A Submission to the Productivity Commisson Inquiry on the Right to Repair
Matthew Rimmer, A Submission to the Productivity Commission Inquiry on the Right to Repair, Melbourne: Productivity Commission, 23 July 2021, https://www.pc.gov.au/inquiries/current/repair#draft Bepress Selected Works, https://works.bepress.com/matthew_rimmer/381/ SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3891319 OSF: https://osf.io/p48bq
The Productivity Commission is to be congratulated for producing a comprehensive discussion paper on the complex and tangled topic of the right to repair. Taking an interdisciplinary, holistic approach to the issue, the Productivity Commission shows a strong understanding that the topic of the right to repair is a multifaceted policy issue. Its draft report covers the fields of consumer law, competition policy, intellectual property, product stewardship, and environmental law. The Productivity Commission displays a great comparative awareness of developments in other jurisdictions in respect of the right to repair. The policy body is also sensitive to the international dimensions of the right to repair — particularly in light of the United Nations Sustainable Development Goals. The Productivity Commission puts forward a compelling package of recommendations, which will be useful in achieving law reform in respect of the right to repair in Australia.
There is a strong body of evidence that intellectual property restrictions do impact upon the right to repair. The evidence is more than merely anecdotal or patchy (as suggested by Draft Finding 5.1). There has been threats of litigation in respect of copyright relating to repair manuals. The High Court of Australia and the Australian Parliament have expressed concerns about the breadth of technological protection measures. There has been major litigation over the spare parts exception under designs law. There has been major litigation over patent law, and the distinction between repair and refurbishment. There has been policy discussion about repair information and trade secrets — resulting in action by Treasury and the Australian Parliament.
This submission agrees with draft finding 5.1 that ‘copyright laws that prevent third-party repairers from accessing repair information (such as repair manuals and diagnostic data) appear to be one of the more significant intellectual property-related barriers to repair.’ The submission would also contend that other forms of intellectual property do also create significant barriers to repair, which need to be addressed by policy-makers.
This submission agrees with the recommendation of the Productivity Commission in Draft Finding 5.2 to ‘amend the Copyright Act 1968 to allow for the reproduction and sharing of repair information, through the introduction of a fair use exception or a repair-specific fair dealing exception’. The submission notes, though, that the Australian Federal Court has read the defence of fair dealing in a narrow fashion — and that could be problematic for a specific defence of fair dealing for repair. The submission contends that a broad defence of fair use under copyright law would be the best possible option.
This submission agrees with the recommendation of the Productivity Commission in Draft Finding 5.2 to ‘amend the Copyright Act 1968 to allow repairers to legally procure tools required to access repair information protected by technological protection measures (TPMs), such as digital locks’. This submission agrees with that the Productivity Commission that the Australian Government should ‘clarify the scope and intent of the existing (related) exception for circumventing TPMs for the purpose of repair.’ This submission notes the parallel development that the Parliament of Canada is currently considering a bill to amend its copyright regime to ensure that technological protection measures do not interfere with the right to repair.
This submission agrees with the recommendation of the Productivity Commission in Draft Finding 5.2 that ‘to reduce the risk of manufacturers using contractual arrangements (such as confidentiality agreements) to ‘override’ the operation of any such reforms, it may also be beneficial to amend the Copyright Act 1968 to prohibit the use of contract terms that restrict repair-related activities otherwise permitted under copyright law.’ This submission that this problem of contracting-out of repair is also apparent in other fields of intellectual property — such as designs law, trade mark law, patent law, and trade secrets law. It would be useful to prohibit the use of contract terms that restrict repair-related activities otherwise permitted under intellectual property law.
Unlike some of the other Australian intellectual property regimes, Australian designs law has a defence in respect of spart parts. The scope of this defence has been recently considered in the case of GM Global Technology Operations LLC v S.S.S. Auto Parts Pty Ltd  FCA 97 (11 February 2019). Even though such a defence was effective in this particular case, the existing provisions in relation to spare parts are complicated and convoluted. The Productivity Commission should avail itself of the opportunity to design a broad defence for the right to repair under designs law.
In light of the Norwegian trade mark dispute between Huseby and Apple, and South African trademark litigation over replacement parts, and United States disputes over Lexus advertising cars, there is a need to ensure that trade mark law respects the right to repair. In its draft report, the Productivity Commission suggests that such an action for trade mark infringement against an independent repairer would be much harder. It would be helpful to clarify this position under Australian trade mark law by providing for an express defence or exception or limitation in respect of repair.
While the High Court of Australia has recently ruled on patent exhaustion, it would be helpful to clarify that the provision of repairs does not amount to patent infringement. Australian patent law recognises a defence of experimental use. However, it is not clear that the defence extends to repairs. A specific patent defence for repairs would provide reassurance about the legitimacy of conducting repairs. The compulsory licensing regime remains unwieldy at the moment — but in exceptional circumstances could be used to provide access to inventions for the purposes of repair on competition grounds.
Australia provides for civil remedies in respect of trade secrets, as well as criminal offences in respect of violation of trade secrets by foreign principals. However, the nature and scope of defences for trade secrets remains unclear. There has been debate as to whether there is a general interest defence (as espoused by Kirby J) or a narrow defence related to exposing wrongdoing and iniquity (as recommended by Gummow J). In this context, there is currently a lack of clarity as to whether using trade secrets for the purposes of repair would be allowable. The Productivity Commission should consider making recommendations regarding defences in respect of trade secrets relating to repair.
Treasury has established a motor vehicle service and repair information sharing scheme. However, it is problematic that this information sharing scheme has been industry-specific. There was also a failure to consider how that scheme would interact with other disciplines of law — like intellectual property. There is a need for a more general system regarding the sharing of repair information for all technologies and industries. It would be desirable to go beyond the model of self-regulatory codes of conduct, and establish binding standards in respect of sharing repair information.
This submission supports the finding 3.1 of the Productivity Commission that ‘there is scope to enhance consumers’ ability to exercise their rights when their product breaks or is faulty — by providing guidance on the expected length of product durability and better processes for resolving claims.’ This submission also supports the recommendations of the Productivity Commission in respect of guidance on reasonable durability of products (draft recommendation 3.1); powers for regulators to enforce guarantees (draft recommendation 3.2); and enabling a super complaints process (draft recommendation 3.3). The Productivity Commission has also asked for information as to whether consumers have reasonable access to repair facilities, spare parts, and software updates (information request 3.1). There is a need to ensure that businesses are required to hold physical spare parts and operate repair facilities for fixed periods of time. It is also important to ensure that software updates are provided by manufacturers for a reasonable period of time after the product has been purchased.
This submission notes the finding of the Productivity Commission that there have been misleading terms in warranties for mobile phones, gaming consoles, washing machines, and high-end watches regarding independent repairs. This submission supports the recommendation of the Productivity Commission (draft recommendation 4.2) that ‘the Australian Government should amend r. 90 of the Competition and Consumer Regulations 2010, to require manufacturer warranties (‘warranties against defect’) on goods to include text (located in a prominent position in the warranty) stating that entitlements to consumer guarantees under the Australian Consumer Law do not require consumers to use authorised repair services or spare parts.’ This submission supports the suggestion of the Productivity Commission that Australia should adopt provisions similar to the Magnuson-Moss Warranty Act in the United States, which prohibit manufacturer warranties from containing terms that require consumers to use authorised repair services or parts to keep their warranty coverage.
There is scope for the Australian Competition and Consumer Commission to deploy competition law to address repair issues. As Draft Finding 4.3 notes, ‘there are existing remedies available under Part IV of the Competition and Consumer Act 2010 to address anti-competitive behaviours in repair markets, such as provisions to prevent the misuse of market power, exclusive dealing or anti-competitive agreements.’ The Productivity Commission has highlighted in Draft Finding 4.2 that limits to repair supplies could be leading to consumer harm in some repair markets — including agricultural machinery, and mobile phones and tablets. A positive obligation to provide access to repair supplies could be a useful means of mandating access to repair supplies — including repair information, spare parts, and diagnostic tools.
The submission would argue that additional policies to prevent premature product obsolescence would have net benefits to the community (cf the Productivity Commission’s Draft Finding 6.1). This submission notes that a product labelling scheme could address information gaps in respect of product repairability, durability, and environmental impact (Information Request 6.1). There are various precedents in respect of energy labelling, eco-labelling, and carbon labelling. The submission supports the adoption of a French-style ‘repairability index’ in Australia. The submission would argue that e-waste is a significant problem in Australia, and there is a need to shift towards the adoption of sustainable production and consumption as part of a circular economy. The submission supports the recommendation 7.1 of the Productivity Commission that the Australian Government should amend the National Television and Computer Recycling Scheme (NTCRS) to allow e-waste products that have been repaired or reused by co regulatory bodies to be counted towards annual scheme targets.
Australia should reform the Product Stewardship Act 2011 (Cth) in order to promote the right to repair, reduce e-waste, and support a circular economy and the Sustainable Development Goals.
The Productivity Commission should be encouraged to develop a bold package of proposals to support a right to repair in Australia — especially given the recent, rapid developments on the right to repair at a state and a federal level in the United States. The Australian Competition and Consumer Commission should prioritize enforcement action in respect of repair restrictions — like its counterpart the United States Federal Trade Commission.
The Productivity Commission should take note of proposal in the Parliament of Canada to recognise a right to repair under copyright law and technological protection measures, which has received broad support from the various quarters of political parties in the Canadian political system.
The Productivity Commission should take note of the developments in the United Kingdom in respect of the right to repair — which are intended to mirror the European Union.
The Productivity Commission should take into account developments on the right to repair in the European Union — particularly given their strong focus on promoting eco-design, green business, a circular economy, and the United Nations Sustainable Development Goals.
The Productivity Commission should take into account the push for a broader and stronger right to repair in South Africa — particularly in response to the coronavirus public health epidemic. The Productivity Commission should also consider how the prospect of a WTO TRIPS waiver would enable access to medical technologies (including for repair) during the public health emergency.
Given that New Zealand has been lagging in this field, Jacinda Ardern’s New Zealand Government should adopt a package of reforms to realise a right to repair in New Zealand.
Australian governments should support repair cafes and social enterprises, makerspaces and fab labs, research centres and innovation networks, which are focused on responsible production and consumption. NSW Circular could be a model for the Federal Government, and other states and territories in Australia. There is a need to recognise a right of repair in Australia in order to help implement Sustainable Development Goal №12, which is focused on responsible production and consumption. As a funder, host, and participant, Australia should support the UNDP Accelerator Labs Network programme.
3D printing and additive manufacturing are already playing a significant role in respect of repair across a number of sectors and technologies. There is a need to ensure that intellectual property law enables the use of such technologies for the purposes of repair. Product liability may have an impact in respect of defective repairs conducted with 3D printing (much like in other fields of technology). The development of standards will also be important to ensure the quality, reliability and durability of repairs undertaken with 3D printing.
The draft report by the Productivity Commission briefly discusses in passing some of the impacts of the coronavirus pandemic upon the topic of the right to repair. It would be helpful and useful if the Productivity Commission could devote a chapter or a sub-chapter to the topic of public health and the right to repair (much like it has in respect of intellectual property, consumer rights, competition policy, product design, and e-waste). There has been much discussion of the necessity of law reform during the coronavirus emergency — including in respect of intellectual property and the right to repair.
Dr Matthew Rimmer is a Professor in Intellectual Property and Innovation Law at the Faculty of Business and Law, at the Queensland University of Technology (QUT). He has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, plain packaging of tobacco products, intellectual property and climate change, Indigenous Intellectual Property, and intellectual property and trade. He is undertaking research on intellectual property and 3D printing; the regulation of robotics and artificial intelligence; intellectual property and public health (particularly looking at the coronavirus COVID-19). His work is archived at QUT ePrints, SSRN Abstracts, Bepress Selected Works, and Open Science Framework.
Rimmer wrote his dissertation on The Pirate Bazaar: The Social Life of Copyright Law (2001). He is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod (2007), Intellectual Property and Biotechnology: Biological Inventions (2008), Intellectual Property and Climate Change: Inventing Clean Technologies (2011) and The Trans-Pacific Partnership: Intellectual Property and Trade in the Pacific Rim (2020). Rimmer edited the thematic issue of Law in Context, entitled Patent Law and Biological Inventions (2006), Indigenous Intellectual Property (2015), the special issue of the QUT Law Review on The Plain Packaging of Tobacco Products (2017), and Intellectual Property and Clean Energy: The Paris Agreement and Climate Justice (2018), and co-edited Incentives for Global Public Health: Patent Law and Access to Essential Medicines (2010), Intellectual Property and Emerging Technologies: The New Biology (2012), and 3D Printing and Beyond: Intellectual Property and Regulation (2019).
Rimmer is a member of the QUT Centre for the Digital Economy — which is part of the QUT Centre for Future Enterprise; the QUT Digital Media Research Centre (QUT DMRC), the QUT Centre for Behavioural Economics, Society, and Technology (QUT BEST); the QUT Centre for Justice; the QUT Australian Centre for Health Law Research (QUT ACHLR); and the QUT Centre for Clean Energy Technologies and Processes. Rimmer was previously the leader of the QUT Intellectual Property and Innovation Law Research Program from 2015–2020 (QUT IPIL). Rimmer is a chief investigator in the NHMRC Centre of Excellence for Achieving the Tobacco Endgame (CREATE) — led by the University of Queensland.