Different shades of the right to repair: A comparative overview

Authors:

Beata Mäihäniemi (PhD, Docent in Law and Digitalisation, University Lecturer)

Dhanay Cadillo Chandler (PhD, Docent in Intellectual Property law, University Researcher)

Emmanuel Salami (PhD)

Rosa Maria Ballardini (PhD, Title of Docent in Intellectual Property law, Professor)

Beata Mäihäniemi

Dhanay Cadillo Chandler 

Emmanuel Salami

Rosa Maria Ballardini

1. The right to repair - a right or a movement?

With many modern products, such as iPhone screens, being very fragile and therefore breakable (Attitudes towards the impact of digitalisation on daily lives), and with more than two billion tonnes of municipal solid waste generated worldwide each year (Statista 2024), repair could significantly minimise the amount of waste we throw away. Repair is much cheaper and easier to implement than, for example, remanufacturing or recycling (Roskladka et al 2023).

However, third party repairs can also affect the safety of end users and lead to liability for manufacturers in the event of injury caused by an improperly repaired product (The Right to Repair: Recent Developments in the USA). Similarly, unauthorised repairs can lead to an increase in intellectual property infringements (Pihlajarinne and Ballardini, 2021), particularly in the case of high-tech and complex products, such as smartphones. However, the availability and affordability of spare parts and the provision of the necessary information to carry out repairs efficiently can reduce IPR infringements. While this could benefit manufacturers, it also benefits the environment and reduces waste by extending the life of affected products.

Repair can be understood in many ways, such as:

1. the obligation of a producer to repair a product bought by a consumer while it is still under warranty
2. repair after the warranty has expired
3. the technical ability of a consumer to repair the product himself.

It is therefore incumbent on producers to remove barriers that might prevent repairing of their products. These include inadequate information, product design that prevents repair or lack of spare parts (De Vries and Abrahamson 2022).

A tailored review and regulatory approach to the so-called 'right to repair' (R2R) can benefit multiple stakeholders and the environment.  We therefore aim to highlight a global regulatory approach to the right to repair through a comparative perspective of legal approaches in Europe, the US and two selected developing countries, namely Chile and Nigeria. This comparison is illustrative to show the many different faces of the right to repair, whether it exists as a social movement or a legal construct, whether it is addressed in the context of other broader laws or as a separately regulated legal right, and to highlight where the focus and rationale of such a 'right' actually lies.

2. The right to repair in the EU and the US 

In Europe, the right to repair is much more than just a right to get your product working; it has a deeper, transformative meaning and brings not only legal but potentially also social and geopolitical changes. It broadly supports environmental concerns and promotes the transition to sustainability. The Brundtland Report of 1987 provides guiding principles for sustainable development and sees the roots of the environmental crisis in both the economic underdevelopment of the South and the over-consumption of the North (Brundtland Report 1987). The right to repair could also be seen as an action to promote degrowth, i.e. 

a performative fiction, used to mean the need to break with the cycle of productivity; it is not originally a concept, much less a symmetrical opposite of growth. It is a political watchword, a provocation, that principally aims to help restore a sense of limits. Degrowth does not look for recessions or negative growth; the word should not be taken literally.(Latouche 2020). 

The European initiative on the right to repair is largely based on the  Directive on repair of goods, which was adopted on 13 June 2024 and entered into force on 30 July 2024. Member States must transpose it into national law and apply it from 31 July 2026. It focuses on the following points:

1. Manufacturers must repair a product at a reasonable price and within a reasonable time after the legal warranty period;
2. Access to spare parts, tools and repair information for consumers;
3. Incentives to opt for repair, such as repair vouchers and funds;
4. Online platforms to help consumers find local repair services and shops selling refurbished goods (Right to repair: Making repair easier and more appealing to consumers).

Moreover, the right to repair is also regulated at European level in several other areas of law (e.g. consumer law, intellectual property law, eco-design law and data sharing law), which regulated such a right before the introduction of the Directive on the right to repair.

In the US, the competition case arose with agricultural equipment manufacturer John Deere, which is the subject of a class action lawsuit over the right to repair. The arguments in the case are based on an attempt to monopolise the agricultural equipment market by denying farmers and small workshops access to software and repair tools (The Right to Repair: Recent Developments in the USA, see also Court Seeks Hearing in Deere R2R Case). Despite the compromise reached between John Deere and the American Farm Bureau Federation, in which the company agreed to allow farmers and small repair shops to repair its machinery in the absence of specific legislation, the case is still pending in federal courts (ibid.). 

In addition, most of the US states have started working on their legislative proposals, with New York introducing the first right to repair electronics in the US, the "Digital Fair Repair Act" (ibid.), and California, which will require manufacturers to diagnose, service or repair products for a period of seven years if the price of the product is over $100, three years if the price is over $100, and three years if the price is under $100 (Right to Repair 2023 Legislation).

3. Experiences from Chile 

The R2R movement in Chile began as a social movement to raise people's awareness of consumption, with the main aim of reducing waste and recycling by encouraging people to repair items instead of disposing of them (Fundación Basura, 2020). Some non-profit organisations have emerged, but there is no formal law to support the movement. The repair, maintenance or upkeep of products is an issue dealt with at the level of consumer law, in the Chilean Consumer Protection Act of 1997 (CCPA). - (Ley N° 19. 496). Art. 19 from the CCPA establishes statutory rights for repair and replacement of goods under warranty. Thus, in principle, the right to repair in Chile seems to be more of a matter of contract and consumer law (Andrade 2022) than the actual meaning of the social R2R movement.

From the perspective of consumer and contract law, the right to repair as found in the CCPA is both a right and an obligation to the parties that defies any sustainable development rationale. R2R as a social movement, on the other hand, seems to have a completely different basis. In both cases, IPRs are not necessarily addressed. For example, the right to repair as conceived in the EU does not exist in Chile. Although it seems to salvage principles found in both the EU and the US, it remains at the level of a social movement. In 2022, Chile considered a new constitution that would have included a repairability label. The constitution was rejected, but the fight for the right to repair continues (The Right to Repair Movement is Everywhere).

4. Experiences from Nigeria 

The Nigerian legal framework has not yet codified the right to repair. However, there is an informal but vibrant repair industry for several products in the Nigerian market. These products include washing machines, laptops and smartphones, wristwatches, electronics such as radios and televisions, to name but a few. This is likely due to the lower cost of repairs compared to the cost of buying new products. A further boost to Nigeria's informal repair sector is an informal apprenticeship structure that supports the development of product repair skills. (Nigeria: A Right-to-Repair Superpower).

Though alien to Nigerian jurisprudence, the right to repair has attracted the attention of non-profit and public interest organisations in Nigeria who are campaigning for its recognition (see for instance, Policy Lab Africa,  Projects  Right to Repair). It is argued that some form of regulatory ingenuity with existing laws, such as the Federal Competition and Consumer Protection Act 2018 (FCCPA), could be helpful in introducing and regulating the right to repair without necessarily enacting a new law for this purpose. This is particularly important to minimise government costs by avoiding the need for new laws and government agencies. For example, under Section 114 of the FCCPA, "the right to product information in plain and intelligible language" could potentially be interpreted to include a right to information on the repair of the relevant products.

5. Conclusions 

In the jurisdictions briefly examined, the right to repair has two dimensions: the right as a legal right, as conceived in the EU and the US, contrasted with the right as a social movement in Chile and Nigeria. In countries where the right to repair is regulated by specific laws, or where the law is designed to deal with repairs, as in the EU and the US, the law may be based on different rationales, as the right emerged after the development of certain industrial sectors.  

From the bird's eye view of R2R, we can conclude that the need to address environmental challenges seems to be driving R2R as a social movement in countries such as Chile and Nigeria. In addition, from a legal perspective, R2R addresses contractual and competition law challenges. However, whether as a social movement, doctrine or law, R2R has the potential to fulfil both environmental sustainability and other societal values.