This development is particularly worrying regarding modern technological devices such as smartphones, tablets, laptops, etc. Due to the complexity of these devices, a single broken or outdated component may render the whole device unusable. As these products are often extremely resource intensive in their production, the possibility to repair a faulty component could go a long way to reduce waste and improve sustainability.

EU to the rescue?

The good news: The EU is aware of the issue and has proposed a solution. In March, the European Commission proposed a Directive on common rules promoting the repair of goods. The proposed legislation aims to establish common rules to promote the repair of goods, and increase the level of consumer and environmental protection by making it easier for professional repairers to assess information and goods that are necessary to repair a product, such as technical documentation and spare parts.

The bad news: While the proposal makes a number of important steps, it fully disregards one of the key obstructions to repairs especially in modern products, namely copyright restrictions.

What could possibly go wrong?

Take the example of John Deere. Several years ago, the company which manufactures a wide range of machinery including tractors as well as household devices such as lawnmowers sparked a public debate following their decision to prohibit the repair of their tractors by third-parties on the basis of copyright restrictions. The company argued that despite the fact that a farmer may own the tractor, the underlying software which oftentimes has to be modified as part of a repair, is copyrighted by John Deere. As a result, farmers as well as professional third-party repairers were prohibited from fixing the machines and instead all repairs had to be conducted by shops specially authorised by the company, leading to delays and opening the door to predatory pricing.

Importantly, this argument is not exclusive to John Deere. In fact, many car manufacturers (including BMW, Ford, Mercedes Benz, Volkswagen and many more) argue that modifying the software in a purchased car violates copyright provisions.

The problem is also not limited to the US as proven by Apple when, in the late 2010s, the company fought a 3-year legal battle all the way up to the Norwegian Supreme Court to stop an independent repair shop from conducting screen replacements on iPhones on the grounds of trademark violations.

Where do we go from here?

In order to stop these practices and empower consumers, the EU legislator in the new Directive must make it clear that copyright and related rights shall not prevent the repair of goods.

Furthermore, in order to narrow the knowledge gap and reduce the risk of consumers becoming the victim of abusive pricing, consumers should also be granted access to repair information, such as manuals and spare-part catalogues.

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The EU Commission has been working to change that since 2019 and wants to make products placed on the market in the EU more sustainable. With the so-called “Sustainable Product Initiative”, it seeks to revise the Ecodesign Directive and, if necessary, propose additional measures. To this end, the Commission has now presented an initial draft regulation, which was open for public comment.

The initiative is intended to affect all products placed on the market in the EU as well as their individual components. The aim is to make them more durable, easier to reuse, more repairable, more recyclable and more energy-efficient. To this end, the Commission wants to standardize performance and information requirements and develop a EU-wide product passport.

This would aim to promote sustainable products and circular processes in all member states, “creating a larger and more efficient market and thus stronger incentives for industry to develop these products”.

Incentives instead of clear design specifications

This means that in the future, anyone who wants to buy an electric toothbrush, for instance, should be able to see at a glance whether the battery is replaceable or how the device compares with particularly durable toothbrushes. The underlying assumption is that if consumers then buy sustainable products more often, the overall longevity of products will improve.

The draft is limited to general performance specifications such as minimum or maximum values for product parameters and information requirements for such parameters. These are general statements intended to provide information about product performance, such as indicators of “ease of repair and maintenance.” These would be “characteristics, availability and delivery time of spare parts, modularity, compatibility with commonly available spare parts” and others. There are no plans to make it mandatory for products to be modular and compatible. That should be regulated by the market, as the Commission seems to think.

Comparability of products in terms of sustainability is overdue, but it is not enough. Whether products are designed to be repairable, whether relevant information is available for their repair, and how spare parts are actually provided should not depend on how high the demand for them is and how manufacturers react to it.

For example, whether products are accompanied by repair instructions says nothing about their quality and reparability. In addition to general information on products, there is a need for design criteria and specifications on how manufacturers must provide repair-relevant information. But these are lacking from the draft.

Open design and open hardware support sustainability

The draft regulation mentions that sustainable products should be reusable, upgradable, repairable and recyclable. All of this becomes much more low-threshold – and thus more likely – when a design is open. This is shown, for example, by Jérémy Bonvoisin in his publication “Limits of Ecodesign: The Case for Open Source Product Development“.

Here, the product developer analyzes 18 examples ranging from musical instruments to clothing to tractors and elaborates on how open source and sustainable product development are interrelated. The German Ministry of Research, in its report “Resource-Efficient Circular Economy”, also emphasizes that open design as well as open source are important conditions for the circular economy.

Open product development is therefore important for sustainable production. Products made of universally available parts and materials with an easy-to-follow, modular design are usually easier to creatively reuse, adapt, repair and recycle.

The idea behind open design and open hardware is to make products and their production more accessible. This is achieved, for example, through simple and easily understandable design, the use of generally known and accessible materials and components, and the use of production techniques and processes that are open to many. It is also important to have available documentation that makes it easier for manufacturers and consumers to work with a product.

Open source hardware also attaches importance to the fact that the openly designed products and their documentation are not protected by property rights such as patents or design rights. Everyone may and should be able to work with it – even commercially.

The sacred cow: intellectual property

These are the aspects that a forward-looking EU initiative should consider. It should specify concrete criteria for the open, modular design of products, as well as for opening up technology, for example by requiring CAD drawings of wear parts or circuit diagrams to be made available for troubleshooting.

But these specifications are missing, and that may not be a coincidence. Both widespread perceptions of what business models should look like and communications by the Commission, such as the report on the “New Industrial Strategy for Europe” published in 2020, stand in the way of a more open approach. This “Intellectual Property Action Plan” provides for “improving the fight against intellectual property theft.” So instead of making products more open, the EU is developing mechanisms to do the opposite.

The result is a picture of a policy that acts in the interests of an established economy instead of introducing innovative measures for sustainable products and production.

“Do you have a patent?” This is often one of the first questions a startup is asked after a pitch. Instead of the mantra “No property rights, no business”, we need an intelligent, open discussion and design of property rights. And the development of new business models based on them. There are concrete examples of this, such as the MNT Reform laptop developed in Berlin. This laptop is designed so that users can repair it themselves. Every part of the device can be replaced. To this end, the company publishes all the construction instructions and the complete design files, so that, for example, individual spare parts can also be reprinted in a 3-D printer. “After all, it’s not just about the material I sell. After all, it includes a brand, an ecosystem and services,” the founder says of the business model.

But the Commission has failed to map out such paths. Falling back on monopoly rights by default stands in the way of a transformation of our product worlds toward sustainability. A product passport, as provided for in the draft regulation, is not sufficient to initiate this change.

This article has been first published in German on netzpolitik.org (CC BY-NC-SA 4.0).

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