Achieving a (copy)right to repair for the EU’s green economy

Abstract

The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented. This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and by prohibiting circumvention of technological protection measures in software-enabled devices. In surveying proposed IP Right to Repair reforms in Australia and Canada, the article calls upon EU legislators to consider more strongly the role of IP laws in preventing repair. Moving beyond the enactment of new exceptions and limitations, the article proposes that EU legislators conceptualize the Right to Repair as a positive user’s right. Considering the social, economic and ecological benefits of increased access to repair, the authors contend that this requires exempting the application of exclusive rights where they impede repair activities, obligating rightsholders to provide access to repair information and software and stronger assurances to users and independent repairers through ex ante exceptions.