In the time of great litigation over multitudes of Constitutional rights, there might be a “right” that has likely not received enough public attention in India. The “Right to Repair” Electronics. While certainly not in the realm of constitutional rights or as important as them, the question regarding the ability of consumers to repair and modify electronics they own is interesting. The increasing need for such devices to conduct day to day affairs in society means that the access and control of them become crucial to our lives. While it may seem nonsensical to have a “right to repair”, the barriers to a Do-It-Yourself repair or by an independent repair shop are numerous. And might not be as straightforward as it seems.
The question of ownership in a digital world is an interesting and complex one, and more importantly an unresolved one. This also concerns the ownership of downloaded content such as music, shows or movies through services such as Spotify, YouTube or Netflix, however that is a different matter to the physical ownership of devices. In a world that sees the release of a latest updated smartphone with incremental upgrades every few months, devices become obsolete faster and faster.
Sustainability and Reuse is Promoted by Right to Repair
This obviously becomes an issue when considering sustainability. When it comes to recycling of e-waste, the efficiency is severely limited by the inability to recycle Printed Circuit Boards. Broadly, manual dismantling of e-waste is more efficient and effective than mechanical shredding.[1] These labour-intensive options are however not cost-effective unless the costs are extremely low.[2]
These constraints means that longer lasting devices are desirable, as can also be evinced from the reasoning provided by many for Apple’s superiority over Android: longer lasting devices with longer software support. Consumer pressure and competition with Apple has also pushed device manufacturers like Samsung to increase the support for software updates. The longer support cycle for Apple products had been touted as an advantage. Competition is obviously the best tool to create better devices for consumers.
However, companies like Apple and Samsung also block the access to diagnostic tools that would be required by independent repair shops to repair their devices. Apple famously denying Flexgate (concerning the MacBook Pro Computer’s malfunctioning backlight) and Bendgate (concerning the propensity of iPhone 6 to bend) has created a dent on this customer-centric image of the public as well. Apple’s service rules have also been accused of being unfair to its own associated repair outlets while keeping the requirements for independent Service Providers to have genuine Apple parts tight as well.
Repairing these electronic devices require information regarding the functioning of devices and calibrate or modify the functionality of devices. This is not only relevant for repair shops, but also for owners who wish to repair their devices on their own. This is the primary thrust for “Right to Repair” advocates.
Consumers have the right to repair their devices in name, but the constraints and barriers to such repair have increased exponentially. While some of this is due to the complexity of the devices, it is also a result of artificial barriers being enacted by manufacturers.
The Federal Trade Commission (FTC), the regulatory agency charged with competition law and consumer protection in the United States, had recently released a report titled “Nixing the Fix” on the right to repair. The Biden Administration is now planning to direct the FTC to draft regulation on the matter to “[create] greater competition in the economy, in service of lower prices for American families and higher wages for American workers” according to a Biden advisor, as per Bloomberg.
The new to-be-drafted FTC rules will concern not just smartphones and computers, but also agricultural equipment such as tractors. John Deere, a famous American Corporation that manufactures agricultural equipment, has seen their tractors hacked by owners using unauthorized software to make their own repairs. John Deere had signed an agreement in 2018 to provide the repair tools, software guides and diagnostic equipment available for ordinary farmers from January 01, 2021. However, John Deere has since backtracked and farmers have to continue relying on pirated software.
When almost all equipment has digital components that are required for interfacing with them, the owners of these devices can make these modifications only through software that is available exclusively to the company and its affiliated shops. This exclusivity is obviously important in driving company revenues in servicing, but there are legitimate concerns in allowing unfettered access as well.
Manufacturer’s Concerns are not Wholly Without Basis
Device manufacturers have pushed back against the right to repair on the grounds that self-repair can be dangerous, and also highlight security concerns in providing free access to diagnostic tools. The requirements of a possible right-to-repair legislation may also affect the ability of companies to make design choices, which may or may not constrain repairability.
The availability of diagnostic software or devices that are workarounds for access into user data or compromise the security of the device, such as an Apple Device that calibrates fingerprint identification, should be rightly limited to Apple’s own service centres or company-backed service centres.
There are legitimate concerns about DIY repair when smartphone devices, laptops and other devices have Lithium-ion batteries that can explode if handled improperly. However, these concerns exist for other devices and equipment as well. Manufacturers cannot rely solely on the argument of consumer safety - it has to be tempered with the knowledge that a consumer is also interested in self-preservation. Automobiles such as cars are arguably much more deadly devices, but they can be repaired by Company shops, associated mechanics and dealerships or by independent mechanic shops or dealerships. The argument that right-to-repair advocates make is not just regarding the ability to self-repair, but to get the same repaired by any qualified person.
Can the Automobile Industry’s Self-Regulation Show the Way?
The standard of right to repair for automobiles in the United States was created by self-regulation prompted by a single state’s intervention. The State of Massachusetts passed a right-to-repair legislation for motor vehicles, which prompted an MOU to be signed between automobile manufacturers and trade groups representing independent repair shops that created a broad right to repair in the United States. This was because automobile manufacturers did not wish to create an overlapping pool of legislation from fifty different states with differing requirements that would have created an overwhelming burden on them.
Massachusetts voters also recently passed another legislation that extended the right to repair telematics. Telematics in an automobile is a method to monitor the movement of automobiles using On-Board Diagnostic Tools to plot its movement. The new legislation requires that independent repair shops and dealerships be allowed to retrieve this data and give commands for repair maintenance and diagnostic tools.
The Possibility of Legislative or Regulatory Intervention
Self-regulation is not the only proposal that has been made. Most right-to-repair advocates have focussed on legislative intervention. While many State Legislatures in the United States have seen a failed attempt to pass a model legislation on the issue, the European Union (EU) has enacted a broad regulation which prescribes the types of parts and time periods during which the products should be available. While limited to certain household devices for now, the EU plans to extend the same to electronics as well in the future.
France also passed domestic legislation that requires the disclosure of repairability information with manufacturers required to rate the repairability of the device and how long the device can be expected to be used. The bill also imposes minimum periods of availability for spare parts, and reduced tax rates for more repairable devices.
While a newly industrialised nation like India cannot afford this form of excessive regulation like that of the European Union or the French in an attempt to create a circular economy [3], the creation of repairability of devices does not impose a substantial burden on manufacturers. The index can be instituted as an industry initiative to support the sustainability of devices, and lower tax rates for devices with a high repairability score can be considered by the GST Council. This could also drive consumer awareness and be a metric for comparison and analysis among devices.
In India, the Competition Commission of India had decided in a 2014 decision that spare parts should sell genuine spare automotive parts in the open market to independent repair shops. The issue of repair of electronic devices has so far not been subject to regulatory oversight.
The Issue Might not be Wholly Relevant in India Yet
The issue is more deeply felt in fully digitised society. India is still being driven towards such an end by cheap smartphones and even cheaper data. The growth of small independent repair shops that do both genuine original part repair and knock-off part repair means that the issue is more likely solving an imagined need for consumers than a present one. This does not preclude one from an anticipating need for such a mechanism. While a legislative intervention would unnecessarily constrain manufacturers, especially when we are promoting ourselves as a manufacturing destination, industry led initiatives should be encouraged to improve the repairability of devices.
While discussing the issue of right to repair, it is important to keep in mind that independent Repair shops are not acting based on virtuosity, but based on creating and augmenting their business model which depends on the availability of open-source access to tools and diagnostic software at the cost of those who might have made significantly more investment in associating with the company and in training is unfair. There is surely a middle line to be drawn in balancing the interests of the consumer, the manufacturer and manufacturer associated and independent repair shops.
The issue might seem straightforward as it can possibly be, but excessive regulation (such as requiring certain spare parts to be available for a longer period) can constrain innovation, as well as requirements over “easy repair access” can constrain innovation in more rugged products, especially in the portable devices market.
Moreover, India’s regulatory regime is also supremely complicated and burdensome, which makes one wary of more regulation. However small incremental steps can be taken towards greater access and service to consumers, such as the use of repairability scores and incentives for such gradation. India has a unique opportunity in not only providing itself as a manufacturing destination for electronics, but can also create an ecosystem that promotes greater sustainability.
End Notes
[1] For Example, 90% of gold in discarded Mobile Phones can be recovered through manual processes while only 26% is recovered through manual shredding, Recycling of critical resources - Upgrade introduction | IEEE Conference Publication | IEEE Xplore
[2] The Best-of-2-Worlds philosophy: developing local dismantling and global infrastructure network for sustainable e-waste treatment in emerging economies - PubMed (nih.gov)
[3] A circular economy is one focussed on creating a sustainable economic model onto itself by emphasising re-use, recycle, and remake, as opposed to a linear model.
Some additional thoughts The necessity of a right to repair movement in India is extremely doubtful as it stands today. While there are certainly benefits to creating a circular economy and a sustainable method of production, India’s impetus has to be higher economic growth. The issue of repair rights in this context takes a back seat. While I have proposed self-regulation as a way forward, the lack of any incentive for the individual manufacturers means it is a pipe dream.
It is arguably even more of a pipe dream to wish for the GST Council to incentivize a self-regulatory move for lower taxes. If the issue was considered by the Government, it would evolve into the creation of an agency like Bureau of Energy Efficiency that grades the efficiency of household devices. Which would not bode well, as it is certain that in the future the body will create significantly more pain through the proclamation of EU-style regulatory requirements. But a boy can dream of a world where repairability scores are an industry standard!
India can also possibly provide for an anti-tying provision as provided in Section 102(c) of the Magnuson-Moss Warranty Act in the United States, which prohibits companies from voiding a warranty based on the use of third-party replacement parts or independent repair shops.