Disentangling the 'Right to Repair' sensu lato and its interaction with Intellectual Property Rights in the European Union

Abstract

The shift from a linear (take-make-consume-dispose) to the of the circular economy (CE) has been widely recognised as a key driver ecological sustainability. Contrary to linear business models, the CE aims to restore and regenerate resources and is characterised by a certain number of ‘circular operations’; incl. repair and maintenance. As a circular operation, repair and maintenance play an important role as it aims to extend a product’s lifespan, resulting in less waste. However, repair can be obstructed by a number of material and legal barriers, which become more and more pronounced with the computerisation of products. For this reason, the so-called ‘Right to Repair’ movement has become increasingly popular in recent years. Intellectual Property (IP) rights and trade secrets are among the barriers identified to repair and to circularity in general. With the exception of a specific intervention in design law, no changes to European Union (EU) IP legislation have been proposed to support (independent) repair services. Instead, the EU is facilitating the transition from a linear to a circular economy through other initiatives in EU consumer, product design, competition and data governance legislation. Rights and obligations under these instruments create together a right to repair sensu lato. The contribution investigates the relationship between selected instruments expressing a right to repair sensu lato and EU IP rights. To do this, the contribution first summarises how IP rights can serve as barriers to material and legal access to essential repair commodities. Essential repair commodities are defined as hardware (affordable spare parts and repair and maintenance tools), software and repair information. It then continues to describe provisions materialising the right to repair sensu lato. The selected instruments are Directive (EU) 2024/1799 on common rules on the repair of goods, Regulation (EU) 2024/1781 establishing a framework for the setting of ecodesign requirements for sustainable products, and Regulation (EU) 2023/2854 on harmonised rules on fair access to and use of data. For each instrument, the contribution scrutinises the scope of provisions that facilitate repair and their limitation. I further address the interaction between (i.) the instruments in themselves; and (ii.) EU IP rights. The contribution summarises its research results in a final, conclusionary chapter.