Shawayne Lawrence-Williams is a 3L J.D. Candidate at Osgoode Hall Law School, enrolled in Professor David Vaver’s 2021-2022 Intellectual Property Law & Technology Intensive Program. As part of the course requirements, students were asked to write a blog on a topic of their choice.
Everything breaks eventually.
It sounds bleak. But when it comes to the devices, machines, and tools we use every single day, it’s true. You’ll push down the lever on your toaster, but your bread won’t magically change into toast. Parts inside your car will wear out, even if you only do things the average driver does. The device you’re using to read this blog post likely has a battery or drive that will fail.
We’ve all encountered objects that stop functioning. When they do, we act, whether it’s getting the object serviced, fixing it ourselves, or even replacing the whole thing. But some manufacturers intentionally limit what people can do to get their stuff working again, even if you technically have the ability to try and repair your own things. Some manufacturers include software limitations that are hard to tamper with, locking out independent service people. They might hoard proprietary parts and threaten third party part manufacturers. Some companies keep their repair manuals secret, or withhold tools required to get inside devices. Manufacturers can also make their devices impossible to open without breaking them further. A right to repair can alleviate consumers of some of these restrictive practices and give them more options.
Manufacturers likely find it valuable to monopolize repairs. It’s questionable whether they are obligated to help anyone break into their products for repairs, considering that it might lead to piracy. Companies may arguably make higher-quality repairs on their own products, and worth the price. The device manufacturer should know how to diagnose and fix your device better than anyone. If a device cannot be fixed, manufacturers can even replace them.
However, it doesn’t make sense to restrict competition in the repair market just because a manufacturer can make quality repairs, or for fears of piracy. Even if we accept that third parties can’t meet the manufacturer standard, this fact will likely be reflected in the prices consumers pay third party repair choices. A lack of a right to repair isn’t preventing anyone from pirating either. Consumers should at least have the option to choose, and a right of repair could help them do so.
The US is taking steps towards giving consumers these options with some recent changes to anti circumvention exceptions in section 1201 of the Digital Millennium Copyright Act. Consumers in the US have been given extended fair use rights to “break in” to consumer software-enabled devices for diagnostics, repair, and maintenance. Consumers will be able to use software tools or enable third parties to use tools to repair devices, where previously this access may have been. There are still limits, in that these tools cannot be distributed publicly, and non-consumer devices are not covered by these new exemptions, among others. The changes also cannot stop a company from sealing their device in such a way that makes it difficult to access for repair. But it does expand consumers’ ability to try and get in. It’s a nice addition to a consumer’s right to repair their own things.
Canada should follow suit, potentially by adding “repairs” as a category to the Fair Dealing exceptions to copyright. Using software tools to repair a device might seem like circumvention of a technological protection measure, which is prohibited in section 41.1 of the Copyright Act, likely due to piracy concerns. But, repair exemptions could benefit Canadians, and seems to already have some grassroots support. Additionally, codifying existing common law rights to repair one’s property sends a clear message that Canada is dedicated to protecting the rights of consumers.
A right to repair could help make our society less wasteful. It will give consumers more options to fix their stuff instead of going to the manufacturer to fix things. It could stoke competition in the repair market, which may lower prices. It may also convince more consumers to try the do-it-yourself route, saving costs on simple repairs, and allowing people to learn more about the devices they use every day. With all the potential a right to repair regime might bring, it would be unwise to ignore what the US has done and act on our end.