The U.S. state of New York recently passed the Fair Repair Act, which requires manufacturers to supply repair information, tools, and parts to independent repair shops and not just their own stores or partners. This provides consumers with the right to repair and refurbish their purchased goods. With access to relevant tools and repair manuals, independent repair shops will finally be able to compete with manufacturers. While this is a victory for consumer rights, privacy, security and quality concerns along with blatant intellectual property (IP) rights violations of the manufacturers cannot be sidelined.
What should be the scope of the right?
The scope of the right can only be determined in the domestic context of the country. We use complex machinery as compared to the past. For instance, air conditioners have largely replaced fans and coolers. An entire repair class is, in effect, denied its right to conduct business as it does not have the tools, parts, guidelines and technical know-how to repair these high-tech products. Further, the lack of certification/licensing of repair workers is seen as a reflection of their lack of skills. But a repair certification/licence can be allotted to those who pass certain criteria and skill tests. In addition to protecting their right to livelihood, it may also prove beneficial as tech companies are required to share their repair manuals with certified technicians.
Manufacturers claim that the quality and functioning of the product might be adversely affected if they allow repairs by consumers and third parties. These claims are not baseless, for in the absence of supervision, who will ensure the quality of spare parts and even the repair technique? The fear of manufacturers is so potent that they incorporate warranty clauses which lapse when the product is repaired by a third party. While necessary clauses to maintain the quality of the product can be included, a blanket waiver should be avoided. For instance, the quality assurance clause can be incorporated for use of company-recommended spare parts and certified repair shops. Making repair manuals available to certified business owners could go a long way in balancing the rights of consumers and manufacturers.
Additionally, manufacturers can sign a non-disclosure agreement to protect the IP with the certified repairers/businesses. Customers with access to genuine parts may also approach independent repair providers who may not offer the original manufacturer’s warranty but their own warranty. The aim is to protect the rights of all stakeholders.
Adequacy of Consumer Protection Act
Often, manufacturers reduce the durability of the product, compelling consumers to either repurchase the product or get it repaired at exorbitant prices affixed by the manufacturers. Specifically, this tramples upon the right to obtain information about the quality of the product, the right to procure products at reasonable prices, and the right to seek redress against unscrupulous practices. When read closely, the ‘right to repair’ can be said to be implicit in Section 2(9) of the Consumer Protection Act, 2019. This warrants some relief. Its apparent disregard merits an explicit insertion of a ‘right to repair’ clause in the said provision. This would make consumers more aware, provide tooth to an already implicit right, and aid in advancing repair-related liability on various stakeholders, including policy recommendations, pertinent amendments and even a specific law incorporating the right to repair to better implement it.
For instance, the product liability clause under Section 84 can be amended and expanded to impose product liability concerning various reparability parameters of the product. France requires manufacturers to display a repairability index on their products which consists of five parameters. This helps consumers understand if the products are repairable, difficult to repair or not repairable at all. The duration of imposing product liability may vary depending on the product and its longevity. Here, we can rely on the EU’s guidelines on Ecodesign for Energy-Related Products and Energy Information Regulations, 2021, which mandate manufacturers to provide spare parts for up to 10 years to avoid premature obsolescence.
The New York legislation is a reminder that it is time to not only acknowledge the right to repair of consumers but also respond to the corresponding rights of the manufacturers. This warrants some expedited policy changes to recognise the ‘right to repair’, be it through amendments in the Consumer Protection Act, 2019 or through a separate law.
Vershika is a Research Associate at the Rajiv Gandhi National University of Law, Punjab, and Mehak Bajpai is a Research Scholar at National Law University, Delhi. G.S. Bajpai, the Vice-Chancellor of Rajiv Gandhi National University of Law, Punjab, contributed to the piece