-Gauransh Kaushal Choudhary1
Abstract
The Right to Repair (RTR) movement empowers consumers to repair their own devices. This right clashes with Intellectual Property Rights (IPR) that give manufacturers control over repairs. The article explores this conflict in India. The Copyright Act of 1957 restricts repair due to limited fair use exceptions. The Design Act of 2000 grants protection to a product's design but courts set a high bar for granting copyrights. The Trademark Act of 1999 can make independent repair services liable for infringement. The Patent Act of 1970 allows challenging restrictions on repair. A Competition Commission of India case ruled that companies cannot use IPR to stifle competition in repairs. India is developing a framework to give consumers access to repair information and parts. This will benefit rural areas and reduce e-waste. Balancing RTR with IPR is a challenge, but India's legal framework offers ways to achieve this balance.
Introduction
The "Right to Repair" is a crucial advocacy for consumer autonomy, empowering individuals to repair and alter their own consumer items, including digital devices, automotive, and agricultural machinery. This legislation addresses the significant issue of manufacturers compelling consumers to utilize exclusive repair services by restricting access to essential tools, components, and repair guides, or by implementing software obstacles that hinder independent repairs and modifications.2 Consequently, consumers often invest substantial sums in technologies that become obsolete within a few years and are forced to discard these items due to prohibitive repair costs or the unavailability of repair options, compelling them to purchase new versions of similar products. This practice severely compromises the consumers' "Right to Choose," as manufacturers maintain exclusive control over spare components, including their design and availability, and often impose warranty terms that risk invalidation if repairs are sought from non-authorized service providers. Furthermore, the deliberate withholding of repair guides fosters a culture of "Planned Obsolescence," where devices are intentionally designed to have a limited lifespan, necessitating replacement rather than repair.3 This exacerbates the problem of electronic waste (e-waste), as consumers are left with little choice but to discard malfunctioning items, thereby contributing to an unsustainable cycle of consumption and waste. It is often noted that the Right to Repair and the Intellectual Property Rights come in conflict with each other, as the producers try to prevent the consumers from to exercise their right to repair under the veil of the Intellectual Property Rights this article aims to explore the relationship between the Right to repair and the intellectual property rights in India.
Indian Copyright Act, 1957
Under the IPR regime the Right to Repair has to be seen as an extension of the doctrine of exhaustion4, which means that the IP Right holder loses his control over the IPR once a sale has been made. This section of the article aims to discuss various facets of IPR in the realm of RTR.
In the contemporary digital age where information flows freely on the internet, companies still claim copyright over their repair or instruction manuals. While such claims are rare in India, they have sparked significant legal debate in the USA. In some instances, US courts have applied the doctrine of merger, holding that repair or instruction manuals cannot be copyrighted5. This doctrine asserts that "certain ideas can only be expressed in a limited number of ways". When this occurs, the idea and its expression are considered merged, and neither is subject to copyright protection. The doctrine of merger has also been recognized by Indian courts. In Chancellor Masters of Oxford v. Narendra Publishing House6, the Supreme Court of India held that mathematical questions are expressions of laws of nature. Since language is a limited medium, such laws can only be expressed in a few ways. Extending copyright protection to such questions would deny access to the ideas they encompass.7 Thus, this doctrine can aid consumers by maintaining the free flow of information.
Further the Right to Repair (RTR) in sophisticated electronic goods, such as smartphones, encompasses both hardware and software repair. RTR in software presents unique challenges and involves three key elements: revert, refuse, and receive8.
- Reverting: Users may find software updates less user-friendly and wish to revert to a previous version. This involves the right to access and use older versions and the necessary information to restore their system to its former state while maintaining compatibility with other applications and devices.
- Refusing: Users might want the option to refuse automatic updates, which can be inconvenient or disruptive, despite their benefits like bug fixes and security patches.
- Receiving: While software developers use updates to introduce new features, consumers have mixed feelings about paying for upgrades. Some prefer the latest version, while others value the reliability of older versions. This creates tension between a company's desire to phase out support for older versions and a consumer's wish for ongoing maintenance.
These days the manufacturers generally regulate the make use of EULA to stipulate conditions for software use. At least the legislature can regulate the EULAs. Legislators or regulators could mandate that software companies disclose what consumers will receive regarding reversion rights and any rights to receive and refuse repairs. For example, this could be a separate EULA section specifically addressing software repairs, with improved clarity and content to support consumer choice and competition on license terms hence reducing information asymmetry.
Further in respect to reverting, refusing and receiving, in the USA, Section 1201 of the Digital Millennium Copyright Act (DMCA) allows software owners to reverse engineer software designs for repair purposes. This reverse engineering is also considered fair use, thus not infringing copyright.9
In contrast, the Indian Copyright Act, 1957, grants copyrights for software or computer codes. Section 2(o) of the Act includes computer programs under the definition of literary work. Section 51 defines what constitutes copyright infringement, which includes unauthorized reproduction, distribution, and adaptation of copyrighted work. While Section 52 of the Act provides for certain exceptions under the defence of fair dealing, India's scope of exceptions is narrower compared to the broader fair use doctrine in the USA. Section 52 allows for making copies of software under specific circumstances but does not permit software circumvention or tampering except to make the software interoperable with other software. This restriction limits the Right to Repair in software context in India. In Tekla Corporation & Another versus Survo Ghosh & Anr.10 the Delhi High Court held that the defences available to the defendant under the Copyright Act are exhaustive, and hence the defence of copyright misuse cannot be taken. This further imposes a restriction on the consumer from acting against the copyright misuse by the companies. Furthermore, software circumvention is a penal offense under Section 65 of the Copyright Act, 1957. All these factors have severely restricted the scope of Right to Repair under the Copyright Act 1957.
Design Act 2000
In India, the Design Act of 2000 governs the protection of design copyrights. According to Section 2(d) of the Act, a 'Design' this definition encompasses the visual characteristics such as shape, design, pattern, decoration, or arrangement of lines and colours applied to any object, whether in two or three dimensions, and created through any industrial process, whether manual, mechanical, or chemical. These visual features must be aesthetically pleasing when the object is completed. However, it specifically excludes elements related to the method or principle of construction, anything purely mechanical, and does not include trademarks, property marks, or artistic works as defined by relevant laws.
The Act aims to grant copyright protection to the ornamental or aesthetic aspect of a product, which may have minimal utility. However, it sets a high threshold for such protection. The Act stipulates that only designs that are original, novel, and have not been previously displayed anywhere in the world before registration are eligible for copyright. Judicial interpretation of the Act, as seen in cases such as Cello Household Product v. Modaware India11 and Whirlpool of India Ltd v. Videocon Industries12, has clarified the criteria for determining the originality of a design. These criteria include:
- Imitation does not equate to duplication.
- Infringement can occur even if only the essential parts of a design are copied.
- Originality must be assessed visually.
- The design must be considered in its entirety.
Despite the stringent criteria, there is a lack of data on the rejection of design copyrights on substantive grounds in India. The judiciary's role is typically reactive, intervening only when a dispute is brought before it, making it challenging to assess compliance with the judicially established threshold. The judicious granting of design copyrights is crucial, as indiscriminate protection can threaten consumer interests. If copyrights on components and replacement parts are granted too readily, manufacturers could potentially restrict access to these parts for owners and repair providers, impose exorbitant prices, or set restrictive conditions for access to parts. This could undermine the balance between protecting the intellectual property rights of designers and ensuring fair competition and consumer rights. Therefore, it is imperative that the threshold for design copyright protection, as set by the judiciary, is adhered to and enforced to prevent such adverse outcomes.
Trademarks Act 1999
According to Section 29(1) of the Act, in India, trademark infringement doesn't apply if the use of the trademark is private and not part of commercial activity. However, if any action affects the normal functioning of the original product, it can still be challenged under the Act, even if it's not for commercial purposes. For example, when an independent repairer obtains spare parts for repairs, whether from an authorized dealer or other manufacturers, it constitutes trademark use and may infringe. Therefore, in cases involving commercial repair services, the repairer can be held responsible for trademark infringement.13
The Patent Act 1970
Certain restrictions put on purchasers may be deemed unlawful under the broad principles provided by Section 140 of the Patents Act, 1970. Certain nations adhere to the doctrine of implied licensing, whereby, in addition to the innovation, the right of repair may be patentable via a license agreement, and customers may be forbidden from altering the product in any way. The U.S. Supreme Court's ruling in Impression Products, Inc. v. Lexmark International Inc., which addressed this case, is pertinent here. The court determined that, once a patented ink cartridge is sold, the patent holder is barred from suing for patent infringement related to future use of the cartridge, even if doing so breaches a contract with the consumers.
Indian law also traces a similar type of contractual relationship. "Package licensing" refers to the practice of a patent owner licensing multiple patents to a licensee for the purpose of commercializing an innovation. This is permissible provided the licensee selects each patent on a voluntary basis. On the other side, "coercive package licensing" refers to a technique where the licensee is coerced by the licensor to obtain a license for patents even when it is not necessary. Coercive package licensing is deemed unenforceable in India under Section 140 of the Patents Act.14
Balancing the Two Weights
The Competition Commission of India ruling in the Shri Shamsher Kataria versus Honda Siel Cars Limited & Ors.15 case, upheld by the now-defunct Competition Appellate Tribunal, marked a significant step in curbing anti-competitive practices within the automobile industry, even though the laws are not that harsh on consumers. The vehicle firms were found to have engaged in anti-competitive behaviour when they only allowed their authorized dealers to be the exclusive means of purchasing and selling goods and services. They were also found guilty of impeding the availability of spare parts for independent repairers. The ruling highlighted that Indian competition rules cannot be broken by using intellectual property rights as a shield. This important ruling protects consumer welfare by forbidding businesses from putting their own interests ahead of fair competition. Similar to this, it was decided in the Sanjeev Nirwani v. HCL case that Original Equipment Manufacturers (OEMs) are required to keep providing consumables and spare components, including laptop battery cells, even after the warranty has ended. 16
Conclusion
India's Right to Repair (RTR) movement is currently being advanced as part of the Lifestyle for Environment (LiFE) initiative, which advocates for reuse and recycling to achieve sustainable consumption. The Department of Consumer Affairs is actively developing a framework to empower consumers by providing access to repair manuals, spare parts, and diagnostic tools, particularly benefiting rural areas where service options are limited. This initiative aims to reduce electronic waste, extend product lifespans, and create job opportunities in line with the Aatmanirbhar Bharat Abhiyaan. The RTR policy seeks to address issues such as monopolized spare parts, warranties voided due to third-party repairs, and planned obsolescence. Drawing from international examples, including regulations in the USA, UK, and EU, India aspires to enhance its circular economy and support sustainable development.17
A significant challenge in this endeavour is navigating the constraints posed by Intellectual Property Rights (IPR). However, Indian legal frameworks such as the Competition Act and Copyright Act offer avenues to balance consumer rights with adequate protection for creators. Specifically, the limitations on fair use within the Copyright Act can be mitigated through legislative amendments that promote a broader interpretation akin to the US fair use doctrine. Moreover, enforcing stricter standards for design copyrights and ensuring adherence to established criteria can prevent companies from abusing design protection to restrict access to parts. Judicial decisions, such as those in the Competition Commission of India (CCI) cases, demonstrate a growing recognition of consumer rights and the need to limit the use of intellectual property to stifle competition.
As India's digital landscape continues to evolve, it is imperative that legal frameworks adapt to ensure a balanced ecosystem that fosters innovation while safeguarding consumer autonomy and promoting a sustainable repair culture. In advancing the Right to Repair, India must align its legislative and regulatory approaches to support this balance, fostering a robust and sustainable environment for both consumers and creators.
Footnotes
1. 3rd Year B.A.LL. B (Hons in Adjudication and Justicing) Student at Maharashtra National Law University Nagpur.
2. Subramanya, TR and Saroj, Nidhi (2023) "Is right to repair one's own good a Consumer Right? An analysis
of the changing dimensions of consumer rights in India.," International Journal on Consumer Law and
Practice: Vol. 11, Article 9: (https://repository.nls.ac.in/ijclp/vol11/iss1/9/) accessed on May 30, 2024.
3. Subramanya, TR and Saroj, Nidhi (2023) "Is right to repair one's own good a Consumer Right? An analysis
of the changing dimensions of consumer rights in India.," International Journal on Consumer Law and
Practice: Vol. 11, Article 9: (https://repository.nls.ac.in/ijclp/vol11/iss1/9/) accessed on May 30, 2024.
4. Aaron Perzanowski, Before the United States House Committee on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet 118th Congress Hearing, Is There a Right to Repair? July 18, 2023.
(https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/perzanowski-testimony.pdf )accessed on May 27, 2024.
5. Aaron Perzanowski, Before the United States House Committee on the Judiciary Subcommittee on Courts, Intellectual Property, and the Internet 118th Congress Hearing, Is There a Right to Repair? July 18, 2023.
(https://judiciary.house.gov/sites/evo-subsites/republicans-judiciary.house.gov/files/evo-media-document/perzanowski-testimony.pdf ) accessed on May 27, 2024.
6. Masters of Oxford v. Narendra Publishing House,2008 (38) PTC 385 (Del).
7. Bhuvana S Babu, Doctrine of Merger and Copyright Law, Banana IP Counsels, Nov 23, 2015 (https://www.bananaip.com/doctrine-of-merger-and-copyright-law/ ) accessed on May 26, 2024.
8. Robert W. Gomulkiewicz, CONSIDERING A RIGHT TO REPAIR SOFTWARE, BERKELEY TECHNOLOGY LAW JOURNAL Vol. 37:943, (https://doi.org/10.15779/Z385M6277Z.) accessed on May 26, 2024.
9. UNDERSTANDING COPYRIGHT LAW IN THE CONTEXT OF REPAIR, Repair Org. (https://www.repair.org/copyright-infringement) accessed on May 25, 2024.
10. Tekla Corporation & Another versus Survo Ghosh & Anr (2014) 210 DLT 666.
11. Cello Household Product v. Modaware India pvt. Ltd. AIR 2017 Bom 162.
12. Whirlpool of India Ltd v. Videocon Industries (2015) 1 Bom CR 137.
13. ARYAVEER HOODA, PRIYA RAGHUVANSHI IP vs. The Right to Repair: deciphering the legal conundrum, The Leaflet, Oct 11, 2021. (https://theleaflet.in/ip-vs-the-right-to-repair-deciphering-the-legal-conundrum/) accessed on May 28, 2024.
14. ARYAVEER HOODA, PRIYA RAGHUVANSHI IP vs. The Right to Repair: deciphering the legal conundrum, The Leaflet, Oct 11, 2021. (https://theleaflet.in/ip-vs-the-right-to-repair-deciphering-the-legal-conundrum/) accessed on May 28, 2024.
15. Shri Shamsher Kataria versus Honda Siel Cars Limited & Ors., 2014 SCC Online CCI 95.
16.Subramanya, TR and Saroj, Nidhi (2023) "Is right to repair one's own good a Consumer Right? An analysis
of the changing dimensions of consumer rights in India.," International Journal on Consumer Law and
Practice: Vol. 11, Article 9: (https://repository.nls.ac.in/ijclp/vol11/iss1/9/) accessed on May 30, 2024.
17. Press Information Bureau (New Delhi), Ministry of Consumer Affairs and Food Distribution, "DEPARTMENT OF CONSUMER AFFAIRS SETS UP COMMITTEE TO DEVELOP COMPREHENSIVE FRAMEWORK ON THE RIGHT TO REPAIR, 14 July 2022 (https://pib.gov.in/PressReleasePage.aspx?PRID=1841403)accessed on June 1, 2024.
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