September 8, 2021/ Law Review and Blog Committee/Posted in Intellectual Property Law
By Sakshi Shrivastava, a student of Hidayatullah National Law University Introduction While a faulty automobile will invariably lead you to a mechanic, a faulty smartphone will most often lead you to buy a new one. The added complexities of modern-day electronic devices have rendered them virtually incapable of having a repair infrastructure. Putting the innovative capital cost and consumer interest arguments aside, this also raises much larger environmental concerns for the planet. This is where progressive concepts like Right to Repair have to be incorporated into state systems via legislative action. On 9th July 2021, the United States President Joseph Biden, issued an Executive Order (“EO”) on Promotion of Competition in American Economy. As per Section 5(h)(ii) of the EO, the Federal Trade Commission (“FTC”) has been directed to add and enact regulations which shall work to provide the Right to Repair (“RTR”) in the United States (“U.S.”) to the customers. The FTC, within 13 days of the issuance of the EO, unanimously adopted a policy statement, with a majority of 5:0, which focused on restoration of RTR and countering antitrust practises. In India, the pandemic has resulted in a significant shift of all work to online platforms, necessitating extensive use of ‘up-to-date’ electronic devices. Despite massive marketing by big tech companies about the durability of electronic devices, these devices require to be “upgraded” so frequently that it creates a pile of unwanted e-waste while also challenging consumers’ financial limits. The requirement, when combined with the concept of planned obsolescence, jeopardises consumer’s RTR and the public interest in general. The Deplorable Concept of Planned Obsolescence Planned obsolescence is a business strategy which involves the designing of gadgets in such a way that products are only functional for a short period of time. Planned obsolescence techniques include performance reducing software and production of structurally weak products. Irreplaceable oximeter batteries, non-refillable inkjet cartridges, short life light bulbs and so on are examples of intentional obsolescence. This alludes to the fact that technologies are made to endure for just a short period of time and are then replaced, putting enormous strain on the environment by wasting resources. Many multinational companies such as Apple and Samsung have been utilising designed obsolescence as a market strategy. Thus, planned obsolescence not only deals with the consumer’s RTR but also leads to e-waste generated by the humongous consumption of electronic products due to failure in the product design. The proliferation of e-waste has led to alarming environmental concerns, especially in India which is officially pronounced as the third biggest e-waste generator in the world. Since there are no specific legislations currently against planned and strategic obsolescence, the emergence of RTR aims to reduce such strain over the environment by creating space for reusing the products, banning the strategy of planned obsolescence and maintaining a circular economy. Tracing Historical Background of the Right to Repair The Right to Repair is an innovative and unconventional concept in the legal domain which deals with the provision of a right for repairing a defective product, such as an automobile or a smartphone, which has been malfunctioning, or for creating modifications in such defective product by a customer, manufacturer or an independent repair outlet. The dawn of the varied discussions around right to repair began in the U.S. with the Motor Vehicle Owners Right to Repair Act of 2012 which targeted at making regulations for the automobile forms to make available the spare parts and data pertinent to the process of repair as well as allowing customers to have a right to choose the repair outlets. In 2017, in the case of In Re Apple Inc. Device Performance, a conundrum arose regarding Apple Inc. indulging in planned obsolescence by deliberately slowing down the performance of smartphone devices by the Apple incorporation, as a tactic to force its customers to upgrade to newer versions of their marketspace flagship device. Apple argued that this scenario could be avoided by a simple replacement of batteries, which it did not allow from third-party repair outlets. The RTR movement focuses on provision of such repair rights to the consumers. This movement continued well into 2020 with the U.S. Senator Ron Wyden introducing the Critical Medical Infrastructure Right To Repair Bill in the U.S. Senate. The bill focussed on protecting the consumers from any copyright law infringement action while making repairs to critical medical equipment utilised in Covid-19 healthcare support. Developments from the European Union In 2021, the European Union in its Eco-Design Directive provided for RTR provisions to consumers of electronic devices. However, it excluded smartphones and laptops. Amendments were made under Section 23 of Consumer Rights Act, 2015, which now incorporates the right to repair a malfunctioning device by one’s own self or by a third party. The objective of the regulations is to ensure that the manufacturers provide necessary data and spare parts of the electronic products to extend their lifespan for at least 10 years. The legislation finds its roots in the Circular Economy Action Plan drafted in 2020 which aims at environmental conservation by eradication of electronic waste. Analysing the Indian Scenario In India, the concept of planned obsolescence is valid and lawful as per the provisions of Copyright Act of 1957. However, remedy could be sought under the Section 10 of the Consumer Protection Act, 2019 which defines “defects” or “shortcomings” in a product. In the judgement of Jaswant Rai v. Abnash Kaur[i], a “reasonable expectations” criterion had been detailed out, in relation to defects in a product; which states that physical faults would have to be considered in circumstances where a reasonable buyer would not have engaged into a contract if the genuine quality of the goods had been disclosed. Furthermore, software controls such as software locks enable Software Copyright Owners to have the ability to regulate whether individuals are allowed to make copies of the software as well as their modifications, or not. The Copyright Act, 1957 allows for these controls, which are referred to as Digital Rights Management (“DRM”). Manufacturers can efficiently trigger obsolescence after sale through DRM by imposing a bar that prevents products from being repaired when it requires usage of the software. For instance, a smartphone can be set to fail and the same can be prevented simply by making it unlawful owing to the contract forbidding software modification, which also prohibits repairs by a third-party outlet. These practices make it imperative for the addition of RTR under a legislative framework for the purpose of protecting the users’ interests and environmental conservation. Despite the fact that RTR is not explicitly recognised in India, the Competition Commission of India’s decision in Shamsher Kataria v. Honda Siel Cars India Ltd. marks a breakthrough for the notion. In this case, 14 automobile manufacturers were held liable for engaging in anti-competitive conduct of abusing their dominant position and selling spare parts only to the authorized dealers and not to independent outlets. Furthermore, the Commission held that intellectual property rights cannot be used as a defence for an alleged misuse of dominant position under the competition rules. The court held that the companies shall provide repair rights to third party outlets along with the relevant spare parts and data. Conclusion Millions of people have been pushed to adapt to an electronic device-based interface as a result of the pandemic in India, leading to burgeoning of the potential consumer base. Considering this humongous market, in the world’s second most populous nation, it is imperative to call for an urgent legislation with respect to RTR to eradicate the long list of problems which are faced by the consumers such as the exorbitant cost of repair and conveyance costs. This shall also help in suppressing the conditions of creation of a monopoly and anti-competitive policies in the market along with the obvious wide scale ramifications for environmental protection. Amendments to the Copyright Act, 1957 as well as the Information Technology Act, 2000 are required to support the adoption of free software, allowing consumers to prolong the life of their gadgets. It is necessary to develop a strategy with recommendations for promoting public welfare and to implement appropriate steps to prevent the misuse of DRM and Intellectual Property Rights in stifling innovation and competition. The RTR will guarantee that users (inexpensive) options for repair work in context of consumer rights and digital freedom. [i] 1973 SCC OnLine Del 212.