It could well be the reform that no-one expected in our consumer obsessed world: the potential for a “right to repair rule” that could end planned obsolescence by many manufacturers and expand freedom of choice for consumers when repair is possible.
The Productivity Commission is investigating the “right to repair” as a way to stop piles of expensive electronics and appliances ending up in landfill and to squeeze out longer product lifecycles.
The inquiry, first flagged by The Fifth Estate in October, is happening at the request of the Treasurer Josh Frydenberg.
Griffith Law School academic and right to repair expert Leanne Wiseman says the release of the discussion papers this week follows investigations by the Australian Competition and Consumer Commission into the car repair aftermarket.
She says consumers have been finding it increasingly difficult to access car repairs outside of authorised manufacturer networks, and that industry has come up with countless clever ways to keep consumers locked-in to overpriced repairs through the car manufacturers.
This includes offering extended warranty periods in exchange for sole use of the manufacturer’s repair services.
This has prompted the introduction of a mandatory scheme for manufacturers to share car repair diagnostic information with third parties. It seemed to whet government appetite for other “repairability” issues.
According to Wiseman, there is also appetite in Australia to push back against strict IP rights that limit reparability. In a landmark case, the High Court ruled in favour of a company being sued for filling up used printer cartridges with ink by the manufacturer of the cartridges.
The ruling was based on the what’s known as the “exhaustion doctrine”, Wiseman explains, which is a rule of law that states that once something is sold, its IP rights disappear.
ACT Minister for Consumer Affairs Shane Rattenbury played a key role in securing Commonwealth, state and territory support for the wide-ranging inquiry into the right to repair by bringing it to the forum of consumer affairs ministers in Australia and New Zealand.
This prompted Federal Minister Michael Sukkar to write to the Treasurer to add the issue to the Productivity Commission’s agenda, and received the support of Minister for the Environment, the Hon Sussan Ley, as a way to reduce waste.
Ewaste Watch Institute director and co-founder John Gertsakis says that the inquiry marks a “significant first step” to reduce waste by keeping products in use for longer.
But he doesn’t want to see the matter fizzle after the initial analysis and discussion stage.
“It will require well-resourced follow-up by relevant government agencies and departments to ensure specific actions and measures are development and implemented.”
Gertsakis would also like to see government using its buying power by ensuring “‘repair’ and reuse are valued and rewarded in tenders and purchasing where appropriate, practical and safe.”
The right to repair movement
The right to repair movement is believed to have started in the car industry in Massachusetts with mechanics and amateur tinkerers demanding access to spare car parts and diagnostic information to repair motor vehicles.
The rise of digital technology in just about everything has complicated the matter, raising issues around intellectual property rights, the capability of a layperson to fix it themselves and massively broadening the product categories plagued with “it’s cheaper to buy a new one than repair it.”
Tech giants such as Apple have come under fire for various complaints relating to the right to repair. In 2018, the company was found to be a breach of Australian consumer law and fined $9 million for advising consumers that their warranty would be disregarded if they took their iPhone to a third-party repairer.
Wiseman says that it is possible to manage IP in digital products while still allowing repairers to operate competitively.
Regulations here and overseas
The inquiry considers right to repair policies in other countries, with parts of Europe and the US streaks ahead of Australia.
In the notoriously litigious US, the focus has been on the tension between intellectual property rights and the accessibility of consumers and third-party repairers to the tools, spare parts and information to fix products.
Following landmark legislation in Massachusetts to dismantle barriers to vehicle repairs, these rules have since been adopted in an industry wide agreement, with proposals to extend this type of legislation to digital products such as household appliances and digital phones.
In Europe, the focus is on designing products that are reparable with tools commonly found in the home. The EU Ecodesign Directive calls on manufacturers to design products for easy disassembly and for spare parts to be available for a specified time span.
France has particularly strong “right to repair” rules. It recently launched a star rating that ranks a product’s reparability form a scale of one to five.
It is also illegal to intentionally shorten the lifespan of a product, a law that saw French prosecutors investigate Apple’s use of software upgrades to slow down older models and prompt consumers to upgrade (the company claimed this was a limitation of phone battery performance, which degrades over time).
The country also offers subsidies for repair, as does Sweden and Portugal.
The commission details the existing regulatory landscape that may influence a consumer’s right to repair. This includes consumer protections and assurances laid out in Australian Consumer Law, which includes having spare parts and repair facilities “reasonably available for a reasonable period”.
The inquiry recognises that this language is vague and that “a reasonable period” is up for all sorts of undesirable interpretations.
John Gertsakis says it’s useful to learn from what’s going overseas but that Australia needs to develop its own policies and solutions.
“We need to co-design and co-create repair solutions for the Australian context rather than mimic measures or laws adopted overseas.”
He says that although the early mover nations have set the stage for a global market more attune to the benefits of repair and reuse, the progressive policies in the EU and elsewhere haven’t quite prompted a revolution in products offered by global companies that Australia will benefit from.