you about tonight. And part of our plan is to try and engage you as much as we can in the discussion tonight, so that we can hear from you. And many of you have an interest in repair, whether it be from design, or from the actual practise of repair or reuse yourselves. This is really an open forum for us to have a broad ranging discussion tonight.

Leanne Wiseman:

So in terms of probably a good place to start, sorry, I might turn around just to check that we’re all on the same page, but to start, I’d just like to turn to the sustainable development goals. We know that the UN has set these 17 goals as a goal for itself in terms of all nations to aim towards by 2030, that we seek to attain progress towards each of these goals.

Leanne Wiseman:

So in terms of where repair fits into the UN sustainable development goals, we’re looking at essentially goal number 12 in terms of, as you’ll see, repair, reuse, consumption, and all of those environmental goals that we’re looking at. So when we take the sustainable development goal, and this is very much where we’ve talked to Taina about the way that Europe is approaching the right to repair it because they are very much focused on the environmental sustainability. And that is the approach to regulation that they’re taking in Europe. And we’ve got some really good lessons to learn from that.

Leanne Wiseman:

So if we take the next step, looking at the sustainable development goals. Part of that is to move away from a linear economy, essentially the jargon of you take, you make, and you basically waste. The notion of a circular economy is that we basically try to make the most of our natural resources so that the economy is basically, we optimise all of our resources and reduce waste. And that is something, as you’ll see, along that journey, there is a whole raft of probably stakeholder groups that we’re looking at.

Leanne Wiseman:

So what is really important to acknowledge is this debate around the right to repair. It is not a silver bullet. And certainly it’s acknowledged that there is so much work from the design sphere about how designers are designing products and devices and goods that can go towards reduction of waste. And Dr. Jesse Adams Stein, from the UTS design school, in October last year held essentially what was the first Right to Repair discussion in Australia. And that was bringing together designers and a few legal experts and other stakeholders to look at how design can influence repairability. That’s a very important part of this debate.

Leanne Wiseman:

Essentially where we’re sitting on the circular economy, again, we’re just tonight going to focus on that repair aspect. So there is a lot going on with recycle and reuse, and we acknowledge that, and that has a really important part to play. But tonight we’re going to focus our discussion on the right to repair.

Leanne Wiseman:

So if we talk about, more generally, we heard this afternoon, alongside tonight we’re actually running an academic workshop, today and tomorrow, where we’re all looking at different aspects of this right to repair debate. And we heard this afternoon from John Gertsakis and Rose Reed, who are the founders of the eWaste Watch, and they have been instrumental in the product stewardship legislation that we have in Australia about recycling televisions and computer screens and trying to reduce e-waste. So there’s some fantastic work that’s being done. And it just, I thought I would show you this information about the amount of e-waste that’s being generated by Australia. For example, we are the fourth highest generator of e-waste per capita. So that’s 23.6 kilogrammes per person, or in other words, 574,000 tonnes per annum. And we’re also great hoarders. So we have over 250 million mobile phones lying at home, probably I drawers. I know I’m guilty of about four. Some are broken, some are just very old.

Leanne Wiseman:

So what I thought, I’d give you a little bit of background and context, and then I’ll open up to the panel and I’ll get them to contribute some perspectives. And then we’ll open up to some questions from the audience. So what I’d like to talk about essentially now is how did we get here? Why are we talking about a right to repair? For many of us, we probably had that sense of frustration of, for example, I have had in my lifetime three fridges, my parents still have the fridge that they were given for their wedding present in 1954, and it still works and it’s a great beer fridge. So there’s something really interesting every time an ice machine or a seal breaks on my fridge, they replace my fridge because to replace a door on a fridge is just not economically viable. They replace the whole fridge. So I’ll end up with a brand new fridge, whether I like it or not, they won’t prepare the fridge.

Leanne Wiseman:

So what we’re seeing is basically over the last decade, there’s a huge increase in the day-to-day items that we use in our homes and in our lives, that now are smart devices. They’re embedded with computer chips that will make them robotic or automatic, or just function at our convenience. So there’s a lot of convenience and upside of this smart tech that we have in our homes and on our farms, for example. But now we have washing machines, coffee machines, dishwashers, toasters, printers, microwaves, refrigerators, and your smartphone, and also your smart car, that basically are devices that you will not be able to repair. In some cases you cannot even open those devices.

Leanne Wiseman:

The reason you can’t repair them is multifaceted. For example, in some cases, and we can use the Apple iPhone is a really good example. They make those two phones so that they can’t be opened, that the batteries are glued in, for example. So there are physical hurdles to repair that we see, I have lighting in my home, exterior lighting, that you cannot replace a bulb in. When that LED light goes, you buy a whole new light because you can’t take the bulb out because it’s encased in the light. So what we’re seeing now is more and more products that are being built in a way that does not facilitate repair. So there’s a physical hurdle, but also what we’re seeing and that’s around the design aspect, but also the way in which manufacturers are producing the parts, there’s availability of spare parts. In some instances, there are none, or in others, the parts are so expensive that you’ll either spend $700 to get your air conditioner fixed, or you’ll pay 800 to get a new one, and everyone will choose to get a new one.

Leanne Wiseman:

So the availability and cost and accessibility of spare parts is a significant issue, as with the availability and access to the technical information that you need to access. So, for example, in your vehicle, your motor vehicle, you can’t take your motor vehicle to the local mechanic anymore and get the local mechanic to fix a brand new smart car because they don’t have the diagnostic software and often they can’t access that. So we’ve seen some reform in Australia around that. And we’re looking at that.

Leanne Wiseman:

But in addition to the physical availability of spare parts or the actual physical hardships placed around repair, manufacturers are using their intellectual property rights to lock up the devices even more. So intellectual property, whether it be a patent over the product, a design right over the product, but more likely, and we’ll hear more about this tonight, is they’re using copyright law because it’s a software that’s embedded in the technology itself. They have intellectual property rights in the computer software, and they can use what we call technological protection measures to lock up that software, to protect it.

Leanne Wiseman:

Now, technological protection measures is an expression in the copyright act. In other words, it’s a digital lock, essentially. So these laws were developed for copyright owners in the 1990s when they were very concerned about online music and online movies and online videos being downloaded for free. So they were given power to lock up their digital content in a way that prevented people from copying. What we’re seeing though, is the expansion of the use of technological protection measures to do more than just stop people copying the software. They’re actually using that TPN to lock up the device full stop.

Leanne Wiseman:

So if we translate this and think about our farmers and agriculture. For example, the last 10, 20 years on farm has really been transformed by digital technologies on farm. So we had sensors, we have tractors that are GPS driven. They are essentially like, they have a dash, like an aeroplane, for example. So this, all of these technologies on farm now basically have computer codes in a lot of devices, whether it be a drone or tractor, a sensor on farm. And so we have the presence of copyright on farm that we’ve never had before.

Leanne Wiseman:

One of the consequences of this is that John Deere, for example, will say you don’t own your track, you have a right to use your tractor, we own the technology that’s embedded in your tractor. Not only do we own the information that that tractor will gather up, the agricultural data, but we also will stop you from tinkering or modifying your tractor because we own the technology in that tractor.

Leanne Wiseman:

So I came to the Right to Repair through the work in agriculture that we do in ACIPA, because farmers were complaining, particularly in Western Australia, that they couldn’t tinker or modify their tractors that were manufactured overseas to accommodate the harsh Australian soil, because once they attempted to tamper with the technology on the tractor, often the system might shut down or basically they would be breaching their licence agreement if they did so. So we’ve seen the increasing use of technological protection measures, or in other words, combined with end user licence agreements.

Leanne Wiseman:

So in this debate about the right to repair, we hear the language of OEMs, the original equipment manufacturers. We hear the arguments about EULAs, that’s the end-use licence agreement. They’re the terms of use that you agree to when you turn on your coffee machine or you switch on your smart car. Those are contracts that you enter into and those terms of those contracts will govern whether you can repair or not, essentially.

Leanne Wiseman:

So that’s where we are. And that is why we’ve seen such a rise of consumer concern across a whole range of sectors, including the motor vehicle industries, consumers, agriculture and farmers. And so as I said in the introduction, in 2012, and Leah will tell us more about this, perhaps, later. The first right to repair legislation was passed in Massachusetts. And it was essentially about sharing car repair information with non-authorised car repairers, for example.

Leanne Wiseman:

So Massachusetts was a watershed moment in 2012. This became, this law, essentially became the template that has been used across a whole range for agreements with the car industry as well. But it has also now been used as a template to say, well, if we’ve got this far, perhaps these provisions could work with consumable items, not just cars, but broader.

Leanne Wiseman:

So what we’ve seen is essentially from that time in 2012, the repair association began and very strong, powerful lobby groups have rallied around this consumer’s right to repair. So if we look at essentially how the repair association talks about repair. I like their definition and that’s essentially that the right to repair is for the consumers right to choose, who, what, where, why, when, how, and for how much their equipment is to be repaired. Now, while we acknowledge that it’s not everybody who wants to repair their own goods. For example, some of us here may be keen and able and skilled enough. I certainly don’t want to repair my own goods, but I do want to have the choice to go to a third party for repairs and not be forced to go back to a manufacturer who charges high service fees, or high cost of repairs.

Leanne Wiseman:

So we’ve seen a fantastic groundswell of support for the Right to Repair in the United States. John Deere has featured very strongly in the agriculture sphere and the American Farm Bureau is a very powerful lobby group, and they have been very vocal in support of the right of farmers, the backbone of the American economy, to repair their tractors and to repair their farm equipment. Why shouldn’t they? They spend hundreds and hundreds of thousands of dollars for these pieces of equipment. Why can’t they modify it or tinker with them, for example?

Leanne Wiseman:

There’s a fantastic book, if anyone’s interested in this area, it’s called the End of Ownership. It’s written by Aaron Perzanowski, yes? And professor Jason Schultz. It’s an excellent book about this idea that although we physically own these items, the question is really when we do not have the right to modify, to open, to access these items is that really ownership? This whole notion of digitally embedded goods with locks over them has really undermined the physical ownership rights that we associate with our goods. And this is very much the argument that John Deere has run in opposition to the right to repair discussion in agriculture. That you don’t actually own your $800,000 tractor. You just have a right to use it, and we own that.

Leanne Wiseman:

So we have people like Kyle Wiens who set up iFixit. It’s a fantastic organisation as well, who has set up essentially a website where he is making available repair manuals for pretty much a whole range of products. So we’re seeing essentially this movement spread throughout the United States. There’s this great repair manifesto that iFixit had developed. And so essentially, if you look on the slide, you can see, you can pretty much put in any product and you’ll be able to track down a guide of how to disassemble, how to access, how to repair. So I think what we’ve seen in the United States is really interesting for Australia because it’s been such a grassroots movement and it’s such a consumer rights driven movement.

Leanne Wiseman:

So in 2018, just quickly to take you through the history. From 2014, 15, onwards, every state, this debate has been going on and being picked up at the state level across America. 2018 was a great year. In 2019, we have 20 States of America who had right to repair legislation that’s sitting in their legislators at present, and they are currently being debated. If you follow Twitter, it’s great to see there’s debate going on as we sit. In Maine, in some of the States about this right to repair legislation.

Leanne Wiseman:

So you can see Massachusetts is actually taking another step forward in that they’ve recognised the car repair, but they’re also taking a step forward and looking at extending that to consumables as well. So only currently now there’s bill 107, which is basically an act to enable a digital right to repair for devices and goods as well.

Leanne Wiseman:

So we have Colorado in the United States currently lobbying is going on in relation to the right to repair. And we’ve also just had Hawaii, the committee vote unanimously to advance the Right to Repair. So there’s a lot going on in the United States, even just on the 1st of February, we’ve got reports that the American Farm Bureau was actually releasing a new policy, a 2020 policy, to revamp up their right to repair, and they’re trying to get agreement with the equipment manufacturers about access to technical information and diagnostic information for their farm equipment. And Senator Elizabeth Warren who’s a presidential candidate is actually proposing not a state level right to repair, but a national right to repair for agriculture and farmers, currently. So United States is fertile, fantastic ground. And we’ll hear more about that.

Leanne Wiseman:

Canada is also on the verge of looking at right to repair legislation, there’s work being done in their competition Bureau. There’s very vocal advocates, Scott Smith, who runs Honey Bee Manufacturing in Saskatchewan is a very vocal, he supplies the aftermarket in agricultural machinery. So there’s significant issues about access to the technical information. So Canada is also considering the Right to Repair, and as Taina will speak a little bit more about, the European union is really the first jurisdiction that has taken formal legislative steps to implement the right to repair through its eco design directive.

Leanne Wiseman:

So basically in October 2018, they passed a directive that will come into force in April 2021 that will require member States to pass laws that manufacturers must supply spare parts and keep those spare parts available for up to 10 years. And what is also interesting is that they’ve actually mandated that the repairs must be able to be done with normal tools. So unlike some of the Apple devices where you actually need to have a special Apple screwdriver, which no one else can access, the requirement is that normal tools be able to be used to conduct the repairs. That’s an interesting approach because it’s very much looking at reduction of e-waste and it’s putting the onus onto manufacturers to make sure that when they manufacture things, they must be able to be repaired. And that’s from a design perspective.

Leanne Wiseman:

So we’ve got movement in the UK as well with-

Speaker 2:

You’ve gone one slide ahead of yourself.

Leanne Wiseman:

Oh, I’m sorry. Thank you. That’s the EU one, sorry. There’s no screen here, sorry.

Leanne Wiseman:

In the UK, there’s been a Manchester declaration about repair. There’s a lot of repair cafes and there’s a lot of movement as well. Although they, I was going to say, they weren’t following the EU, but as with Brexit, they won’t be, essentially now.

Leanne Wiseman:

And we come to Graeme and New Zealand. New Zealand is also discussing a right to repair. Basically only last year, the commerce minister, I have a quote there. Essentially a meeting of our consumer affairs ministers in Australia and the New Zealand counterparts had a meeting and they came to agree that the right to repair was a significant issue. So each of Australia and New Zealand are looking at this. So I think what’s really important is in terms of context is that the time is right for this discussion. In Australia, we have a really healthy repair community, reuse, recycle movement. We have lots of repair cafes. We have fantastic, we’ve got the Brisbane Tool Library, we have Substation33 doing fantastic work as well. So we have a really strong repair community, DIY people, but also a lot of stakeholders who are interested in repair.

Leanne Wiseman:

We have Guido, as we’ve said, from the Bower, which is a very strong reuse and repair recycle centre, and we’ll hear more about that tonight. And as I said, he’s also running the petition which, sorry, I will go back. There’s a petition that Guido has on your website that you can all sign up to if you’re interested in supporting right to repair legislation.

Leanne Wiseman:

And just quickly, where we are in Australia, we actually are taking baby steps towards the right to repair. So what we have is, since 2012, the ACCC have been watching the car repair industry, the availability of spare parts, the access to technical information to repair smart cars has been on the radar of the ACCC. And in 2017, they were put on notice about the failure to share car repair information with third party repairers. And essentially the ACCC, through Rod Sims has recommended that we have a mandatory sharing of car repair information. He acknowledged the sophistication of our cars these days is that it precludes mechanics from actually repairing them. You need to have access to very expensive equipment to access the diagnostics on the new vehicles.

Leanne Wiseman:

So we have currently a piece of draught legislation or mandatory scheme. And professor Matthew Rimmer has actually done an excellent submission in response to this, highlighting the strengths of the scheme. But also we acknowledge that there are a number of limitations to the scheme, how it’s worded, whether it will just apply to cars, will it apply to light vehicles or bigger vehicles? Or it doesn’t apply to agricultural machinery, for example. So there’s a lot of scope for movement there, as well. As I said, we’ve been talking about the right to repair for a little while in relation to agriculture. And this, as I said, Jesse at the design school has been talking, has held this forum back in October, about what could we do as designers to work on a Right to Repair.

Leanne Wiseman:

So where we are in Australia is essentially now we have had a recommendation from the consumer affairs minister to look at the right to repair. So Shane Rattenbury, who has made a referral to the federal treasurer, that the federal treasurer refer the right to repair in Australia to the productivity commission in one of its future reviews. So part of the bringing together of this panel of experts and yourselves tonight is to try and explore this issue more broadly with community and to see how we can help government form a view about what might be an appropriate regulatory response.

Leanne Wiseman:

So just as a last tip, we have both sides of politics at the moment talking about the right to repair. We’ve had Susan Ley speak about it in parliament and we’ve also had Julie Owens support the Bowers’ Right to Repair, and calling upon government to take steps around the right to repair.

Leanne Wiseman:

So that’s a bit of a whirlwind tour of where we sit within the world. So essentially what I’d like to do tonight is just really turn to the panellists and ask each of them to give us a little bit of an insight into their experience with the Right to Repair. And so I might start with Leah perhaps, given that you’re from the home of Massachusetts, and the Right to Repair. Can you give us a little bit of an insight as to how that shifted from such a grassroots movement into legislative action?

Leah Chan:

Thank you. And thank you for that great overview, it was very informative, actually, even for myself to learn about the other jurisdictions. So 2012 marked the victory, but it really started, I think, in the mid 2000s with independent car repairers, just really being frustrated by the inability to repair cars. So it sounds like there’s a coalescence here as well of just these independents saying my livelihood is really being threatened and what can we do about it? And there was quite the-

PART 1 OF 4 ENDS [00:34:04]

Leah Chan:

…and there was quite the lobbying taking place; however, it actually didn’t, in the first instance, translate into legislation. In Massachusetts, we have a unique political process by which entities or even individuals can petition the state government for initiatives to be put on the ballot for votes, by the people. So in this case, the legislature had been asked and had been considering repair laws for quite some time, I think from 2008, at least four sessions of the legislature and it wasn’t going anywhere. And so the movement was able to collect mass signatures, you need over a 100, 000 signatures, unique signatures to then put it on the ballot for a vote. And that’s how it actually passed and then required, basically, as a mandate to the legislature from the people to enact into law what they want. And so that’s exactly what happened here.

Leah Chan:

So it’s this unique process that culminated, but what that did was that then push the auto industry into voluntarily agreeing with a majority of automakers in United States to enter into this memorandum of understanding, but then basically use the Massachusetts law as a template, as you were saying, to then provide the same rights all across the country. Because the automakers were concerned, and I think rightly so, that other States, if they were to decide to pass laws similar to Massachusetts, they could do things that were slightly different. And then they would be facing a regulatory nightmare of having to abide by, 50 plus types of different laws and so they decided let’s do this ourselves on our own terms. And moving into the digital Right To Repair, that’s sort of the idea behind the movement now. Is use that as… Try to get one of these States to pass a law, which would then bring to the table all these manufacturers, who have been since opposing it.

Leah Chan:

And so that’s where we are right now with the 20 States with that map. 2020 has proved to have quite the momentum with the such state legislatures. Previously state legislatures weren’t having hearings on them, the bills were dying in committee very quietly because of the lobbying efforts by the manufacturers, and I will have to say quiet efforts, very secretive efforts. Behind closed door meetings with the legislatures, letters sent directly to state legislatures warning of all bad things that are going to happen if you pass these laws. And now in 2020, we’re seeing open forums, open hearings, televised hearings, televised through CSPAN and YouTube. So it’s been really transformative and fascinating to watch.

Leanne Wiseman:

Thank you. Taina perhaps you could just talk to us a little bit about the different approach that the Europeans are taking and putting the onus upon the manufacturers to make repairable goods, which I think, surely that’s a great step.

Prof.Taina Pihlajarinne:

Yes. Thank you. Well, both in EU and in the U S, the policy makers are trying to increase the amount of repairs, but I think that the approaches are a bit different. So the recognising of the consumer’s Right To Repair has been a key driver in U S, but then the motivation has mainly been on waste prevention and in the rise of cheaper economy. So the consumer’s Right To Repair has only recently emerged as another important issue, I think. But they have nowadays are able to design direct team framework, which creates obligation for the manufacturers to provide spare parts and repair information for professional repairers. It also demands the manufacturers to change the design of the product so they will be easier to repair. And also, I think that it’s supposed to use the manufacturers to restructure their supply chains for spare parts so it’s a really remarkable step forward, I think.

Leanne Wiseman:

Yes, and so from 2021, each member state will have to implement laws?

Prof.Taina Pihlajarinne:

Yeah. Actually, no, they are directly applicable. So they are regulations that are directly applicable so they don’t have to. The member state doesn’t have to-

Leanne Wiseman:

Pass the laws.

Prof.Taina Pihlajarinne:

They don’t have to do anything. Yes. But it also a very crucial restriction is that these regulations concern only some household appliances but I think that they will take some further steps, I think. Let’s hope…

Leanne Wiseman:

So household appliances [crosstalk 00:39:37] white goods, so fridges and lighting…

Prof.Taina Pihlajarinne:

Yes. There’re really detailed regulations on each household appliance, that’s right. Yes.

Leanne Wiseman:

Do you want to tell us a little bit about your foray into the Right To Repair from the Maker Movement and the 3D World as well?

Prof. Matthew Rimmer:

Sure. So I’ve been very interested in how a rebel alliance of makers, hackers, Greenies, and digital rights activists have been pushing for the Right To Repair. In many ways, the right to repair has been previously somewhat crystallised in a former industrial age which was very much concerned about tinkering with machines, but a range of new technological developments have challenged that. Leanne has talked about the development of a whole wide range of smart devices and the need for software for everything, from cars to washing machines. But also we’ve seen covert growing emergence of other technologies, like the internet of things. There’s been a lot of concern that the internet of things may be the internet of broken things. In terms of 3D printing, there has been an emergence of additive manufacturing. So instead of manufacturing things by subtracting things away, you build up things layer by layer. 3D printing involves a certain form of technology that can be used to construct a whole wide range of things

Prof. Matthew Rimmer:

Around that has emerged the Maker Movement. The Maker Movement particularly grew in the United States with the Make magazine and a series of flagship Make Affairs. In the 2000s, Make Magazine published Maker’s Bill Of Rights and amongst other things, that was very much focused upon ensuring that items were open to repair. So it emphasised that ease of repair shall be a design ideal and not an afterthought. Some have thought that they are not radical enough. So critical makers and hacker spaces have argued, we need more than just merely tinkering. We need a compact fixer movement, not just the maker movement. There’s been a lot of interest in terms of how 3D printing and additive manufacturing could be used to develop spare parts for all sorts of domestic items. But there’s been a larger discussion about how 3D printing and additive manufacturing might be used to make car parts and a range of other products.

Prof. Matthew Rimmer:

In terms of digital rights activists, that’s been very interesting that the Electronic Frontier Foundation has helped the cause be heard. They push for wide array of Intellectual Property exceptions to allow for repairs, not only in relation to industrial designs, but also in relation to copyrights and patents and trademarks and technological protection measures.

Prof. Matthew Rimmer:

Notably, Edward Snowden, apart from being an activist in relation to matters of surveillance has been a big champion of the Right To Repair. In his autobiography, Permanent Record, he talks about the need to be able to know how to fix things. Otherwise, he suggests that you will be liable to technological tyranny, and if you’re not able to fix things, your possessions will possess you. So there’s been some interesting high-level political critiques about the need to be able to repair things. It’s also worthwhile thinking about who opposes the right to repair and really big multinational companies have been very keen on trying to control all aspects of their production use of their products. It’s been striking that Apple has gone from being an upstart, rebel and challenger to Microsoft and IBM to an admiral. They’ve gone from having very open personal computers to trying to have a very closed ecosystem in relation to their products. They had been trying to nobble many of the efforts to introduce Right To Repair.

Prof. Matthew Rimmer:

Tesla have opposed the Right To Repair on safety grounds and a concern that they don’t want people tinkering with Teslas, lest people injure themselves. But John Deere and Caterpillar have also resisted the Right To Repair. The association representing video games has opposed to the Right To Repair raising the spectre of flood gates of Intellectual Property infringement.

Prof. Matthew Rimmer:

Also, sadly, the Consumer Technology Association, which used to be a champion of consumer rights has been an opponent of the Right To Repair and has been busy supporting the ability and capacity of organisations to control how and where repair takes place.

Leanne Wiseman:

Thanks Matty. Graeme, would you like to tell us a little bit more about the tech protection measures because, they’re often said to be one of the main barriers to repairs, the fact that copyright owners are using digital locks. Tell us a little bit about that.

Prof. Graeme Austin:

Sure. Okay. So it’s a big topic. I did want to say something about refrigerators [crosstalk 00:45:24] first. Just a couple of weeks ago, I came back from a holiday on an island off the coast of New Zealand called Altea. It’s called Great Barrier Islands. Captain Compton had much imagination to Great Barriers. And there are three little settlements. In each settlement there is a book exchange, which is a great thing. Each of the book exchanges happens inside a defunct refrigerator that’s there on the side of the road for the books that can be exchanged. So the problem isn’t dinner. So on technological protection measures to take a really extreme example, if I’ve got a very ordinary pen here, biro, but this pen could be set up with software in it that prevents its use, if, for example, it doesn’t recognise my thumb print. If some other thumbprint is used, the pen couldn’t be used.

Prof. Graeme Austin:

So that’s a technological protection measure that, imagine a more exciting pen than this, that accessed the software that runs the pen. And consumer goods are full of this kind of software and it’s usually very simple software, but the software is used to protect business models essentially. And so the classic one that is used as the business model, when you buy a chip printer, but the consumer’s sundry is, the print cartridges are very expensive. They have little chips in them. So the one model that the software and the cartridges has to be right, otherwise the software in the printer won’t run. And so that’s the kind of technological protection measure. So it also impacts the right to repair because very often getting access to the software that has malfunctioned requires breaking through one of these technological protection measures.

Prof. Graeme Austin:

Now there are as Leanne put it beautifully in her wonderful summary of this area, there are many, two problems here. One is a technical problem of just having the technological expertise to be able to break through the lock, to be able to do whatever it is you want to do to repair the goods. That’s one problem. There’s growing expertise out there in the repair shops. So people who can do this with you. For you, sorry, I can’t do it. My nephew probably could. I’m just trying to use somebody from a younger demographic, but there’s also a legal problem because in a number of countries, there are rooms in, usually in the copyright law that say circumventing, an access control is what lawyers call a Tort. It’s a legal wrong, it’s an infringement of copyright. So just breaking through the technological protection measure to get access to what is usually very simple software, is itself prohibited in the legislation.

Prof. Graeme Austin:

Now there are various carve-outs and exceptions. In the United States, every three years, the Copyright Office can create rules to create exceptions to that prohibition. And it’s recently promulgated a rule, creating an exception essentially for repairs, for some goods. In the Australian Copyright Act, if you stand on your head and read it, it’s just the only way to do it. It says that these are not technological protection measures for the purposes of the prohibition. New Zealand, the one in Europe is just incomprehensible, that just requires a whole lot of voluntary agreements with industry to be able to… They expect this beautiful world where product manufacturers will help us all access the… Help us all break through the code. In New Zealand, we’ve got on the books, legislation that will align our law with the United States and create the prohibition, it’s not enforced. But there’s also again, there’s a carve out for TPMs that help make things work, essentially.

Prof. Graeme Austin:

The thing that I find really interesting about this is, the [Blank Metal 00:00:50:26] Law in those jurisdictions probably doesn’t prohibit the right to repair in a lot of cases. So why are people concerned about this? I think if you’re really thinking about a right, you have to think about imbalances of power in the market place. And so if you’re a small repair shop and you’ve been told that you have circumvented an access control contrary to the law, and you get a nasty cease and desist letter from the lawyer representing the giant manufacturer of goods, what are you going to do? You’re going to settle. You’re going to say, sorry,[Latin Mea culpa 00:00:51:12] And stop doing what you’re doing. And so I think that in those jurisdictions I’ve mentioned, the law suffers from a lack of clarity.

Prof. Graeme Austin:

And I think, and I would just end on that point, I think that lack of clarity speaks a lack of commitment to the right of repair. If we were genuinely committed to the right of repair, the law will be drafted in the waive state. It’s blindingly obvious and we’re going to discuss this in the workshop. It’s blindingly obvious that this kind of law has nothing to do with and should have nothing to do with ordinary consumer products. It’s a useful tool in some parts of copyright law, but it has nothing to do with making a pin work. And that’s one of the things that our politicians need to be committed to.

Prof. Graeme Austin:

Oh, sorry. One more final point on New Zealand. New Zealand is flourishing with a Right Of Repair, very tentatively. In the meantime, the Ministry For Environment has put forward a very interesting discussion paper on Product Stewardship.

Prof. Graeme Austin:

Now this in itself shows you something about the politics of this area. We’ve got the Ministry of Business Innovation and Employment that is in charge of Intellectual Property. But the Ministry For Environment that has promulgated this very interesting set of commitments around Products Stewardship. What we don’t have and I think what is desperately needed is an all of government response to the area that looks at every area that impacts the right to repair and requires the ministries responsible for the various legislation to get together. The Productivity Commission might be able to achieve something like that in Australia, but that’s what’s really needed if we are genuinely committed to Right To Repair.

Leanne Wiseman:

Thanks, Graeme. And Guido, you got your hands in the repair itself. Can you tell us a little bit about your day to day operations and also what you see are the barriers to your repair and recycle?

Mr. Guido Verbist:

Sure. Yes. We indeed have the practical side on a day to day basis front of us. So the centre I’m managing is called the Bower Reuse and Repair Centre. And it’s not for nothing that we call it reuse and repair to distinguish ourselves from the classic recycling centres, because for us, recycling is actually not good enough. If you know about waste hierarchy, where a lot of governments, local and state, talk about it as best practise is reuse and repair, but not that many funding and operations are actually looking at that. Most of the waste management happens at the lower level, which is just land filling and recycling at best. And even there since the China Sword policy came into place, they realised they’re actually not equipped in Australia to do some onsite recycling. So it still goes to Malaysia now and other places. But we have always as the Bower, distinguished ourselves from that, because we look at those items, not as waste, but as new products that they can have a new life.

Mr. Guido Verbist:

And for us, it’s all about an environmental programme behind it and not just employment or income streams like Salvation Army will do for a revenue for all the social welfare programmes they run. Because of that approach, we have been investing over the last 20 years since we exist in repairing and reusing items to refurbishment of items. And we have, in-house, now, experts that do electronic appliances to woodwork or furniture, bikes, phones, computers, clothing, and we do that for 20 years, but since say five, six years, there’s a growing interest. And we have picked up on the interest from overseas as well in Europe and into U S with the Right To Repair movement, but also the repair cafes, which we have introduced in Australia, now you see them at many places. And we pack a face, basically sharing the know how about repairing your own item that we do with you so that you can learn to do it yourself. And there is a growing interest for all of that.

Mr. Guido Verbist:

But throughout that process of doing repairs, we also have seen more and more protection mechanisms that have been introduced by the manufacturers. For the e-waste, for example, the planned obsolescence is well known, it’s deliberately designing products that you can’t open them. For us, it’s very simple if there’s no screw, it’s not meant to be opened. It’s meant to be thrown away, that’s its end of life, that’s how they designed them. Now there are tricks and expertise that you can get to go around that. For example, this phone as well, has no screw but there are ways to open it. You have to heat it up. The glue has to be removed. I just simply can then undo the seal, but you have to do it in a clean way that you can seal it back and save again.

Mr. Guido Verbist:

So those, there are those ways that you can do it, and that’s what our people are experts in. But what we also realise is that this is not going to happen spontaneously the change or to having the right to repair our own goods, to be able to do ii in a systematic… In a professional way, so we have been looking at what happens overseas in terms of Right To Repair initiatives. And we think that there are some interesting examples overseas that could easily be implemented here. And that’s what our petition is about on our website. There are two examples I can give. In France, they have introduced legislation that every manufacturer who introduced in that country a new product has to put, on their packaging, for how long they will provide spare parts. And it has to be a minimum of two years plus also handbooks for repair that you can do it yourself.

Mr. Guido Verbist:

And that of course makes a big difference for a consumer that you know that you can actually keep it for a longer time, that you can repair it, that the spare parts are going to be available for a certain time. So France introduced it, Germany has taken over, there are a few more countries that are coming. And then there’s a European legislation, although that’s still only a directive it’s not yet mandatory thing, which is in France, the case. Another example, in Sweden is making repairs tax deductible. They have done it, in the first instance with white goods. That if you go for repair with your white goods, you can actually deduct that cost from your taxable income, which creates an incentive. And it makes sense to do that because repairs is actually very labour intense, for an electronic or for a piece of furniture, it’s very labour intensive to do that right.

Mr. Guido Verbist:

And so making that tax deductible, allow it to be at least competitive with buying a cheap import from overseas. And that’s what we think should happen here as well. And that’s what we ask in our petition to Josh Frydenberg, as a treasurer, to consider similar initiatives here in Australia. It shouldn’t be necessarily the exact same legislation as overseas, but to have that conversation. And it’s true that some like Julie Owens from Parramatta has picked up on it and has asked the government to have that conversation that that should happen here. So we are quite hopeful.

Mr. Guido Verbist:

I actually think that whether the government will support it or not, it will happen at some point because there’s almost no alternative to it. And for the simple reason in one way that, Europe lead this and the U S as well and the manufacturers will implement those legislations there and will then have no alternative than to implemented here as well. But it could take many years before we are there and I think these kind of conversations, these debates and petitions is important to get that conversation going. That’s a bit of our story and why we are sitting here between professors.

Prof. Graeme Austin:

[inaudible 01:00:25] Yeah, I mean, it’s worthwhile noting that there are very real threats to independent repairers in Australia under Intellectual Property laws. Tim Hicks runs a website called Tim’s Laptop Service Manuals, and he posted free and accessible PDFs of manufacturer service manuals online. In response Toshiba’s lawyers sent him a cease and desist letter saying that, by posting their service manual up online, he had committed Copyright Infringement and he was also in breach of Confidential Information. As a result of those threats, he had to take down that repair manual, which would enable not only him, but many other repairers to fix that particular laptop series. So it’s not merely a theoretical problem. There are very real threats to repairers under certain forms of Intellectual Property that don’t have explicit recognition of the Right To Repair like Copyright Law and Confidential Information.

Leanne Wiseman:

And Trademark law. For example, you can’t put a sign up to say that you’re an iPhone repairer because you’re using the iPhone as a trademark. So there’s examples, I believe you can probably talk more about this, about the trademarks of the manufacturers being imprinted on the very small parts. And so if you actually get access to some of the spare parts, you’ll be infringing trademark law by inserting them, perhaps you can talk about.

Leah Chan:

Oh, that’s right. So, going back to Apple, that’s exactly what Apple does. Apparently, and I’m not a tech person either, but reading up about it when you have your screen repaired, when you have your cracked screen, sort of the ubiquitous problem that everybody has, and you decide at some point that you don’t want to risk having your finger scratched by your cracked screen, you try to go get it repaired. Well, apparently there’s a connector that connects the screen to the inside and it so happens that while there are spare parts for that, that work just as well, the original part works the best. And on that original part, Apple has placed a very tiny mark that nobody else can see, but that allows them to ban or stop imports of legally purchased.

Leah Chan:

So some repairers are able to find distributors outside of their jurisdiction, where they’ve purchased in bulk, these spare parts legally, and then in breach of their contract with Apple, they decided to resell it. But that’s not the importer’s problem, that’s the distributor’s problem that this part is out here. When it’s imported, Apple is able to use that mark to stop that shipment at the border and seize that. And so then that impacts, as Matthew was saying, that impacts the independent repair, because without that part, they can probably still do the repair, it just won’t be as good as they would like it to be.

Leanne Wiseman:

What’s also interesting is, in our design law in Australia, we actually have repair defence. We have Section 72 that says, you can repair parts to your design product. And for the first time, that came into our law in 2003, and it’s only recently that we’ve had that section tested in the court. And so we’ve got a decision that’s come out and actually looked at the repair defence and how it operates. What’s really interesting is it was about car spare parts and it was basically a company that was providing spare parts to, I would say, this is not a technical term, “Soup up your cars to make them a bit flash.” So, and the issue was, there were these spare parts being used as genuine repairs, or was it really an addition to it. So what was really interesting is that the company providing these parts actually had lots of notices.

Leanne Wiseman:

And when they provided the spare parts, there was lots of information that was also provided, saying these parts have been provided for repair. And because that was very clearly what they were able to do under the legislation, but they knew that people are using them for decorative purposes for the vehicle, it wasn’t really genuine repair. So that particular decision, although it was testing the repairer defence, was all about the onus of proof of, did the people who were supplying the parts… With the company who alleged that they were not repairing, could they discharge that line as improve, when they sold those parts, that they knew that they weren’t going to be used to repair.

Leanne Wiseman:

So it all turned on that knowledge, essentially, which is not really satisfactory in terms of the test of the repair defence. What’s interesting, we’re saying with design, we have repair defence, but if you put a computer programme into that design product, with the Tech Protection Measure over it, the Tech Protection Measure will override that design repair defence anyway. So you’ve got Copyright trumping a Repair Defence within design law, which is there for a purpose. So it’s really interesting all facets of Intellectual Property from Copyright to Patent law, to design as well as trademarks potentially expose when we’re talking about the right to repair.

Leanne Wiseman:

What I thought I’d do is provide an opportunity for a bit of exchange. We have microphones in the audience because you probably heard from us a little bit of a snapshot of what the Right To Repair Movement is both internationally and what it means, but we’d like to hear from you and from your stake in this debate, whether it be as a designer, an independent repairer or a DIY repairer. Perhaps what challenges you see to your right to repair, or do you not find that repair is an issue, for example? Perhaps if there’s any questions that would be great. We have got a mic, we are recording this evening for those people who couldn’t attend and I do apologise, Michelle Maloney, who was going to join us tonight. She’s obviously unable to, but there were other people who were hopeful upcoming, so we are recording so… If you would like to introduce yourselves, that would be great [crosstalk 01:07:33]

John :

My name’s John [Tenakh 01:07:34] , I live in Ferny Grove and I’m a DIY repairer. And so by preference, if anything breaks, I’d try and fix it myself, not always successfully, but I wonder in that DIY situation, to what extent we are exposed to this legal stuff, you could unknowingly use a part you weren’t supposed to use or something. I mean, there’s a lot of information around from other people doing the same kind of thing, Sera sharing on YouTube and generally, these underground…

PART 2 OF 4 ENDS [01:08:04]

Speaker 3:

… Dubin and generally, there’s an underground of information supply, which is very helpful. So as a DIY person, you try and figure it out and get it done. Does the legal stuff only apply to people who are doing it commercially and making money out of it? Or do DIY people have to be careful of that as well?

Leanne Wiseman:

Oh, [inaudible 00:00:27]. I’ll turn the repair question to you first.

Mr. Guido Verbist:

Yeah, I think it applies to everybody those legislation and the impact is there for everybody.

Speaker 4:

[inaudible 01:08:35] cease and desist later.

Mr. Guido Verbist:

Yeah. But there is a case here in Australia and even with, again, Apple court case, ACCC versus Apple, because Apple had been what they call breaking some phones, because people have tried to open it and they don’t want that. And that leads to what was mentioned there. That there’s a secret system that they have built in their phones that they can figure out who is doing that and then they block your phone. But the good thing is that ACCC went to court and they won it. So Apple had to pay 9 million to I think it was 275 people that were impacted by that, so there that’s a positive example.

Mr. Guido Verbist:

But it is true that you need to know what to do if you want to do your repairs yourself. And we look at it more from a safety principle for ourselves and for the people for whom we do it, than any legislation. Because the legislation is not really to the kind of repairs we do applicable. The things with the IPs intellectual property is a stage beyond us because we don’t even have the equipment to do that kind of more sophisticated repair. So, the more basic repairs we can handle confidently, we will not be fined for that sort of things, but it is more important that we do it in a safe and a responsible way for the clients who come to us. And that’s in itself also an issue because there is actually, I think, a need for certification that the way we do repairs would be considered responsible and safe, and that we can have a label like in some European countries exist already.

Mr. Guido Verbist:

That you then can say, we have followed the right procedure. A good example of [slowly’s 01:10:34] iFixit. You might not, if you do electronic repairs, but iFixit [inaudible 01:42:03] is an American initiative. And they put all manuals that they can get their hands on, on their website and all the special tools that you might need sometimes that are not easily available, to have kits for it that you can order. And that helps you to do it yourself. So, I would say continue but make sure you do it in a safe and responsible way.

Leanne Wiseman:

I’m sorry. I’m sorry. Sorry, yes.

Speaker 5:

I just like to continue this one with John and his repair stuff. Because he does a fantastic job. And two things came up in relation to cars. So one, we’ve got two cars and one car stopped being usable because the windows wouldn’t go up and down, they stay down. And that was very unsafe. He got into it and got it all out and established it was a little mechanism, which it turned out this little thing, they wanted to charge about $800 for it, which was crazy. And because he can do electronics, he got in and he took all the electronics apart to have a look at it. And what he found was that now, what they’re doing with the electronics in cars, is instead of putting wires through a circuit board and soldiering it, they glueing the board with a very cheap glue, which comes off quite quickly.

Speaker 5:

So a thing like a car, which you think will wear out because of the motor breaking down or you’ve crashed it or something, actually wears, becomes unusable because it’s cheap glue in the window thing that makes the window go up and down, has fallen apart after six years. And your car’s no longer usable. That was one. And then the other, we bought a new secondhand car. And when I was a bit… I thought, “I think there’s a noise in this.” And we tried to get it checked under warranty. The only way it could be checked was by Nissan Australia, putting it through their electronic device, which they then said all that has to be, the electronic signal has to be checked by somebody in Japan, who denied any, who said, “Oh no, there’s nothing wrong with that.” Now there’s absolutely no way we could prove or disprove the electronic signal in Japan. And that was it. So we couldn’t get it done under warranty.

Leanne Wiseman:

No, I think that that raises a very important issue. The access to the information or access to the software, the diagnostic software, it’s part of the problem. So, if you look into the ACCC inquiry into the car repair industry, some of the findings of the ACCC was essentially around that, that even a skilled repairer, unless you were paying hundreds of thousands of dollars, wouldn’t be able to get access to that diagnostic technology to find out what is even wrong with your car. So, that whole idea of not even being able to begin to diagnose the problem or relying upon them to tell you what the problem is because you can’t double check it. And that’s part of that.

Leanne Wiseman:

I think when Graham was speaking earlier about tech protection measures and whether you’re able to break them or not, I think legally and what the consequences might be in terms of the cease and desist letter. I think what’s really important, in some instances we know, particularly with motor vehicles, is that any attempt to tamper with the software will actually shut the vehicle down. So, it’s not a question that you’ll get a letter from a lawyer. You can’t… The thing won’t work. So sometimes the tech protection measures are so strong that the device itself will close down. So you couldn’t attempt to modify or repair.

Speaker 6:

And also the way the legislation is drafted, there are weird distinctions between the software that makes the product run and the diagnostic software, which would be seen as a separate computer programme, probably not shielded by the defence that you need to be able to repair. And so, all the way through to, to answer your question, all the way through this area, the legislation has been drafted in a way that would give lawyers headaches. Which is not how you go about crafting a right that we desperately need for not only just for consumers, but for the environmental scourge that those kinds of business models create.

Speaker 7:

So, I’m from Griffith Film School. First of all, thank you, terrific panel and respect to my colleagues who put it together. I’d not heard of Right To Repair and it’s powerful. But in this summer, when we all know the hell that has broken loose around us, it suddenly strikes me that we need a stronger legal base than Right To Repair. It’s like planned obsolescence of which I think this is a version, just should be illegal. Is there any international law framework that allows, we, the people to say this, “We need products that are built to last, where there is the means of repairing them. And if you won’t make them, not only, we won’t buy them, but…” I mean, am I dreaming or is there some legal paradigm that could go beyond the Right To Repair?

Leanne Wiseman:

Well certainly, the Right To Repair is one. I think there’s so much more, as you say there’s, Matthew will probably have some things to add here, but the idea of trying to reach a truly sustainable society in that sense of what can be done, shouldn’t manufacturers say what a lifespan of their products are, for example, upfront, “This will last for five years, whereas this product may last for 10 years.” And give credit to consumers that if you are prepared to pay the extra for a product that will last for 10 years, because you know that that is better value and that will last and that you perhaps can repair. So yes, there’s a whole raft of things around product stewardship in terms of life cycles. Matthew, I’ll open to the panel really-

Speaker 7:

Sure. I- [crosstalk 01:17:55]

Leanne Wiseman:

Exactly. [crosstalk 00:10:01].

Prof. Matthew Rimmer:

Well, in terms of the international frame work, I’m going to ask Leanne to talk about the sustainable development goals. “Can’t play a really important role and at an international level, that informs the work of various different UN agencies. Nation States within the European union, for instance, take that very seriously and try to think about how their laws and regulations and policies are informed by those goals. And the three noticeable visiting, Finland and Sweden and Norway and Denmark. What an impact that has.” By contrast, I think the major parties in Australia have been in some ways quite hostile to the UN Sustainable Development Goals. So I made a submission to the Federal Parliamentary Inquiry into how Australia should implement the sustainable development goals. And what struck me from that process, was the disinterest and the apathy of the major parties in terms of taking on board those principles and thinking about ways and means in which those principles could be adopted.

Prof. Matthew Rimmer:

And it’s been very striking that the great champion of the Right To Repair in Australia has been Shane Rattenbury, the ACT Attorney-General. And he has tried to pitch the Right To Repair in a stronger form. So he’s not being content to think of it as a merely technical exception in intellectual property, but he’s tried to pitch it in terms of an expanded form of consumer rights. He’s trying to think of it in terms of dealing with questions that they waste, but he’s also been very much concerned with sustainable innovation.

Prof. Matthew Rimmer:

So, he’s been trying to encourage other state and federal ministers to join within, to try to take a much more national approach to those sorts of matters. But in some ways I think you’re quite right. Australia in some ways is very much wedded to unsustainable development and looking at the statistics earlier, we’re very greedy in the way in which we use all sorts of different resources. And we have very much a junk economy in many different ways, and we’re not necessarily very much concerned about a circular economy or a repairer economy or implementing certain forms of sustainable ways of using resources. So I think there’s a big disparity there in terms of the debate that we’re having about the Right To Repair in Australia and what is actually happening in terms of the European Union.

Leanne Wiseman:

I should say, we did actually invite Shane along tonight because he’s been so instrumental but unfortunately he had a conflict, so he couldn’t come. But I think your point, [Trishi 00:12:52], is so true but, and I think what is also important, we have Samuel here, who’s speaking tomorrow at our workshop. But if you talk to people in developing nations, repair as part and parcel of everyday life by necessity. Even when you speak to farmers and people in rural communities, they don’t have the luxury of going to replace or having authorised repairers at their doorstep. So, it is by necessity. So, it’s very much a first world problem of this linear economy that with consumption and waste. Whereas we have developing nations who are taking, we see the piles of discarded e-waste and essentially people are taking the copper out of machines at great risk to themselves, for example, but there is very much a repair ethic in developing nations and rural and remote communities by necessity. Sam may want to say?

Sam:

Yeah. The same way we were seeing like races [inaudible 01:21:55]

Leanne Wiseman:

I’m sorry, you have what?

Speaker 3:

[inaudible 01:21:59].

Leanne Wiseman:

I think it’s on. Just talk closer.

Speaker 3:

Just stand up entirely.

Leanne Wiseman:

Yeah.

Sam:

Oh yes. Pretty much the same way that in Europe we’re seeing Right To Repair being linked to environmental questions. And, for instance, in America being linked to civil liberties and dependence of repair shops. In developing nations it’s much more a question of access to certain goods and certain technologies, because for pretty much like the bulk of South America, multiple items, they are very expensive. Sometimes they take two or three years of minimum wage, just to buy. So, it’s not matter of for them, would you buy a new one. Repair, it’s always the first option. They need the repair. And ever since, for instance, like the trips that we’re in, which is I collect property agreements that create standards around the world, those countries are also responsible to take care on that. So right now, for in some developing nations, there are multiple people being vulnerable to, from one [inaudible 01:23:23] to another being arrested, because they’re engaging to repair against IP rights and against the patience of the owners.

Jennifer:

Hi, it’s Jennifer from formerly, from QUT health social work, nursing background before, and this is awesome. I have another picture from the health perspective maybe that’s not in your department, but I see all this overlapping in health. In artificial intelligence, digital health and NDIS, where does that sit in with all that overlap, like 3D, all of that, for consumers rights, even in say broad range of demographics and geographics, especially in disabilities? Yeah.

Prof. Matthew Rimmer:

Yeah. There’s some really interesting work being done in terms of trying to use new technologies to make affordable medical devices and prosthetics and technologies. I had a chat to MSF who have an experimental 3D printing lab at a refugee camp in Jordan. They get lots of different patients from the region who have suffered injuries from conflict or landmines. And they’ve been using 3D printing to really try to develop natural looking artificial limbs. And that’s been a really interesting project. I had a chat to some doctors in the Netherlands, in [Nieuw Gem 00:01:25:14], and they have been trying to use 3D printing and bioprinting, both for patients in the Netherlands but also in Sierra Leone. So they’ve been very interested in how they can have affordable access to medicines using open source technologies. In Belgium, I came across a really interesting group who are very interested in making accessible technologies for those with disabilities.

Prof. Matthew Rimmer:

And they were adapting and using, with 3D printing and various other technologies, to make accessible technologies. But often there is a clash with a much more proprietary approaches in relation to technology, so we know in relation to medical devices and medical technologies, that there has been very strong proprietary control in relation to them. And also in relation to things like drugs and drug testing and other life technologies. Sometimes there have been fights over the Right To Repair. I came across the case in the US in which the Right To Repair had been invoked successful in relation to a medical matter.

Prof. Matthew Rimmer:

A lot of the big medical associations representing industry groups have been opposing the Right To Repair in the United States, arguing that a lot of the Bills that have been discussed by my colleague, they’ve been introduced, they’ve been saying, “Well, you should leave out medical matters. That should be governed by The Food and Drug Administration instead.” So there could be a bit of a clash there in terms of the various rights and defences that are available in those territories. But there’s some really interesting considerations at play in relation to health and medical matters. And what happens if you have a device that becomes faulty and needed to be repaired, it becomes a life and death matter in those circumstances.

Prof. Matthew Rimmer:

So, and sometimes you have issues particularly around product liability. What happens when a medical device is faulty? So Johnson & Johnson was recently sued in a class action for making very defective devices. Medical companies are aware of issues around product liability and safety. And that becomes a quite interesting topic. Provides debates over repair and depicted products.

Speaker 8:

Right? And so just at a note to Matthew’s comment about the medical device companies actually have been quite successful in the United States, lobbying to have an exception, a very explicit exception in the various state laws. So California, for instance, their version of the Right To Repair Bill, it specifically exempts medical devices and arguments being product safety, irreliability. But the problem I think is where then you have medical devices in the rule, underserved areas and same problems as farmers and agricultural equipment, where life and death is at stake. So that’s quite problematic.

Speaker 8:

Another interesting area that we haven’t touched upon yet, but was recently raised in the United States, is the military equipment. That an officer in the United States Army wrote an Op-Ed, an opinion piece, that gained quite a bit of attention, basically saying, repair’s a problem even for military equipment. That trained expert technicians are not allowed to repair military equipment in the field when they need it. And that is a huge problem at a greater level than just my iPhone, but not to diminish our needs and really the human right almost to access to the internet, but that has been something we we haven’t touched upon, but I think is also out there.

Leanne Wiseman:

I think that’s really significant. I currently have a student who’s actually looking at the Right To Repair in the mining industry. And it’s exactly that same point. There’s massive big machines, very highly skilled technicians who work in the mines, are not allowed to touch the machines and authorised agents from the manufacturers who come onto a mine, often have to undertake a two or three day health-and-safety course before they’re allowed to set foot on the mine. So the administrative time and expense of getting through those hurdles, just to allow someone to visit the mine, is similarly a challenge.

Speaker 8:

Nevermind a war zone or conflict zone.

Leanne Wiseman:

Yeah. Exactly.

Leanne Wiseman:

Sorry, Tal and Elena?

Tal:

Hello, thank you to the panellists for speaking on a very interesting topic. I have a… My name is Tal, I’m a student at Griffith University. Possibly the most interesting thing about me is that my best friend and flatmate of a year and a half was an Apple technician. And every day he would come home from work with hilarious stories about people coming in with all sorts of defective devices and the fact that they would be forced to come to him to pay the large amount of money they would need to fix it. And particular my 82 year old grandmother who broke her iPad screen and called me and said, “Does he think that I can pay someone, third party, to fix this for about $30?” And he said, “Yeah, listen, no, it’s going to be a $300 repair or a $400 purchase of a new iPad.”

Tal:

And she had to go with that because he was the expert in the field. I have a very half baked idea that came to me while Graham was speaking. And I’m not sure if this applies at all about, whether the Right To Repair extends to the insulin issue in the United States, where it goes to pharmaceutical companies and their IP over the recipes, I guess you would call it, or the processes to make insulin. And then people who are trying to create home brews. So, a question of whether the medical need is so great as to make direct access outside of company protection, is actually legally viable. I don’t know who in the panel can answer that best. That it’s…

Prof. Matthew Rimmer:

I mean, they’re two slightly different things. I mean, I think in relation to Apple, the ACCC took action against Apple as was mentioned before, over making false and misleading representations to customers with faulty iPhones and iPads, about their rights under the Australian Consumer Law. And they had to pay $9 million in penalties. So the ACCC have been very concerned about that issue. I would argue that really the ACCC need to go further and think about some of their powers under Competition Law. And I think we’re really talking about anti-competitive conduct in aftermarkets, but Apple are very well resourced. So that would be a very significant commitment from the ACCC to take on Apple. I don’t like why it’s in the United States. The Federal Trade Commission has been having an inquiry into the Right To Repair and has asked for empirical research and lots of submissions.

Prof. Matthew Rimmer:

The Open Markets Institute said really, the Federal Trade Commission has considerable powers under anti-trust laws and the problem is that they’re not utilising them. So, that dialogical process was all very well, but really they could be taking a punitive action against Apple and some of the other big IT companies. The second point, I think, was really getting to the question of confidential information and trade secrets and is true, various different forms of IP owners do rely upon trade secrets in the medical industry and the biotech industry, as well as in relation to IT. There have been stronger and stronger remedies that have been provided for both under civil law and with new kind of criminal remedies that have been introduced and opposing a lot of the Right To Repair legislation that has been coming along. A number of the industry associations have been arguing that they would allow for the reveal of proprietary information.

Prof. Matthew Rimmer:

So, they have been trying to defend themselves against the introduction of that legislation. I think that would lead to an impermissible disclosure of trade secrets information. So that gets you into an interesting area about, well, what disclosures should be permitted under the law to serve other public purposes? But there have been cases in which companies like Toshiba, which I mentioned before, have invoked breach of confidential information against repairers, trying to make public certain critical information. So, it’s an ancillary form of intellectual property that is becoming more and more important. And with stronger protections being afforded in various jurisdictions, you might see more actions in relation to breach of confidential information in the future as well.

Tal:

A slightly different take on that. And I loath to be the author of the downer in the room, but opioids rightly remain regulated substances, as would pharmaceuticals that are powerful enough to solve addiction issues and the tragedy of addiction that we’re seeing in many States in the United States. And it’s important, I think to bring into the room that realisation of a Right To Repair would not lead to a completely unregulated space.

Tal:

I was sharing with the others. I flew across the ditch in a Virgin Australia plane, and I’m quite grateful that repair of aeroplanes that go across the ocean are subject to civil aviation regulations about who can repair them under what circumstances and so on. And I think in the pharmaceutical context, those kinds of issues would come up. They would certainly not go away in the medical device area either. What I think it requires, is very careful thinking about when there are unnecessary, unfair and abusive restrictions on the Right To Repair. Some of those restrictions are going to serve very important societal goals. Others often ar just protecting business models.

Leanne Wiseman:

Oh, hi, sorry, Gemma. And then Elena. Sorry. Go on. Sorry.

Gemma:

Hi, my name is Gemma Rodriguez. I’m a PhD student at Griffith University. I’m sorry, I’m a bit nervous. I’m listening to you all is very interesting because I’m from the Philippines and I learned so much. I understood why, sometimes in a year, Australians throw things, everyone puts stuff outside their house where a rubbish bin, not a rubbish, someone collect from the council. So you see fridges, television. The only thing you don’t see is car. But I never really understood. And I thought, “Wow, this is a country where they throw everything.” And listening to you, I understand it now. And so reflecting back to my country, I’ve never really heard of the Right To Repair. I mean, I’ve done human rights work, the right to life, the right to leave, but not all Right To Repair. So if the Right To Repair only advocating in developing world, because I have to tell you a story. I don’t know if I broke a law in Australia, but I am a bit proud because two years ago I actually fixed a lawnmower.

Gemma:

It was given to me and it broke because the grass was about the same half size as me and I fixed it because I could not afford to actually fix… You know? And I think the guy who said, “This is an old mower. It’s best to get a new one.” But I had to go fixing it. What I did, I took every part of it and I took a photo, because I’ve never done this. So I could have one, number one, but two, what it goes. But I actually, eventually I fix it up to six weeks and I’ll actually said I should become a… Anyway.

Leanne Wiseman:

That’s a perfect example of being able to fix. I think that’s fantastic.

Gemma:

But only because I grew up in a society where we fix everything. We don’t want to see our couch being thrown out. Yeah, we just fixed it. So, I think Australia has a problem because you just keep making things and when it’s not good, you throw them out and then it lands, actually… I don’t know, but it’s from Australia. Many of these things are in my country and then if we can’t repair products from other… Like Apple, then we also have a problem because then we can’t fix it. But we are also a bit smart. I know a friend of mine has a BMW, but the engine is Toyota. And I understand now why but… I don’t want to talk about why but is this thing only advocated in developed world, the Right To Repair?

Mr. Guido Verbist:

I think what you see, there is a repair cafe movement as well, in addition to the Right To Repair movement. And I think what you talk about, I would see that as an example of the repair cafe movement that has grown in the more industrial world, it actually started in the Netherlands and then all of Europe and the US and now Australia as well. And I think it’s not for nothing that it is in those countries that it start because those countries are the wealthier countries, that have a culture of throwing away rather than repairing. And a lot of knowledge about learning how to repair has been lost over generations. Peoples in those countries don’t know it anymore, which is different in terms of like in Africa, in the Philippines, in Latin America the same. So, that’s why those movements grew up, come from the more industrialised countries like Europe and in Australia, as well.

Mr. Guido Verbist:

And it’s true. Australia has a culture throwing away. A big one. We have been saying, I think you said at the start off your introduction, 23 kilos of electronic waste for Australia is thrown away per year. Clothing is 26 kilo per year, that every Australian is throwing away. So yes, we are one of the bad examples in that way, in that regard. And it’s important that this movement is growing here. I think the Right To Repair story is actually an additional layer. And I think in my view at least, it’s the industry is… It’s going a step too far. The manufacturers have gone a step too far by introducing all this IP and the software-

PART 3 OF 4 ENDS [01:42:04]

Mr. Guido Verbist:

Too far by introducing all this IP and the software where we have no access. Even we can’t is what I was saying earlier on. Then it’s that kind of issues, we have to stay out of it, because we can’t deal with that. But that is actually a more provocative thing that has an impact, not just in the industrial world. It has a global impact. And I think that’s why the Right to Repair Movement is growing and is becoming a strong player now to stop that, because that has a much bigger impact on everybody, globally, than the fact that you throw away your coffee machine or your small items that are still repairable.

Leanne Wiseman:

Elena?

Elena:

I’m Elena from the law school. And I’m much more into repairing, particularly clothes, because my mother was a seamstress and she was Italian. But I have a question for you, Matt. You said initially that consumer rights groups were not supportive of the right to repair or haven’t gotten on board. And I was wondering why? Is it because of viability issues in case people are out there repairing. And just another quick question, if we’re moving towards electric cars, are they going to be more difficult to repair because of the technology behind what makes an electric car work? Or … ?

Prof. Matthew Rimmer:

Yeah, I think my point before was that the ACCC as a regulator has taken some action, but should take more action. I think in terms of the Right to Repair Movement in Australia, I think in some ways it’s still rather nascent. So there’s some individual repair cafes. CHOICE sometimes gets interested in questions about the right to repair, but we don’t really have the same well-organised civil society groups that we see in the United States and the European Union. In the United States, in the various different battles that are going on, you see the Electronic Frontier Foundation, I Fix It, the Repair Association, a public interest organisation, their sense of being a broader alliance. Some of the cultural groups that Leanne was talking about. So I do think there needs to be a critical mass of a coalition to really take on. the very well-funded companies and organisations representing industry groups who are opposing the right to repair. So I think that’s a bit of an issue in Australia. We need a better level of organisation to push through the right to repair.

Prof. Matthew Rimmer:

Just picking up the question before there is a global movement for the right to repair and to try to accelerate the sustainable development goals. So the United Nations Environment Programme has argued that there should be innovation centres and accelerators focused upon pushing for the sustainable development goals in various different ways, to have places that can bring together the community and government and industry to realise some of the goals like the one dealing with the responsible consumption and production. And David R. Boyd, who’s the UN Special Repertoire on Human Rights and the Environment, has a series of reforms he’d like to see to promote a circular economy or action.

Prof. Matthew Rimmer:

Consumers can take action that governments can take an action that businesses can take. So he really sees the need for some sort of global action to take place, to bring into function a proper circular economy. And he really says it’s very independent or interdependent in terms of the way in which different economies work with one another.

Leah Chan:

Just to follow up on Matt’s point, I think you might’ve been remembering that he mentioned the Consumer Technology Association … actually was a big group. It’s a big industry group. That’s not in favour. That actually opposes it, because their members are actually the manufacturer. So even though it [misnomered 00:00:38], it is consumer technology because we are consuming it, but they’re not necessarily in favour of us repairing that technology.

Prof. Matthew Rimmer:

But it’s a betrayal of their earlier values.

Leah Chan:

That’s right. Yeah.

Prof. Matthew Rimmer:

So they used to, for instance, argue for the ability of consumers to time shift and watch what they would like and would take on the IP owners. I guess my point was that they have betrayed those earlier ideals. And really then they’re acting like some of the big IT companies now, saying that they want locked-down systems.

Elena:

[inaudible 01:46:47] because of their-

Prof. Matthew Rimmer:

Their membership-

Leah Chan:

Their now membership. Exactly [crosstalk 01:46:52]

Prof. Matthew Rimmer:

But perhaps that become much more mature industries and think that those companies can benefit more from having very locked-down ecosystems in relation to their products.

Leanne Wiseman:

Can I just pick up your … Oh, Sorry Graham.

Prof. Graeme Austin:

Sorry. I think there’s an additional point to those excellent points. In one of the breaks I was watching the US State of The Union address, because I think it’s really important to expose yourself to the ideas of people with whom you disagree. It’s very healthy. And so people who talk about regulation and change in legal regimes emphasise that it’s extremely important to think about what will be lost. And this answers a question that you asked early on. What is it that will be lost? And some of that people will value dearly. And I think that’s where the resistance is. I’ve no sympathy for firms that want to lock us into very expensive repair programmes, et cetera.

Prof. Graeme Austin:

On the other hand, it’s absolutely apparent that in both New Zealand and Australia, a large proportion of the population love stuff. They love stuff. And they might also like the ability to go to the market and have the choice of buying an expensive printer with cheap ink, or a cheap printer with ink that’s locked into some kind of programme. They might be attracted to that kind of business … Certainly with safety. And safety, there’s a lot of credence and faith that is associated with safety issues that may or may not be a crock that’s sold by the firms. But they’re attracted.

Prof. Graeme Austin:

I’ve called it elsewhere the “Walmartization” of culture, which is people are attracted to an awful lot of the things that cause problems for the environment and problems for realising the right of repair, because if you if you had the right of repair in the printer context, you’d say cheap printer, expensive ink, that’s not going to be in the market. Now, I agree it shouldn’t be in the market, but lots of people think it should be. And so we can’t dismiss those people as labouring under false consciousness. We actually have to take them seriously and say, “This is where the friction is to realising that right of repair.” So it’s not just companies. It’s consumer desire.

Leanne Wiseman:

And just to pick up your point about electric cars. I think what’s really interesting is that … and we’ve got one of my former students who did his honours thesis on the car repair scheme … Lucas. But we don’t need to have electric cars for there to be a problem to repair them. We currently have that problem with the telemetry that’s in cars. And I think Leah can probably contribute here that the sophistication that’s in cars now, unless you’re driving a 1958 Holden … Pretty much anything gives you a GPS map and that plays those ridiculous sounds when you turn your engine on and off, essentially, will have sophisticated telemetry.

Leanne Wiseman:

So what we’re seeing is that the question is now whether your car gets plugged into a diagnostic machine at your Golf service provider … And what we’re seeing in increase now is that information will actually be up in the cloud. So you won’t even be able to go access those repairs there. It’s similar to the farming issue, that your information and data is actually held up in the John Deere cloud. So you often don’t even see it. And you rely upon John Deere to tell you when something’s going to break or when you need it. [crosstalk 01:50:59].

Elena:

I know. There’s nothing wrong with my car. And they say, “You’ve got to bring it in.” And I said, “I’m not bringing it in.”

Leanne Wiseman:

That’s exactly right, because you’re tied into a warranty-

Leah Chan:

Right. And so actually what they’re doing, further to Graham’s point and what you’re looking at with the TPMs, is they’re using the entertainment system in your car to funnel the telematic information into the cloud, to wirelessly transmit it. And so that is protected by lots of layers of copyright, not including the digital locks, but also valid copyright protection to the entertainment, the songs, and all of the different apps they’re providing you. And then that’s what they’re coming out and saying, “Well, we can’t give independent dealers access to the telematics system, because it’s the entertainment system. It’s one and the same.”

Leah Chan:

The other problem, too, and this is part of design is a lack of standardisation. So we got to a point previously … And this was in the United States with the Massachusetts law and then the Memorandum of Understanding between the auto industry and the repair industry, that everything would be standardised in a onboard system. That you could plug any standard USB cable. You didn’t have to have anything special. You didn’t have to have special software. Just a standard, whatever the standard operating software was to diagnose the car.

Leah Chan:

And now, because the law didn’t actually reference … It references telematics, but not in a standardised way, manufacturers … all manufacturers have their own systems and they’re using it in a different way. And so now it’s not that the independent car dealers can’t get … They could pay lots of money to get access to them, but they don’t have that money. And so because of the lack of standardisation … So there’s a new law actually being pushed forward in Massachusetts that Massachusetts’ voters will get to vote on in March, to try to update the law. Part of it is requiring standardisation like we’ve had previously. So we’ll see how that goes.

Leanne Wiseman:

And I think what’s really interesting is part of the argument that John Deere put forward in opposition to the three-year exemptions around technological protection measures. Was that if you allow a right-to-repair in terms of agricultural machinery, people will use it to copy music and songs like that, that they play in their tractors. So there was this crazy, “Yes, they could copy copyright-content as well.” So that was quite a bizarre reasoning.

Leah Chan:

Absolutely. And so luckily, the Copyright Office … “You said there’s an overwriting repair issue here and we don’t see … There’s no evidence to show that farmers really just want to get access to the songs.” But that brought up a footnote I wanted to make to Graham’s remarks about the US Copyright Office’s exemptions. So two points. One, they’re every three years. And every three years they need to be renewed. Sometimes they don’t get renewed. For example, one of the exemptions was that you should be able to access your phone and port your phone number. Right? So you don’t have to get a new phone number every time you want to change telephone carriers. They were going to take that exemption away or not renew it. And so there was a whole kerfuffle over that.

Leah Chan:

In addition, this last round, which allowed for repair, only allowed for repairs for the person who owns or uses the device. It said specifically, “We do not have the authority to allow repairs or to say that we’re going to provide this exemption for independent repair dealers. We can’t say that. So if you want to go and use the repair dealer, you do so at your own risk.” And they specifically say that. They say, “We’re very sympathetic to it, but it’s not our place. That’s Congress’s place to do it, because of this digital lock law that you’re asking us. We don’t have that authority.

Leah Chan:

So they were very careful, and you could see very nervous to try to even move beyond what they thought they had authorization to do. So, that’s still a problem. They very specifically say, “We’re not authorising you to go to a third party. You can do it yourself. If you could figure out how to do it.”

Prof. Graeme Austin:

The students and others here who have come from outside of Australia, from developing countries. The United States lesson is also a very important lesson in terms of regulatory design, because … You can watch the US Copyright Office hearings on YouTube-

Leah Chan:

Yes. Very interesting.

Prof. Graeme Austin:

They’re really fascinating. Leanne’s alluded to them. But it’s an extremely expensive process. It’s very burdensome and there’s real experts, particularly from the Copyright Office in the room. Going through that process every three years is really burdensome on overtaxed governments. So if you’re thinking about regulatory design in home countries, you really don’t want the United States system. You want it hardwired. You want to do it once, and you want to do a well. Three-year hearings is just hopeless.

Leah Chan:

That’s right. They’ve tried to institute reforms to make things more streamlined, so that if they provided an exemption in the past what you need to prove or to show to renew that exemption has been streamlined. But you’re absolutely correct that and that’s been one of the arguments against having those exemptions and just say, “Let’s hard wire this into the law, because it’s expensive. It’s so resource intensive and wasteful.” Wasteful really.

Leanne Wiseman:

I’m conscious of the time. And it’s almost 7:30. Perhaps we could have the last one or two questions. Thank you.

Natasha:

Hi, I’m Natasha. Thanks, that was really interesting. I am interested in waste regulation and entirely ignorant when it comes to IP and copyright. Can you explain the extent that these tech-protection measures and taking away the physical ownership of goods … how that relates to products, stewardship, sorry, and waste regulation?

Leanne Wiseman:

How does it?

Natasha:

Yeah [crosstalk 01:57:19] So with the TPMs, you were saying that essentially they are taking away the physical ownership rights. So how does that relate to product stewardship? Noting, obviously, that there’s only one compulsory product-stewardship mechanism in Australia. How does it relate to waste regulation and product stewardship? Should it-

Leanne Wiseman:

Well, essentially the argument you’d see … inability to access or to repair those products places them into the recycle-and-waste stream so much faster than if there was an intermediary step. So the work that John and Rhodes are doing on product stewardship, in terms of making sure that products are durable and last longer … Essentially, you’re cutting those products off right at the very start, because there’s actually no ability to reuse or recycle, because basically they’re valueless. And they’ll literally go from being brand new, to unable to be used, to landfill.

Natasha:

So does that mean, though, in terms of the ownership transfer, that there is no transfer from the manufacturer to the purchaser? So say I walk into Officeworks and buy a Brother printer and I go home and I accept all of those things-

Leanne Wiseman:

Terms.

Natasha:

Yeah, which essentially say, “This is our product and you didn’t just pay 200 bucks for a printer. You paid 200 bucks to let us let you borrow it.” Does that mean that that printer is always Brothers’ possession?

Leanne Wiseman:

No. In the sense that this is the very heart of what … essentially, the end of ownership if you read Aaron Perzanowski’s-

Leah Chan:

Perzanowski. Mm-hmm (affirmative).

Leanne Wiseman:

Book. This is the idea that we do physically own it. We have title to the goods, but what does that mean in these days? So if I can draw an analogy with Facebook. People sign up to Facebook. Facebook will say you own all of your content. You own your photos that you put up there, essentially. But the licences that you agree to when you sign up to any social media platform are so extensive that essentially you give them the right to do everything and anything they want with that content. Even though technically you may still have copyright in them … but your licence is so broad and so wide that it means nothing too to have that residual right, essentially.

Leanne Wiseman:

So in terms of physical ownership, I physically own my car, but is there anything I can do with my car apart from drive it? Basically, no. And that’s the argument with the farm machinery … is that I spend a million dollars on these pieces of equipment, but really … They’re on my land. I would be better to have a rental agreement and basically drive it around than to invest that money, because can I do anything with it that I normally could? When you buy a book, you can read it, you can loan it to someone, you could rip a page out, you can edit it, you can draw in it. You can do all of these things with a hard copy book.

Leanne Wiseman:

But if you’re looking at an ebook with all of those restrictions on it … One of the favourite things, I think when we talk about tech-protection measures … One of the very early versions of Adobe Reader’s Alice in Wonderland ebook … If you read through the licence agreement when you got that ebook, one of the last clauses was you may not borrow this ebook. You may not loan this ebook. You may not share this with friends and you may not read this book out loud.

Leanne Wiseman:

So that is a perfect example of contracts and tech-protection measures that go way beyond what the copyright right right you have in a story, for example. So that’s exactly what we’re seeing, is that when you buy a product, you have that product, but you can’t do X, Y, Z with that product. So you own it, but do you really? And that’s that question, “What is ownership with digital goods these days?”

Natasha:

Mm-hmm (affirmative) Thank you.

Leanne Wiseman:

Perhaps one last question. And then we appreciate your contributions and times also.

Elenaka Lanadom:

Hi. My name is [Elenaka Lanadom 02:01:58] from QCA Design. And I’ve been working in that field for five years now. And I’ve been running in circles for various reasons with repair. I introduced a digital platform five years ago that gives access to users to services of repair, reuse, because I see repairs … a waste management practise. And back then I interviewed repairers and I discovered that the lack of legislation is not only related to the right to repair, but how we sustain repairs as well.

Elenaka Lanadom:

So a lot of them complained about the fact that with health and safety issues, it was way too expensive to create a space to repair, a. B, it’s very expensive to get apprenticeships, because of the health and safety issues. So that creates an extra problem in terms having more repairs, professional ones. And the third problem is there not any incentives for the young generation to learn how to repair professionally. So in that sense, we have a lot of incentives and easements in terms of recycling, but there are none in terms of repair and reuse. But, in that, I’m looking at Guido, because I know that you have that experience from-

Mr. Guido Verbist:

It’s correct what you’re saying. That’s our experience as well. And that’s the conversations we are having with the politicians and with the governments now as well. All their money in New South Wales, for example, sixty million dollars is available for waste management, but it all goes to recycling. There’s not one dollar available for reuse and repair. They make promises and they talk about it as if it is available for that purpose, but it isn’t actually available. It’s only for recycling and for illegal dumping that they want to stop. But for reuse and repair, there’s actually no money yet available. And that’s indeed a problem.

Mr. Guido Verbist:

And there’s no place where you actually can learn repair now.You need to do it on your own. You need to take you, you need to play with it, take some risk now and then. But that’s how we actually work ourself. We have been training in-house our own people. We can’t learn it elsewhere. We just do it ourself and bring in new people, and now we have a pool of close to 50 people that are all in-house trained to do all sorts of repairs. And that’s the only way that your connection keep going. But this is for the traditional type of goods. When you talk all the IP and the software programmes, then we have to pass, because that’s beyond us as well. We can’t do anything about that.

Leanne Wiseman:

And I think you raise a really important issue that we haven’t really spoken about tonight. But it’s certainly been raised by the repair community. And that is the issue of public liability insurance. [crosstalk 02:04:58] We’ve got tinkers who travel around Victoria who do a fantastic job repairing. They’ll go to a church hall and tell everyone in the regional town to bring along anything that’s broken, a clock, a sewing machine, whatever it might be. And they will have a go and help you repair that. But the hall will require them to sign indemnities or take out insurance. And so the availability and facilitation of repair is an insurance issue for a lot of organisations, and for a lot of individuals as well. So what are the insurance companies doing to assist people and organisations who are trying to assist with repair? So I think that’s a really interesting question.

Prof. Matthew Rimmer:

It’s really important not just to think about right to repair in a very limited, narrow, technocratic sense. I think to sum up, the speakers tonight have really been arguing that you need to engage in an array of regulatory reform if you want to boost a circular economy. We’re a little bit stacked with intellectual property academics, so there’s been a lot of discussion about intellectual property and the right to repair. And that’s really important to deal with. But alone that is insufficient. You also need to deal with consumer rights and competition policy. You need to think about waste management and environmental law and sustainable development. You need to think about international law. You need to deal with product liability and insurance and risk. Really, if you want to have a strong version of a right to repair, you need to dance across all those different disciplinary regimes and have a concerted approach that will promote a circular economy.

Prof. Matthew Rimmer:

And unfortunately, in Australia, many of our regulatory regimes are not very good at meeting that objective. Perhaps the European Union is a little bit more holistic in its approaches to bring together some of those different issues. But in Australia, we’re still dealing with the right to repair in a very ad hoc, fragmented way. And I think that’s rather problematic at the moment in terms of our approach to the issue. We’re often posing shadow solutions, because we’re perceiving the problem in a quite limited way in parts. We need to take a more European approach to the topic.

Prof. Graeme Austin:

Exactly. This is a very final question. If it’s a short one. I apologise for going over time, but I wouldn’t like to close down the discussion.

Fiona Fitzpatrick:

Thank you. I’m Fiona Fitzpatrick from the Griffith Law School, and it really has been a fabulous evening. Really interesting. So I do agree with Graham, and I think that the root of the problem is often that so many people work so hard to buy things they don’t need to impress people that don’t like. That’s one of the old adages that I think … The consumption is really the root of it. But also in relation to the right to repair, I think in developed countries, it’s a sustainability issue. But in developing countries, and even in central Australia, it’s a survival. They don’t have the cash to go and get a new product. I hope everyone has seen Bush mechanics. And if you haven’t, you really should, because it’s incredible how they keep cars going in central Australia with spin effects and string.

Fiona Fitzpatrick:

But I had a couple of just … and I don’t expect an answer … but just a couple of things that occurred to me. One was the warranty issue. And one was how, if you tinker with one of a product, then can the manufacturer void your warranty for the whole product? So, say our friend here has fixed his door … And I suppose I’m just hoping that you feed this into your considerations, and I’m sure you have. And the other thing that occurred to me is under the consumer law, something has to be fit for purpose. And I’m wondering whether anyone has tested fit for purpose in relation to the duration of the time that something should last for? They were just the two things that occurred to me.

Leanne Wiseman:

In terms of the Australian consumer law … We’re only discussing this today. So, consumer guarantees around fitness for purpose and merchantability, I think the issue is it’s more to do with lifespan. So yes, these products are probably fit for purpose and merchantable, but the question is for how long should they be? So before they are designed to essentially … the product obsolescence issue of … we know that they will fail up to 12 months, for example.

Leanne Wiseman:

So I think, there’s certainly work that can be done in the Australian consumer law with consumer guarantees. We’ve been talking about a right to repair. We don’t have a bill of rights in Australia, and this has already been said to us but, “There is no bill of rights in Australia. So how can you have a right?”, for example. There are many different forms of rights in terms of where the power to repair will sit, and how best to facilitate repair. The language of “right to repair” come from the US and essentially … But it’s really because it’s not so strong in Europe. And that’s what I think is interesting in the way that the Europeans have gone forward. It’s not such a consumer right, as such, but it’s more an issue of an overarching environmental sustainability, which as Matt said, goes to the sustainable development goals. And I think that has a lot more leverage in terms of rather than just a consumer right.

Prof. Matthew Rimmer:

Yeah. The ACCC did take on LG and they took on Apple. The LG litigation was very messy, but the ACCC did win on certain points in the end. But what they extracted out of that was that consumer guarantees exist in addition to the manufacturer’s warranties. So the ACCC have been trying to take on companies who’ve been trying to say that they don’t have any particular obligations beyond their warranties, by emphasising that the consume the guarantees continue on. But a lot depends on how the judiciary consider some of these matters in relation to consumer rights. I was [inaudible 02:11:31] by the recent litigation over Dieselgate in Australia, in which Volkswagen was sued for misleading and deceptive conduct by having to fake devices, to cheat their reports in relation to carbon emissions. But they also engaged in all sorts of misleading and deceptive advertising as well.

Prof. Matthew Rimmer:

And there was a settlement that was brokered and the judge said it wasn’t big enough and it needed be a larger settlement. I guess that case is heartening in the sense that the judiciary is taking the view that there should be strong action taken against companies who engage in misleading and deceptive conduct and make misleading and deceptive representations. And I think someone before was talking about advertising and consumer capitalism. If companies are engaging in misleading and deceptive representations by their Mad Men of advertising, they should be action taken against them by regulators, or through class actions. And in the Dieselgate case in Australia, there were both action taken by the ACCC and through class actions. So maybe consumers need to band together to try to take action in relation to their consumer rights in the future, in addition to regulators taking action themselves.

Leanne Wiseman:

Thank you. I might take this point to thank you all for coming. We really appreciate the interest, because for some people the right to repair … It still doesn’t really make a lot of sense. We have heard people say, “Oh, we’re not sure what you’re talking about.” So we’re really appreciative of having some interested people along tonight to hear more about it.

Leanne Wiseman:

And I’d really like you to join with me in thanking our international visitors and speakers and our panel members. And I should say particularly Leah and Taina are doing extremely well, because they have travelled halfway across the world and jet lag is hitting them … probably three hours ago. They’ve only recently arrived as well, but thank you to each and everyone for contributing tonight. And we have recorded this evening. So we will share that up on the website. So have a good evening and thank you again for coming!

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Professor of Intellectual Property and Innovation Law, QUT. #Copyright #Patent #Trademark #plainpacks #Access2meds #SDGs #Climate #IndigenousIP #trade #TPP

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