25 – 31 October marks Open Access Week. To celebrate the work of Griffith researchers who are advancing open access to information, we caught up with Professor Leanne Wiseman to learn about the Right to Repair movement and how this intersects with intellectual property law. Professor Wiseman is an Australian Research Council Future Fellow and Professor of Law at Griffith University. She is also Associate Director of the Australian Centre for Intellectual Property in Agriculture. As part of her Future Fellowship, Leanne has been investigating the role that intellectual property plays in the rights and capacities of Australians to repair their smart goods.
What was the path which led you to becoming a scholar specialising in the intersection of law, new technologies and intellectual property (IP)?
My special interest in the intersection of law, new technologies and intellectual property was sparked when I studied IP and IT law in my Master of Laws at King’s College, University of London in the early 1990s. The creation of the World Wide Web in 1989 had revolutionised computers and communication, and the ensuing exponential growth of information dissemination highlighted the important challenges that new technologies posed to IP laws, particularly copyright law. From that time, I have always been interested in how IP laws can both hinder and enable access to information.
My research into IP issues in agriculture through our research centre, the Australian Centre for Intellectual Property in Agriculture (ACIPA), highlighted the many ways in which IP rights can restrict (but also in some cases, enable) access to information. I have particular interest in the legal issues that are arising when copyright and the scheme of technological protection measures are now embedded in digitally enabled goods, equipment and devices such as our cars, fridges, microwaves and household appliances such as coffee machines and vacuums.
Your recent research has concentrated on the ‘Right to Repair’ movement. What does ‘Right to Repair’ mean, and how is it related to open access and intellectual property law?
Put simply, the Right to Repair movement relates to the ability of consumers to have their products repaired at a competitive price by the repairer of their choice or to be able to repair their products themselves. To enable this to happen, manufacturers should make repair and service information and tools available to third-party repairers, and spare parts should be made available for repair.
At the heart of the legal barriers to repair is the Intellectual Property law regime. Manufacturers of digitally enabled goods use the IP in the computer software to ‘lock up’ the goods—which in effect ties consumers to the manufacturers for repair and service. Manufactures rely upon the copyright scheme of technological protection measures (TPMs)—developed in the 1990s to protect music and other copyright content online—to prohibit access to the underlying software programs that are now embedded in everyday smart appliances, cars and machinery. Copyright and TPMs are not the only barriers to access and repair. Contributing to the problem are the copyright licences that restrict access to the technology and the repair information in service manuals. Patents, trademarks, designs, trade secrets and confidentiality in the hardware, software, spare parts and repair manuals are also being used by the manufacturers to control the aftermarket of spare parts, repairs and servicing.
Open access organisations such as Digital Rights Watch (DRW) and Electronic Frontiers Australia (EFA) are supportive of the Right to Repair movement that opposes manufacturers’ excessive control over access to repair information. Interestingly, as Apple co-founder Steve Wozniak has observed, Apple only exists because of the open-source culture of the 1970s. Back when Steve Jobs and Steve Wozniak created Apple, every electronic device would come bundled with all of its circuits, schematics and designs detailed on a manual. This is no longer the case as much of this information is held back by manufacturers, who have a strong interest controlling the repair or aftermarket.
‘…the Right to Repair movement relates to the ability of consumers to have their products repaired at a competitive price by the repairer of their choice or to be able to repair their products themselves.’
What first sparked your interest in the Right to Repair movement, and can you explain some of the research and advocacy work you are currently involved in?
For many years I have worked with Australian farmers researching the IP issues they confront when they adopt digital technologies on their farms. With increasing use of digital technologies such as GPS controlled tractors, sensors and drones, there is a huge amount of data being created on farms, and with that, an increasing level of interest in the ownership and control of agricultural data. It was examining issues around agricultural data ownership and access that highlighted the fact that our farmers have limited access to the agricultural data their digital farm machinery generates. This has serious implications for farmers when their digital farm equipment breaks down or needs repair. The limited access to diagnostic data and repair services and information for farm machinery led me to the Right to Repair movement.
I first spoke to Western Australian grain farmers about the Right to Repair movement in 2015 and since then I have been researching international legal and regulatory responses to the movement. Both the US and the EU have begun to introduce regulations to respond to this inability to repair. Limited access to repair and service information, and the inability to repair digital devices and equipment impacts a wide range of products used by agricultural and many other industries, including motor vehicles, electronic appliances and medical equipment.
My current research focuses on what a Right to Repair should look like in the Australian regulatory framework—in particular, the role that intellectual property law plays in the rights and capacities of Australians to repair their smart goods—and, more broadly, in the more efficient and sustainable use of Australian resources, which in turn effects Australia’s environmental sustainability.
What might equitable Right to Repair provisions looks like in an Australian context, and how could these benefit consumers and the environment?
The Right to Repair is a multi-faceted issue which requires a range of regulatory responses that will involve potential reforms not only to intellectual property laws, but also consumer, competition and environmental laws. On 29 October 2020, the Treasurer of Australia gave the Productivity Commission terms of reference to undertake a 12-month inquiry into the Right to Repair in Australia. This review has examined ‘potential benefits and costs associated with ‘Right to Repair’ in the Australian context, including current and potential legislative, regulatory and non-regulatory frameworks and their impact on consumers’ ability to repair products that develop faults or require maintenance’. The terms of reference were broad, including the competition aspects of repair markets and consideration of how to prevent the ‘premature or planned product obsolescence and the proliferation of ewaste’.
The final report of the Productivity Commission is due to be released on 29 October 2021. Several recommendations were made in the Productivity Commission’s draft report, which gave some indication of their thinking. There was some interest in investigating reforms to the defence of fair dealing in copyright law to ensure repairability was permitted, and to ensure technological protection measures could not be used to lock up devices thus preventing repair. Also, there was some interest expressed in the recently introduced French Repairability Index, which introduced a rating system for the repairability of goods. It will be very interesting to see the final recommendations of the Productivity Commission’s inquiry.
‘Reducing e-waste by enabling the repair of our goods will play an important role in creating a more environmentally sustainable Australia.’
Encouraging and enabling repair of our digital goods and machinery will ensure that our digital products, equipment and devices remain in use for much longer, reducing the amount of e-waste that is being created. Reducing e-waste by enabling the repair of our goods will play an important role in creating a more environmentally sustainable Australia.
Are there any resources you can recommend to people who would like to find out more about the Right to Repair movement, open access or intellectual property law in general?
There has been a lot of media interest around the Right to Repair issue here in Australia and a great place to find many of the media links is at the Repair Australia website, which was recently launched.
Internationally, there are wonderful organisations such as the US Public Interest Research Group (PIRG) that have been working hard on the Right to Repair in the USA, the Repair Association iFixit and the European Right to Repair movement.
IP Australia is a great source of information about intellectual property laws more generally.