Spotlight on the right-to-repair movement and IP rights in India

As our dependence on electronic gadgets intensifies, so does the conversation surrounding the right-to-repair movement, which promises direct benefits for consumers and the environment. However, the movement is currently clashing with manufacturers, who claim that legislation will force them to reveal trade secrets, threatening IP rights and creating brand dilution.

In theory, the notion of right-to-repair is simple: an individual purchasing a product must own it completely, and therefore have the right to modify, repair or service it without any manufacturer or technical restrictions. However, users of electronics hit a wall when they try to make repairs independent of the original manufacturer due to the limitations that they often impose on access to repair materials such as parts, tools, diagnostics, documentation and firmware. Such opacity extends to the cost of repairs as well. And, if costs are on the higher side, consumers tilt towards buying a new product rather than repairing an old one. A use-and-throw approach creates mountains of e-waste, inviting harsh criticism from environmentalists and advocates of a circular economy (where manufacturers design products to be reusable and easier to repair).

The right-to-repair movement is global and its efforts are particularly strong when it comes to automobiles and consumer electronics. On 3 June 2022, the State of New York passed a right-to-repair law specifically for electronics. The Digital Fair Repair Act requires original equipment manufacturers to “make diagnostic and repair information for digital electronic parts and equipment available to independent repair providers and consumers if such parts and repair information are also available to OEM [original equipment manufacturers] authorized repair providers”.

Intellectual property and the right-to-repair

Technology companies restrict access to repairs by only providing equipment parts, repair manuals or access to software source codes to a limited number of dealers. However, they defend the right to do so by citing IP concerns and quality control - repairs carried out by third parties could lead to devices and appliances being fitted with faulty parts, causing injury. Unauthorised repairs by inexperienced technicians could also lead to the sub-optimal performance of a device. In both scenarios, brand dilution becomes a significant concern.

Manufacturers argue that IP rights are critical to innovation and growth. Providing individuals and independent repair shops with access to proprietary information, parts, tools and equipment without the contractual safeguards currently in place between manufacturers and affiliated service providers would place sensitive protected intellectual property and trade secrets at significant risk, and force manufacturers to reveal proprietary technical information on their products. Measures that undercut a manufacturer’s control of the market for replacement parts might also conflict with patent exclusivity.

It is argued that failure to ensure adequate protection of IP rights ultimately harms consumers, and weak IP protection disincentivises R&D investments, leading to less innovative markets and slower technological progress.

India’s take on right-to-repair

India does not have right-to-repair legislation yet. However, there are judicial pronouncements that have tacitly recognised this right.

The judgment of the Competition Commission of India (upheld by the now defunct Competition Appellate Tribunal) in the case of Shri Shamsher Kataria v Honda Siel Cars Limited & Ors (2014) is significant as it tackled competition issues juxtaposed with IP concerns in the automotive sector. In this case, 14 automobile manufacturers were held liable for engaging in the anti-competitive conduct of abusing their dominant position and selling spare parts only to authorised dealers and not to independent outlets. The commission held that IP rights cannot be used as a defence for an alleged misuse of a dominant position under the competition rules. The court ruled that the companies shall provide repair rights to third-party outlets, along with the relevant spare parts and data.

Any activity which restricts or impedes the right-to-repair of a customer is classified as a “restrictive trade practice” under Section 2 of the Consumer Protection Act 2019. The act expressly recognises the “right to choose”, which implies that a customer must have access to quality goods and services at competitive prices set by a free market.

Comment

As the right-to-repair movement gathers momentum, it is important to study it in detail. An end user’s right-to-repair is significant but so are IP rights, as both are responsible for consumer welfare, albeit in different ways. Repair-friendly interpretations of patent and trademark law doctrines may be in order. For example, some suggest that IP owners be prevented from asserting design patents or trademarks over replacement parts against those who are using them for repair purposes. Removal of prohibitions on the circumventing of digital locks and the transmission of relevant repair information has also been proposed. This is an emerging area and it will be interesting to see how it evolves.