Reconciling Right to Repair and Intellectual Property Rights: An Indian Perspective

Right to repair is a global movement to empower consumers and an important step towards achieving a more circular economy. Anti-competitive practises adopted by the original equipment manufacturers (OEMs) in restricting repair activities, are a rather regretful stricture in achieving this new-age consumer right. India is also set to introduce a regulatory framework on the right to repair and the Ministry of Consumer Affairs in July, 2022 has set up a special committee to make recommendations for the same. The aim is to empower the consumers and product buyers in the local market, harmonize trade between the OEMs and the third-party buyers and sellers, emphasize on developing sustainable consumption of products and reduction in e-waste. On one hand right to repair is becoming indispensable for achieving sustainable development goals (SDGs) and a circular economy, on the other hand IP rights have emerged as the most potent barriers in restricting this right.
Copyright is impeding access to repair information and anti-circumvention laws protecting technological protection measures (TPMs) used by manufacturers, is controlling repair of software-embedded products. Trademark implications may follow from use of replacement parts which are affixed with microscopic logos or when the shape of the part is itself trademarked, which restrain the independent repairers from refurbishing or repairing these products. Furthermore, repairing of the patent protected product may amount to reconstruction and thus trigger patent infringement. The danger of a possible legal liability under the present IPR regime looms over the small-scale and independent repairers, which may deter the uninformed independent repairers and consumers from exercising the right to repair in its entirety.
To this aim, the present article is an earnest attempt to enumerate some instances of IP rights which may possibly curtail the right to repair and the exceptions against such IPR infringement claims, if any, available under the current Indian IPR regime for purposes of repair. Other than stating the status quo of the confrontation of IPR with right to repair in the Indian legal landscape, the article also attempts to suggest some solutions to reconcile the two rights without prioritising one over the other. These recommendations include: clarifying the scope of patent exhaustion under the Indian patent regime to allow repair of the patented products for their continued use, introducing a repair specific exception under the Indian copyright regime to allow the access to copyrighted information and embedded computer codes hidden behind the mirage of digital locks and taking a cautious approach while granting trade mark registration to microscopic marks or shapes of individual parts.