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Thursday, 2 November 2017

How far to take user rights into consideration? Repair?


Mention user’s rights to an IP person, and she is most likely to think of exceptions to copyright. An aggressive approach to such rights was set out by Professor Niva Elkin-Koren in the Abstract to her piece--"Copyright in a Digital Ecosystem: A User-Rights Approach." In her view--
“changes [in the creative ecosystem] necessitate a user-rights approach to copyright law. Users’ interests are often examined through the prism of Limitations and Exceptions (L&E) to copyright. However, this narrow view overlooks the users’ critical role in serving the goals of copyright law and may therefore ultimately lead to inefficient outcomes.”
But there is another kind of possible user rights that arises when IP serves as the basis for a product, namely the right to repair by the person in possession of the product, and the obligation of the owners of IP rights with respect to such product to provide information and hardware to enable such repair.

Permit this Kat to begin with a brief story. Over a period of several months, he has had increasing problems with the Wi-Fi connectivity for his computer at home. It is not a router issue, since Mrs. Kat, who shares a room with this Kat but uses her own computer, has had no such similar problem. And so this Kat tried to find a fix through Windows. After about thirty seconds of whirling, he received a message that identified the problem, but advised that it could not be solved. Crucially, it offered no further advice on how to repair it. Undeterred, this Kat sought to find a fix for the problem on-line. Several sites suggested a solution; each was tried, but without success. Finally, the fifth suggested fix, suggesting that I add a couple of lines of code, did the job. But if this suggestion had in fact not worked; of if I had not found the fix, what would have been my fate? When I raised the problem with this Kat’s software engineer son, young Mr. Kat said simply --“At some point, you will have pay someone who knows what they are doing to help you.”

So there we have it. Copyright, together with some patents and trade secrets, have given us ever-more sophisticated software products. When it works, all is fine, but when it does not, there is a feeling of helplessness, redolent of one’s ordeal at the auto repair shop or with the local plumber (as the tag line in the article below proclaimed: "If it's broken, you can't fix it."). Which raises the question: why isn’t there a right to repair in favor of the user? In fact, it appears that there is increasing interest in formulating a rationale in favor of such a right. These developments were recently described in the September 30th issue of The Economist (“A ‘right to repair’ movement tools up”).

The starting point for this heightened interest is the increasing complexity in machines and devices, often exemplified by a multitude of computer code, running into the millions of lines. But it is not simply this complexity (after all, didn’t this Kat find a fix which involved adding a couple lines of code?). The purveyors of the software may not be interested in your “tinkering” with the product’s software. Contract restrictions and provisions of the DMCA (at least for U.S.-based software products), are identified as further culprits. The concern with the tinkering is not simply, it would seem, a concern that such intervention will do more damage (even physical) than good, as well as a means for protecting the underlying intellectual property.

It may also make business sense. For instance, as the article describes with respect to wearables—
“…technology such as fitness trackers would be much more expensive to consumers if manufacturers did not believe they could monetise the data they collect. If owners could easily tinker with such devices, that could sever the profitable links between product, service and data, which may make manufacturers’ guard them even more jealously.”
Making it more difficult to repair a device renders it more likely that either one must lay out for the repair or even for the purchase of a replacement. As a result, in the U.S., a movement has arisen to encourage the passage of “right to repair” statutes at the state level. The focus is to pass legislation that would require industries to provide independent repair shops, and even in the individual consumer, with the same documentation, hardware, spare parts and tools that they provide to authorized service providers. The strategy is, by passing such legislation at the state level, momentum can hopefully be created to lead to the enactment of a federal law. While promising in concept, no such state law has yet been passed, as various industries have pushed back against this statutory initiative.

And so—the question: Is there a compelling explanation why the legislator should enact such a right to repair? Unlike the rationale for a user's right with respect to copyright, e.g., the better to maximize the milieu in which copyright creation takes place, a user's right to repair does not directly address any core element of an IP right. But there still is a connection. After all, it is the public, through the legislative branch, that provides the statutory authority for (most) IP rights. One can imagine a dystopian world where digital products of all kinds are more and more prone to repair. A refusal to enable repair, forcing the need for more and more replacement purchases of an item, could then lead to a situation where the public throws in the towel and orders their legislators to cut back on IP protection so as to make self-help repair more feasible. Yes, there is TRIPS, the Berne Convention and the like. But none of them is self-enforcing. "Repair" may yet find its way to the pantheon of rights.

Photo at top right by Jorge Royan licensed under Creative Commons Attribution-Share Alike 3.0 Unported license

Photo on left by Snubcube licensed under Creative Commons Attribution-Share Alike 4.0 International license

Photo on lower right by Mattes licensed under Creative Commons Attribution-Share Alike license

3 comments:

Anonymous said...

At present there is indeed often a problem with repairing stuff because spare parts are simply not available. This is understandable with cheap consumer equipment, where the labour cost of repair would greatly exceed the cost of a new item, but is less justifiable for more expensive items such as car engines.

Only last month the rear washer on my wife's VW Polo failed, due to a brass tube that passes through the drive shaft having seized and sheared off. The VW dealer found that a repair kit was available for the non-VW-manufactured wiper assembly that the computer said our model had been fitted with at manufacture, for which a repair kit was available that was a 10 minute job to do. Despite what the computer said, hers turned out to be a VW-manufactured assembly for which no repair kit was available. Rather than pay out a couple of hundred pounds for a complete new assembly (labour extra) I managed to find some suitable small diameter brass tube costing less than £2 and mended it myself.

In our case the proposed US legislation would prima facie not have helped, because the manufacturer does not make the necessary spare parts available to anyone, not even its own authorized dealers.

Andy said...

While not intending to hijack this posting, it seems to me that we need to differentiate between the various IP rights. Clearly patents are intended to operate in an industrial sphere (indeed the 'inventions' to which they adhere must be capable of industrial application) and much the same rationale applies to design right and trade marks, although clearly Neil's points don't really relate to either of the latter.

Copyright on the other hand was always intended to apply to works of the mind (irrespective of whether one considers the common law or droit d'auteur approach) and so really one should be exceptionally cautious about extending its benefits to the purely industrial sphere. In my view the inclusion of TPMs in copyright law was the thin end of the wedge which has lead us to the current situation. Any dispassionate and rational evaluation of the use of copyright to prevent third party modificataion or repair of, say, vehicles would show this to be ludicrous. As is so often the case, we must thank the USA for this - to my mind, unwarranted - development, and I doubt if those corporations which lobbied for the changes are going to change their stance, or their monopolistic tendencies. Therefore it is up to more rational heads who do not wish copyright to be brought into disrepute to push back against the further expansion of such developments within other jurisdictions. In particular, the back door introduction of such deviations should be strongly resisted when concluding international treaties and trade deals. Let's face it, copyright is already too diverse to be strictly considered as a single 'right', and the continuing perceived need to develop the law of copyright to take into account new technological advances should always to done from an initial standpoint of whether the issue at hand is really a copyright issue at all. Since the current push is all aimed at the digital market, perhaps the time has come to divorce the intellectual or creative right from the platform or distribution right, preferably with a new name, as was the case with the creation of design right.

Anonymous said...

Union law has specific instances of the legislator introducing user rights notably for software (well ahead of the rest of the world back in 1991) and the CJEU has fully upheld them; and there are more under consideration for copyright in general ; and as interpreted by the CJEU exceptions are now treated as such even if the legislator did not intend that.

Outside the realm of software, invoking an IP right to prevent repair is usually invoked by car manufacturers in the area of designs where the Union famously could not agree on a way forward in its law. See the pending case Acacia which pits Porsche/Audi against spare parts manufacturers.

Essentially it is lock in without a right to repair.

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