Repair and Recycle between IP Rights, End User License Agreements and Encryption
SPARES, REPAIRS AND INTELLECTUAL PROPERTY RIGHTS, pp. 21-56, C. Heath & A. Kamperman Sanders, eds., Kluwer Law International, September 2009
Posted: 1 Apr 2010
Date Written: September 5, 2009
A wide range of everyday products that can be protected by various intellectual property rights (“IPR”) can be repaired or recycled. This includes mainly technical products such as vehicles (cars, planes, trucks, ships), electrical appliances (printers, photocopiers, phones, radios, CD, DVD and MP3 players, irons, ovens, mixers…), buildings, as well as hardware and software. It also sometimes involves “purely artistic” works such as literary, musical, dramatic, audiovisual and artistic works, films and sound recordings if they have been damaged and need to be restored.
This article deals with the question whether it is lawful to block repair and recycle of intellectual property-protected products by way of end user licence agreements (EULAs) or technological protection measures other than software (TPMs). Before this question can be answered, it is necessary to ascertain what repair and recycle mean and what their legal effects are. It must then be determined whether under the copyright, design, patent and trade mark laws, there is a user’s right to repair and to recycle the protected products they purchased. This is what the first section will attempt to discover. Thereafter, the central question can be tackled, i.e. if those rights exist, are they imperative? In other words, are those copyright, patent, design and trade mark law limits public policy rules to which no one can derogate, or on the contrary are they default rules? May the limits of these laws allowing repair and recycle, if and when they exist, be overridden by contract and/or TPMs? Sections B and C will attempt to answer this question. The final section seeks to determine whether as a matter of policy, those limits should be overridden. To do so, it uses several arguments and legal theories. The article will review European and American laws and only addresses the issue of whether contracts overriding limits allowing repair and recycle are valid under intellectual property rather than under contract law. Some answers to this latter aspect may be found in L. Guibault’s thesis
Suggested Citation: Suggested Citation