By Associate Professor Leanne Wiseman
Griffith Law School
In the past decade, we have seen a rapid increase in the products Australians use everyday that now require a computer program to enable the device to operate. It is as a result of this, that we are now seeing the impact that copyright (and the regime of technological protection measures (TPMs) used by copyright owners to control their digital works) has on daily life that was not envisaged in the late 1990s, when the current scheme of TPMs were first proposed.
A myriad of modern appliances and machinery, including toasters, printers, microwaves, fridges, phones and cars are now controlled by computer software programs. The copyright owners of the software programs that control these devices are able to employ TPMs to prevent purchasers of these devices from accessing the control mechanisms. While this may be a reasonable exercise of a copyright owner’s rights, in some circumstances, there are situations where a consumer or user may wish to access the control mechanisms for reasons other than an act that would constitute an infringement of copyright. The need to repair, modify or calibrate the product or device may be one such circumstance.
The application of the regime of TPMs to everyday devices, including motor vehicles and agricultural machinery, has been the source of much concern and has attracted much attention and debate over recent times in the United States.
The position under the US TPM Scheme
The US scheme of TPMs was introduced into their Copyright Act in 1998 as a result of the passing of the Digital Millennium Copyright Act 1998 (DMCA) (US). The DMCA codified in part in 17 U.S.C. § 1201, makes it illegal to circumvent technological measures that are used to prevent unauthorised access to copyrighted works, such as including books, movies, videos, games, computer programs. In this respect, it is not unlike Australia’s TPM scheme.
Section 1201, however, also authorises the Librarian of Congress to make determinations in a rulemaking proceeding every three years, upon the recommendation of the Register of Copyrights, evaluating and, as appropriate, adopting limited exemptions from the general prohibition against circumvention of access controls. One category of exemptions that was proposed in December 2014 was Proposed Class 21: Vehicle Software—Diagnosis, Repair, or Modification.
The Library of Congress proposed that this class of exemption would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Under the exemption as proposed, circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.
Many submissions were received in relation to this proposed class of exemption. The Electronic Frontier Foundation and the University of Southern California
were very supportive of a right of a farmer to repair or modify their agricultural machinery. In fact, the right to repair movement garnered most of its support from US farmers. In effect, their argument is that, without such an exemption, copyright could be used to prevent a farmer from fixing his tractor or combine harvester – given that they are now sophisticated machinery run by complex computer software protected by copyright. The plight of farmers who are unable to repair or modify their tractors or farm machinery due to the technological locks imposed by owners of the proprietorial software that is now ubiquitous within the agricultural industry was also highlighted by a number of other submissions.
John Deere Pty Ltd, along with automotive manufacturers, made lengthy submissions to defend (primarily on the basis of environmental and health and safety reasons) against any suggestion that there be exemptions introduced to s 1201 to enable a right of repair to circumvent digital locks on mechanized vehicles.
However, on October 28, 2015, The Library of Congress, which oversees the US Copyright Office, agreed that an exemption should be granted to circumvent technological protection measures for ‘the diagnosis, repair or modification of machinery.’ The Register, in reaching that conclusion observed that ‘owners of vehicles and agricultural machinery are adversely impacted as a result of TPMs that protect the copyrighted computer programs on the ECUs that control the functioning of their vehicles.’
The Register concluded that ‘reproducing and altering the computer programs on ECUs for the purposes of facilitating diagnosis, repair and modification of vehicles may constitute a non-infringing activity as a matter of fair use. The recommended exemption excludes computer programs in ECUs that are chiefly designed to operate vehicle entertainment and telematics systems due to insufficient evidence demonstrating a need to access such ECUs, and out of concern that such circumvention might enable unauthorized access to creative or proprietary content’.
Accordingly, based on the Register’s recommendation, the Librarian adopted the following exemption:
Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.
The right to repair debate has gathered momentum in the US since the recognition of the right to repair vehicles and machinery was introduced in 2015. The US Right to Repair movement is advocating a right to repair across multiple manufacturers and devices (not just in relation to the modification of vehicles or machinery). In March 2018, California became the 19th State in the US to propose a Right to Repair Bill (including Hawaii, Illinois, Iowa, Kansas, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Oklahoma, Tennessee, Vermont, Virginia, Washington, and Wyoming). The Right to repair movement has gained more momentum in recent months by the “concerns raised over the iPhone battery performance, which increased concerns over planned obsolescence and led consumers to seek iPhone repairs over replacements. Spurred by constituents angry with Apple’s handling of the iPhone issue, Washington’s version of the legislation proposed an outright ban on devices with hard-to-replace batteries.” https://venturebeat.com/2018/03/08/california-joins-18-states-proposing-right-to-repair-act-takes-on-new-lobbying-group/
Given that reproducing and altering the computer software for the purposes of facilitating diagnosis, repair and modification of vehicles has been accepted as a non-infringing activity as a matter of fair use in the United States since 2015, this move has caused many farmers in Australia to ask a similar question: Are TPMs operating in industries in such a way that restricts the rights of consumers to access their goods or products in a way in which they would normally expect to?
There are actually two parts to the right of repair debate as it relates to the agricultural industry, as Mick Keough observed in 2017, in his role of Executive Director of the Australian Farm Institute. ‘The first being the ability of independent repairers and owners to access diagnostic tools and spare parts, and the second being rights over access and use of software and data associated with a particular machine. The former issue is one that is particularly relevant to owners of tractors and farm machinery in Australia. Frequently, dealerships are located long distances apart, and a lack of internet connectivity means that online monitoring and diagnostic systems – especially for high-performance farm machinery – are less than effective. This can render farmers helpless at critical times such as harvest, when a breakdown can mean large financial losses, local repairers are unable to assist, and spare parts must be ordered from distant centres and even from overseas. (http://www.farminstitute.org.au/ag-forum/right-to-repair-debate-highlights-critical-issue-of-data-rights)
Western Australian grain farmers have highlighted that callouts to some of their more remote grain farms can cost $1000. Australian farmers not only have to adapt to farm machinery that is built and tested in overseas conditions but point out that “It’s not like in America where there’s a dealer around the corner who can get on their computer and sort the issue out for you. What we’re left with is being 120kms away from the dealer, it’s an hour and a half trip for a dealer to come out with his mechanic, plug his computer in, do his little stuff [then] five minutes later turn around and drive for another hour and a half to go home.’ (Mochan and Bennett, Farmers driving ‘right to repair’ issue as legislative battle unfolds in US, https://www.abc.net.au/news/rural/2018-03-11/farmers-spearhead-right-to-repair-fight/9535730)
While recent reviews of Australia’s copyright law have recommended the adoption of a broader US style fair use defence, it remains to be seen whether Australia will ever adopt a fair use defence and whether a similar right of repair to that in the US would be one such use that could arguably fall within its scope.
This is one of the many issues that are currently being examined by Associate Professor Leanne Wiseman and her researchers as part of a larger research project on the Legal, Social and Ethical Dimensions of Digital Agriculture.
This post by Associate Professor Leanne Wiseman is based on a research article (forthcoming) by Associate Professor Leanne Wiseman and Lucas Davey.