Demanding a right to repair

In 1988, the poet and environmentalist Wendell Berry published an essay — “Why I Am Not Going to Buy a Computer” — that read like a manifesto for aggrieved technophobes everywhere. “How could I write conscientiously against the rape of nature,” he wrote, “if I were, in the act of writing, implicated in the rape?”

Berry may have worn his Luddite badge with pride, but he knew enough to put his finger on a core problem of modern consumption: the more complicated products become, the more difficult they are to fix. Sometimes, the difficulty is by design.

So-called “right to repair” movements have popped up in developed economies around the world. They come at the problem from different angles — advocates in the United States tend to emphasize consumer rights while those in Europe focus more on the growing environmental impact of electronic waste — but they’ve all more or less targeted one thing: manufacturers’ use of digital locks or “technological prevention measures” (TPMs) to bar third-party access to copyrighted works.

Sanctions for circumventing TPMs were introduced to Canada’s Copyright Act in 2011 to prevent unauthorized copying of physical media or software. That had a secondary effect: TPMs eventually allowed makers of products with embedded computer systems to prevent consumers from accessing device software for diagnosis and repair, giving manufacturers sweeping control over aftermarket service.

“TPMs created for manufacturers an exclusive right of access to protected works,” said Alissa Centivany, an assistant professor in Information and Media Studies at the University of Western Ontario. “It doesn’t matter if the breach in question has nothing at all to do with the things that copyright is actually meant to protect.”

When TPMs entered the Copyright Act, few people were talking about the “internet of things” — internet-linked products with embedded software. Such products are everywhere now: in our kitchens, hospitals, farm fields, and fitness centres.

Manufacturers can exert copyright control over device software to prevent third parties from running diagnostics. They can also control access to replacement parts and impose restrictions through warranties and contracts — all of which serves to restrict access to independent repair or encourage consumers to buy new.

“Manufacturers are not going to want to sue consumers,” says

Noel Courage, a partner at Bereskin & Parr LLP who works in patenting and licensing law. “So the pressure they bring to bear would be on third-party repair shops.”

When a smartphone costs more to fix than to replace, it gets junked. E-waste is one of the fastest-growing categories of waste; some estimates have it increasing at three to four per cent annually. The world landfilled a record 53.6 million tonnes of e-waste in 2019 — a 21% increase in just five years. Less than 18% of it was recycled.

In 2022, Apple estimated the carbon footprint of each new iPhone 14 Pro at 65 kg of emissions — 81% of that came from production. E-waste can contain toxins like lead, mercury and arsenic that linger in the environment. Treating electronics as disposable threatens the planet.

And there’s nothing inevitable about it. The automotive industry has been living with aftermarket parts and independent repair for a century. But “the automotive industry is an old one; it’s based in North America, and cars are much more expensive than smartphones,” says Anthony Rosborough, an intellectual property lawyer and doctoral researcher in law at the European University Institute.

“With the tech industries, the perception people seem to have is that the supply chains for electronics manufacturing are all in faraway places and there’s no local benefit to an aftermarket.”

The federal government committed in the 2023 budget to pursuing a right to repair. Bill C-244, sponsored by Liberal MP Wilson Miao, made it through the report stage in the House of Commons in May. The bill would amend the Copyright Act to make it lawful to bypass TPMs “for the sole purpose of maintaining or repairing a product.”

Right-to-repair advocates see C-244 as a baby step. It doesn’t specifically mention the provision of tools to circumvent TPMs, or the work of independent commercial repair shops. It doesn’t offer a “repairability index” like the one in France, which tells consumers through a simple one-to-ten rating system how easy or expensive it is to repair a device.

It doesn’t go beyond the Copyright Act, while manufacturers’ efforts to control aftermarket repair often work through warranties and contracts. “We could imagine a situation where, for example, C-244 passes and manufacturers begin inserting language into contracts, warranties, terms of use ... that essentially try to prevent circumvention using other means,” says Centivany.

“What I would like to see is guidance at the federal level, perhaps through reforms to the Competition Act, that ensure all products sold carry basic unwaivable warranty terms. One such term might be that warranties may not be voidable based on circumvention of TPMs or the use of independent repair providers, for example.”

What the bill does offer, says Rosborough, is leeway for provincial governments looking to reform their own laws.

When Ontario MPP Michael Coteau introduced his own right-to-repair bill in 2019, it quickly became the target of a concerted industry lobbying effort that convinced some provincial legislators that it would kill tech investment in the province or trigger a boom in hacking. Many of those same legislators also worried about violating federal jurisdiction over copyright. C-244 could encourage provinces to amend laws dealing with contracts, warranties and licences.

“I think the legislation is as much as the federal government could do as a first step,” says Rosborough. “The federal government has to take a leading role in reforming IP law to clear the way for provincial governments to reform their own [consumer protection and sale of goods] laws.”

Could guaranteeing a right to repair through federal and provincial law help us turn the corner on a throwaway consumer culture that threatens the planet? Not on its own, says Centivany — there’s still the “social factor” of consumption.

“That’s just the way our consumer culture has been wired over decades to encourage us to want the new stuff, the latest models, and to discard everything else,” she says.

“But you have to start somewhere. This bill is a place to start.”