‘Right to repair’, the legislation India needs to save money, minimize e-waste

Product marketing and advertising companies usually valorise durability, but the technology industry thrives on not promising long-lasting products they sell. Although electronic devices are marketed as being “resistant to daily wear and tear”, you are expected and encouraged to replace them periodically. These “upgrades” are not always technically necessary; in fact, companies deliberately make products such that they outlive their usability even when a mere technical upgrade would have been the logical and cost-effective option for consumers.

These frequent, and unnecessary, repurchases have led to the mounting problem of  unwanted e-waste, apart from limiting affordability. The resulting lack of individual choice in the matter is also a significant issue. Consumers are forced to buy new devices because of planned obsolescence. More egregiously, consumers are forced to forsake their right to repair a device they have paid for, simply due to rules surrounding the modification of software that is contained within these devices. Companies thus assert their monopoly rights, privileging them over consumer rights in a way that is damaging to the public at large.

In an attempt to balance the rights of society vis-à-vis these corporations, the European Parliament recently passed a resolution mandating that certain household appliances such as televisions be allowed to be freely repaired for a certain time period. It also suggested standardisation of spare parts.

Here’s a lowdown on the issues of “planned obsolescence” and “right to repair”, in the Indian context. Globally, the right to repair movement has focused on the environmental impact of e-waste and the anti-competitive practices of manufacturers. In the US, federal legislation is silent on the issue, but there are ongoing efforts to introduce state-level laws enabling consumers to extend the life of their devices. We explain why the EU model is not perfectly transposable to India and why the codification of such provisions in Indian law must be done thoughtfully in tandem with the proposed data protection law and be strictly consumer-focused.

The “planned obsolescence” bug

Planned obsolescence is an old marketing concept. Manufacturers deliberately design and create products in a manner and in a form that limits their lives. The goal is to make sure that consumers buy new versions of these products on a regular basis. Thus, these companies are able to extract profits that are disproportionate to the marginal improvements or changes that the newer versions of the same product would otherwise have  commanded in the market.

Planned obsolescence can be implemented in various ways. Last year, France’s competition commission fined Apple Inc. 25 million Euros for not informing consumers that it was using software updates to slow down old iPhone models. Through such slowing down, a company can ensure that people cannot continue using old devices even if nothing is wrong with the earlier versions. Printers often contain chips that prevent ink cartridges from being used after a certain threshold of use. Apple uses a screw on its iPhones that cannot be unscrewed using normal screwdrivers. An egregious example is also mobile phone or earphone batteries that cannot be replaced, ensuring that any issues with the battery forces consumers to purchase a new device entirely.

The EU and the “Right to Repair”

In the EU, there have been concerted efforts to reduce the generation of e-waste by extending the life of consumer home appliances. The EU has aimed to significantly reduce its dependence on irreplaceable resources and become vastly more sustainable by 2050. Policy documents released over the last 5 years reveal that the European Parliament has proposed to implement measures to scale up existing resources and increase sustainability overall.

The objectives of a consortium of groups advocating the right to repair in Europe aligns with the EU’s policy goals to create a sustainable, clean and competitive tech marketplace. In November 2020, the motion to implement this was passed successfully and it came into force in March 2021. The major focus of this proposal is on consumer rights through responsible marketing, ending planned obsolescence and facilitating the right to repair and reuse appliances.

While civil society and activist groups have generally welcomed the resolution they have also pointed to its narrow scope. For instance, it does not take into account widely prevalent methods of inducing planned obsolescence. As the legislation arises out of a need to reduce e-waste, it targets devices rather than software. At the current juncture, large corporations enjoy an unprecedented monopoly; discrete categories such as hardware and software no longer suffice from a regulatory perspective. Tech monopolies have diversified in ways that require legislation to take both into account simultaneously in order to control their monopoly clout effectively. The EU law similarly places greater emphasis on reusability of devices, but only makes a  brief mention of mandating support in the form of accommodating software updates on “older” devices without compromising on the device’s features. But this may prove insufficient and may be difficult to implement.

The EU legislation does not account for the other consequences of forcing consumers to upgrade their devices. Effectively, this compulsion stifles the growth of an indigenous software and hardware industry. The narrow manner in which piracy and copyright are defined has the unintended — from a social perspective — effect of protecting the interest monopoly interest. Incidentally, this has come at great cost to citizens of the Global South who, in the COVID-19 pandemic, have now had to make an immediate and prolonged switch to online modes of communications whether for work, education or for a myriad other purposes since all of this has driven the use of app-based services that require hardware too.

A comprehensive legislation should recognise the blurring lines between hardware and software and look at device repair from the perspective of longevity of use. Unlike traditional household appliances, operating software installed on smartphones and laptops is integral to its proper functioning. Market practices that target software such as software locks and licensing restrictions render devices unusable without the latest updates. This aspect of obsolescence is not adequately highlighted in the EU law. Longevity should necessarily entail both software and hardware.  The right to repair legislations should incorporate issues pertaining to costs of re-purchasing and renewing software.

Software locks and repair

The manner in which software is developed and deployed also has implications for the right to repair devices. New legal mechanisms give more control to software manufacturers over how their software is used, even after products are sold. For example, software copyright holders can control whether people are allowed to make copies of their software and if they can modify it. The Indian copyright law under the Copyright Act of 1952 permits such controls, collectively known as digital rights management (DRM).

Effectively, the use of DRM means that manufacturers can induce obsolescence after sale as well. That is to say, manufacturers can prevent the repair of products if the repair involves a use of their software and will use DRM to introduce such a bar. A smart refrigerator can be programmed to break down (as planned), and, even if repairable, prevented simply because it is made illegal. This is because modification of the software is not allowed under the contract. This also means that a third party cannot repair your refrigerator. Either the manufacturer agrees to repair it, or you have to purchase a new one.

Two processes that are currently underway make DRM dangerous: One is the trend towards more licensing and less sale. Entertainment and even educational content is now increasingly being streamed rather than sold, reducing user control over such content. The second process, which is of greater significance in the context of this article, is that software, even when it is part of another product or appliance, say, a refrigerator, is increasingly considered to be licensed rather than sold. As more products start incorporating software and digital intelligence, they will bring with them these new methods of closed software and planned obsolescence. The European Parliament has not adequately addressed these worrying trends in the consumer appliance sector..

These developments make it imperative for India to consider incorporating into laws as appropriate the principles of free and open source software:

1.   The freedom to run software for any purpose as the user wishes

2.   The freedom to study and modify software

3.   The freedom to distribute copies of software

4.   The freedom to distribute copies of software that the user has modified

It is true that not all these principles will always be ideal to ensure a right to repair or to protect legitimate copyright interests. However, they are good benchmarks towards avoiding unnecessary locking of software, which is a practice that affects much more than software as the ecosystem of the Internet of Things (IoT) grows. It affects how we interact with every day devices.

Towards India-specific “Right to Repair” legislation

In the EU, the conversation around the right to repair is primarily focused on the environmental impact of e-waste and the need to make manufacturing sustainable. This approach presumes that individuals have the capacity to purchase updated devices at regular intervals. However, in India, the use of smartphones and similar devices is a relatively new phenomenon and there is widespread use of pre-owned devices and pirated software for word processing, design etc.

The pandemic has forced millions of users to adopt smartphones seemingly overnight and their usage is significantly different from those in Europe, for instance. In India, there is greater use of “light” versions of apps; users face language barriers in application or software interfaces; and, there are connectivity issues which affect performance. Another notable difference is the widespread sharing of a single device within a family or group of persons, which could potentially cause greater strain on the device and licensing issues with device software.

An analogous legislation in India should ensure that minimum specifications for download of applications are properly calibrated for the average Indian user. This would require them to provide regional language options as well as support for legacy devices.

The tech space in India is not a monolith. Although innovations and technological development here are on par with industry leaders in East Asia, Europe and North America, a large proportion of the Indian population does not have the infrastructure to access even the most basic technologies. Overhaul of the existing legislations in this space is the most feasible option for lawmakers looking to implement right to repair provisions in India.

Amendments to the Indian Copyright Act of 1952 and the IT Act of 2002 are needed in order to facilitate use of open software, which would enable users to extend usage of their “older” devices for a longer time, irrespective of what corporations may prefer. Specifically, an exception to software locks should be provided for the purpose of repair, such that consumers can copy software to maintain their devices or modify software to repair them.

In the EU, corporations have complied with regional modifications sought by regulators. There is no reason why they cannot comply with Indian right to repair regulations if and when they come into being. The Competition Commission of India, the Ministry of Electronics and Information Technology and other agencies ought to come together quickly to formulate guidelines to promote the right to repair.

Public welfare and the right to repair

The central purpose of the guidelines ought to be the promotion of public welfare, which maximises the impact of technologies on well being. There are issues of choice and affordability coupled with the exercise of fundamental rights and freedoms including but not limited to work, education and free speech.

During the pandemic our lives have become inextricably tied to internet-capable devices. Indians have relied on inexpensive smartphones and affordable data plans to come online.

Therefore, it is tangibly beneficial to look at the right to repair through the lens of consumer rights and digital freedoms. Removing barriers to access is a prerequisite for enabling local manufacturing and software development players to flourish. This is possible only through curbing the predatory practices of the software giants, which have used planned obsolescence and abuse of DRM in the guise of IP protections to thwart innovation and competition. It is indeed time to let a hundred flowers — native ones at that — bloom.

(Jai is a senior resident fellow at the Centre for Applied Law and Technology Research, Vidhi Centre for Legal Policy. Shrinidhi is a Delhi-based lawyer)