Dr. Matthew Rimmer, an Intellectual Property (IP) and Innovation Law Professor at the Queensland University of Technology (QUT), has called for urgent reforms to Australia’s patent laws to give people the ‘right to repair’ consumer goods.
Following a series of court cases, and a report by the Australian Productivity Commission, which has challenged the country’s product repair restrictions, Rimmer has proposed that these findings become crystalized within its patent law.
According to Rimmer, introducing competition oversight reforms could prevent firms from monopolizing aftermarket repair, while rapid advances in 3D printing are now necessitating such changes. Ambitiously, the Professor is also calling for the ideals behind the ‘Maker’s Bill of Rights,’ and ‘iFixit Repair Manifesto,’ to be embodied in the Australian legal system, but it remains to be seen if his calls will be answered.
Australia’s ‘right to repair’
As in many countries, the debate over the rights of Australian consumers to fix their faulty goods has ramped up over the last two or three years. After multiple calls from the country’s MPs for the farm equipment repair rights of their constituents to be respected in 2019, the then-Minister for Justice and Consumer Affairs, Shane Rattenbury, asked the Productivity Commission to conduct an inquiry into the issue.
However, the topic has proven multifaceted, as reforms not only raise IP problems, but ignite conflicts over copyright law, design protection and the wider ‘tethered economy.’ In fact, since the commission’s inquiry began, courtrooms around the world have been full of instances in which multinationals are suing for copyright infringement over minor repairs, making the issue monetary as well as ethical.
Just last month, for example, Apple litigated against a Norwegian repair shop for doing just that, and while Australia’s courts have also been inundated with similar cases, its judges are starting to take differing views. In one of the country’s previous cases, Seiko Epson accused one of its clients of infringing upon its copyright, by fixing rather than replacing one of its proprietary 2D printer cartridges.
Despite Seiko’s claim, the first Australian judge to review the case initially said that it raised issues of “patent exhaustion,” before a second ruling eventually went against the defendant, on the basis that the “modifications did not amount to repair.”
Taking these arguments into account, the Commission ultimately reported earlier this year that the country’s Copyright Act could be amended to include a ‘fair usage exception,’ to allow for one-off repairs, but stopped short of proposing the introduction of a ‘general defense,’ something Rimmer says is essential to “rebalancing the patent regime.”
Rimmer’s reform proposals
In an early edition of Rimmer’s paper, he has questioned why there’s a spare part defense under Australian design law but not its patent law, and claims that introducing one would allow consumers and SMEs to “repair patented inventions without fear of litigation.”
One way Rimmer recommends achieving this is via an amendment that requires compulsory licenses to pass a ‘public interest’ test, in which the needs of the public are balanced against those of the patent holder. In some of his other proposals, Rimmer also calls for the Australian Competition & Consumer Commission to more proactively break up aftermarket monopolies, as well as wider patent law reforms.
With regards to 3D printing, for instance, Rimmer’s report recognizes the maker movement’s potential in developing more cost and eco-efficient spare parts. He has therefore called for patent law to be “well-adapted” in order to meet the “fourth industrial revolution” head-on, by adopting the spirit of the Maker’s Bill of Rights and the iFixit Repair Manifesto.
Backed by a crafting magazine and repair firm, the two campaigns revolve around the idea that ‘if you can’t fix it, you don’t own it,’ and champion makers’ rights over the IP owners of consumer products. Given that the two documents call for reforms that effectively benefit their readers and businesses, their demands are logical, but also unlikely to be adopted due to their anti-regulatory stance.
That’s why Rimmer rounded off his study by identifying a “groundswell of support” for reforms in other countries around the globe, and imploring Australian leaders to take part in the wider debate, given 3D printing’s growing sustainability credentials.
“There has been an increased interest in right to repair amongst developing countries, [particularly in] making use of IP flexibilities to better take into account the United Nations Sustainable Development Goals,” said Rimmer in his paper. “There should be international action on the topic in relevant forums such as the World Intellectual Property Organization, WTO and the UN Development Program.”
“While [my] paper has presented an Australian story about the right to repair, it’s clear that there is a larger international debate.”
A global repair debate?
Rimmer’s findings follow similar inquiries in the U.S and Canada, as well as the UK and other EU countries, into the role 3D printing has to play in striving for a more circular economy. Earlier this year, the EU actually passed new legislation through the European Parliament, which required white goods manufacturers to make spares available for at least 10 years after their products have launched.
At the time, the 3D printing industry did highlight some concerns around IP protection and data security, but firms also fed back that the changes could help ease the introduction of the EU’s upcoming Ecodesign regulations, as well as potentially encouraging new clients to adopt in-house manufacturing and digitize their inventories to stay compliant.
More broadly, the right to repair debate has also raised concerns among IP holders that those with desktop printers will be able to replicate their patented property without paying for it. Again, EU-focused groups have covered spare part printing extensively recently, with the ECTA making its position clear in March, that a balance needs to be found between “total liberalism” and “exclusivity of design rights.”
Rimmer’s full findings can be found in his research paper titled: “The Right to Repair: Patent Law and 3D Printing in Australia.”
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Featured image shows the Queensland University of Technology’s law campus. Image via Dalhousie University.
