Do We Need Right-to-Repair Legislation?

The ABA’s technology journal has an article advocating legislation to give consumers (or everybody) a right to repair their devices. What this does is prohibit manufacturers from making their devices impossible or dauntingly difficult for the owner to repair, and often for professional mechanics to do as well.

The article gives several examples of the difficulties deliberately created by manufacturers to this end. Its focus is electronic devices, but many other types of goods have also raised the question.

Sometimes repairs can be done by service centres related to the manufacturer, but even then the repairs can be very expensive, by design.

Some US states have legislation intended to permit do-it-yourself repairs by owners, generally or just for vehicles (a provision added in 2015).

Sometimes difficulties are created by the use of computers in products, where the manufacturers claim that it would violate their copyright for the owner to modify the software to carry out repairs. This issue has been debated over the years in the US, when the triennial exemptions from the Digital Millennium Copyright Act (DMCA) anti-avoidance rules are updated.

In other instances the difficulties are ‘purely’ mechanical.

Should Canada have such legislation? If so, is there a priority target for it? Are there areas that should not be legislated on?

And, of course, being Canada, would it be federal or provincial/territorial legislation?

Comments

  1. David Collier-Brown

    We might consider extending existing tied-selling prohibitions from banks to include companies who sell appliances and vehicles.

    See also https://www.canada.ca/en/financial-consumer-agency/services/rights-responsibilities/rights-tied-selling.html

  2. I’ll bite – though I haven’t updated myself on this issue recently.

    In addition to IP issues, there is the closely related issue of competition law.

    Hopefully, with its big victory in the TREB case, 2017 FCA 236 (leave to appeal denied) the Competition Bureau will move on from its long affair with the Chicago School thinking on IP rights.

    Whether there’s cause and effect or more correlation, one must note the near extinction of the independent neighbourhood car repair clinics, which effectively cannot get access to all necessary diagnostic tools for post-warranty service on today’s cars which are virtually computers on wheels.

    So, between IP and competition – this is very much a federal issue.

    I could envisage some provincial legislation re contractual practices precluding right to repair – and I don’t know whether there are counterpart state laws in the USA.

    But I can see obvious issues with any provincial legislation that bumps up to closely against IP law.

    There is also the ability of the Feds to implement regulations under the Copyright Act to alleviate many right to repair problems – but this hasn’t been done:

    Regulations
    41.21 (1) The Governor in Council may make regulations excluding from the application of section 41.1 any technological protection measure that protects a work, a performer’s performance fixed in a sound recording or a sound recording, or classes of them, or any class of such technological protection measures, if the Governor in Council considers that the application of that section to the technological protection measure or class of technological protection measures would unduly restrict competition in the aftermarket sector in which the technological protection measure is used.

    Marginal note:Regulations

    (2) The Governor in Council may make regulations

    (a) prescribing additional circumstances in which paragraph 41.1(1)(a) does not apply, having regard to the following factors:

    (i) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the use a person may make of a work, a performer’s performance fixed in a sound recording or a sound recording when that use is authorized,

    (ii) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available,

    (iii) whether not being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect criticism, review, news reporting, commentary, parody, satire, teaching, scholarship or research that could be made or done in respect of the work, the performer’s performance fixed in a sound recording or the sound recording,

    (iv) whether being permitted to circumvent a technological protection measure that is subject to that paragraph could adversely affect the market for the work, the performer’s performance fixed in a sound recording or the sound recording or its market value,

    (v) whether the work, the performer’s performance fixed in a sound recording or the sound recording is commercially available in a medium and in a quality that is appropriate for non-profit archival, preservation or educational uses, and

    (vi) any other relevant factor; and

    (b) requiring the owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording that is protected by a technological protection measure to provide access to the work, performer’s performance fixed in a sound recording or sound recording to persons who are entitled to the benefit of any of the limitations on the application of paragraph 41.1(1)(a) prescribed under paragraph (a). The regulations may prescribe the manner in which, and the time within which, access is to be provided, as well as any conditions that the owner of the copyright is to comply with.

    2012, c. 20, s. 47.

    Howard

  3. Wired magazine ran an update at the end of April 2019 on the U.S. situation, under the title “Security Experts Unite over the Right to Repair.” The security experts (and Wired, apparently) do not believe the alleged risk (advanced by the manufacturers and IP owners) that easy access to codes to repair digitally-controlled stuff will lead to extensive piracy.

    Legislative hearings are occurring in several states, including California, and Senator Warren has – according to the Wired article – proposed federal legislation in support of the right to repair.

    Is anyone in Canada paying attention, or even having problems?

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