A full discussion of the interplay between intellectual property and repair is beyond the scope of this report.[1] Nonetheless, while it is clear that manufacturers’ assertion of intellectual property rights can impede repairs by individuals and independent repair shops, in many instances intellectual property rights do not appear to present an insurmountable obstacle to repair. For instance, as to copyright law, Section 117(c) of the Copyright Act provides that an owner or lessee of a machine may make a copy of a computer program for purposes of maintenance or repair.[2] Moreover, in its most recent exemptions to the Digital Millennium Copyright Act’s anti-circumvention provisions,[3] the Librarian of Congress has permitted the circumvention of TPMs to diagnose, maintain, or repair motorized land vehicles, smart phones, home appliances and home systems.[4] As to trade secrets, information that manufacturers already share with authorized repair centers may not qualify for trade secret protection. With regards to other possible trade secrets, model right to repair legislation exempts trade secrets from disclosure. With respect to patent law, patents could potentially impact competitive markets for repair parts if there are valid and enforced patents protecting component parts; however, only two commenters noted that manufacturers’ assertion of patent rights impedes independent repair.[5] Thus, it is not clear that manufacturers are readily turning to patent law to prevent independent repair shops from obtaining spare parts.[6]
Manufacturers argue that repair restrictions protect repair workers and consumers from injuries that could result from fixing a product or using an improperly repaired product. According to manufacturers, safety risks are mitigated when repairs are performed by authorized repair persons because their contracts with such persons ensure that they have been properly trained and “have the necessary skills to safely and reliably repair products to OEM specifications and standards with OEM-quality parts.”[7]
Individuals and independent repair shops, manufacturers assert, are unlikely to be aware of the dangers inherent in some repairs and may be injured as a result. For instance, GE Appliances explained that an untrained person attempting to repair a microwave oven could be injured because, “internal microwave oven capacitors can discharge current even when not
- ↑ Commissioner Wilson and Commissioner Phillips note that it is difficult to conduct a full weighing of the cost and benefits of repair restrictions without an analysis of the intellectual property rights of manufacturers.
- ↑ 17 U.S.C. § 117(c).
- ↑ 17 U.S.C. § 1201.
- ↑ 37 C.F.R. § 201.40 (2019). The Digital Millennium Copyright Act prohibits circumvention of technological measures that control access to copyrighted work, but provides the Librarian of Congress with the authority to create temporary exemptions to this prohibition. One commenter has noted, “While the 2018 exemptions are exciting news for the repair movement and provide individual consumers with greater freedom… a major downside is that these exemptions are temporary.” Leah Chan Grinvald & Ofer Tur-Sinai, Intellectual Property Law and the Right to Repair, 88 Fordham L. Rev. 63, 105 (2019). Another limitation of the exemptions is that repair shops that circumvent digital locks could possibly be liable for violating the DMCA’s anti-trafficking provisions if they use repair manuals provided by third parties online. Id. at 106.
- ↑ See supra at Section IV.E.
- ↑ If assertion of patent rights were to become a significant obstacle to independent repair, Congress could consider how to strike the appropriate balance between incentivizing innovation through patent law and ensuring competitive repair markets.
- ↑ Joint Comment, at 3.
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