Marie Sherlock (Labour) | Oireachtas source

I move amendment No. 1:

1. In page 31, between lines 23 and 24, to insert the following: "Rights in relation to diagnosis, maintenance and repair of electronic equipment

26. (1) In relation to digital electronic equipment sold in the State, a manufacturer shall make available, for the purposes of diagnosis, maintenance or repair of the equipment—

(a) to independent repair providers, and

(b) to owners of the equipment,

in a timely manner and on fair and reasonable terms, relevant documents, parts and tools, including any updates to information or embedded software.

(2) Where a manufacturer has made an express warranty with respect to digital electronic equipment and the wholesale price of the equipment is €100 or more, the manufacturer shall provide such parts, tools, and documents as to enable the repair of the equipment during the warranty period at an equitable price, with due regard to—

(a) the actual cost to the manufacturer of preparing and distributing the parts, tools or documents, exclusive of any research and development costs incurred,

(b) the ability of owners and independent repair providers to afford the parts, tools or documents, and

(c) the means by which the parts, tools or documents are distributed.

(3) In relation to equipment with an electronic security lock or other security-related function, the manufacturer shall make available to the owner and to independent repair providers, on fair and reasonable terms and through secure data release systems where appropriate, any special documents, tools or parts needed to disable the lock or function, and to reset it, for the purposes of diagnosis, maintenance or repair of the equipment.

(4) Both an owner and an independent repair provider may maintain an action against a manufacturer who contravenes subsection(1), (2)or (3), and the court may order the manufacturer to take such action as may be necessary to observe the requirements of the subsection concerned, or to pay damages.

(5) (a) Nothing in this section requires a manufacturer to disclose a trade secret, save as and to the extent necessary to provide documents, parts and tools on fair and reasonable terms.

(b) Subject to paragraph (c), nothing in this section alters the terms of any agreement between a manufacturer and an authorised repair provider.

(c) A provision of an agreement referred to in paragraph (b), or any other agreement, is void insofar as it purports to waive, avoid, restrict or limit a manufacturer's obligations under this section.

(6) In this section—

"authorised repair provider", in relation to a manufacturer, means a person who is not a connected person and who has an agreement with the manufacturer—

(a) pursuant to a license to use a trade name, service mark or other proprietary identifier, to offer the services of diagnosis, maintenance or repair of digital electronic equipment under the name of the manufacturer, or

(b) otherwise to provide such services on behalf of the manufacturer, provided that a manufacturer who offers the services of diagnosis, maintenance or repair of digital electronic equipment manufactured by it or on its behalf, and who does not have an agreement with a connected person for the provision of such services, is an authorised repair provider with respect to that equipment;

"connected person" has the meaning assigned to it by section 10 of the Taxes Consolidation Act 1997;

"digital electronic equipment"—

(a) subject to paragraph (b), means any product that depends for its functioning, in whole or in part, on digital electronics embedded in or attached to the product,

(b) does not include—

(i) mechanically propelled vehicles designed and constructed to be suitable for use on roads, or

(ii) medical devices within the meaning of the Health (Pricing and Supply of Medical Goods) Act 2013;

"document" includes any manual, diagram, reporting output, service code description, schematic, or other guidance or other information used in effecting the services of diagnosis, maintenance, or repair of digital electronic equipment;

"embedded software" means any programmable instructions provided on firmware delivered with digital electronic equipment, or with a part for such equipment, for the purposes of operating the equipment, including all relevant patches and fixes made by the manufacturer of such equipment or part for this purpose;

"firmware" means a software program or set of instructions programmed on digital electronic equipment, or on a part for such equipment, to allow the equipment or part to communicate within itself or with other computer hardware;“independent repair provider” means a person who—

(a) in relation to a manufacturer and any authorised repair provider of the manufacturer, is not a connected person, and

(b) is engaged in the diagnosis, maintenance, or repair of digital electronic equipment,

provided that a manufacturer or an authorised provider of a manufacturer is, when engaged in the diagnosis, service, maintenance or repair of digital equipment that is not manufactured by or sold under the name of the manufacturer, an independent repair provider;

"manufacturer" means a person engaged in the business of selling, leasing, or otherwise supplying new digital electronic equipment, or parts of such equipment, that has been made by or on behalf of the manufacturer;

"owner" means a person who owns or leases digital electronic equipment;

"part" means any replacement part, whether new or used, made available by a manufacturer for purposes of maintenance or repair of digital electronic equipment manufactured by or on behalf of, sold or otherwise supplied by the manufacturer;

"tools" includes any software program, hardware implement or other apparatus used for diagnosis, maintenance or repair of digital electronic equipment, including software or other mechanisms that provision, program or pair a new part, calibrate functionality or perform any other function required to bring the equipment back to fully functional condition.

(7) A reference in this section to making a document or thing available on fair and reasonable terms, means making the document or thing available on terms, that are equivalent to the most favourable terms, under which a manufacturer makes the document or thing available to an authorised repair provider—

(a) regard being had to any discount, rebate, convenient means of delivery, means of enabling fully restored and updated functionality, rights of use, or other incentive or preference the manufacturer offers to an authorised repair provider, or any additional cost, burden or impediment the manufacturer imposes on an independent repair provider, and

(b) not conditioned on or imposing a substantial obligation or restriction that is not reasonably necessary for enabling the owner or independent repair provider to engage in the diagnosis, maintenance or repair of digital electronic equipment made by or on behalf of the manufacturer.".

I am conscious that this amendment was put down in the Dáil by my Labour Party colleagues. There was a different Minister of State responding at that time. We are hoping the new Minister of State will be more open to our proposal.

At the heart of this amendment is the need for a right to repair. We are trying to deal in this provision with planned obsolescence, which is part and parcel of the business model entailed in the sale of many of the devices and electronic goods we have in our lives nowadays. The amendment is an attempt to deal with that planned obsolescence and fight back against it. It is in keeping with the spirit of the circular economy and the need to reduce waste. While many of these products are a great addition to our lives, what happens to them when they become obsolete within a very short period, usually two to five years? They end up in our civic amenity and recycling centres. This is a practical amendment designed to ensure that where electronic goods are worth €100 or more, provisions are in place to require manufacturers to facilitate the repair of those goods.

We are conscious that there are all sorts of patent and commercial sensitivity concerns that arise. We have tried to provide for those concerns in the amendment by making available to both owners and independent repair providers, on fair and reasonable terms, provision for secure data release systems by way of tools and other mechanisms to facilitate repair. We understand companies have a job to do in manufacturing goods. We also passionately believe there should be an onus on those manufacturers to ensure their business model of planned obsolescence is challenged, particularly in the spirit of the circular economy, legislation on which passed through the Houses last summer. We need to see a right to repair inserted into the Bill. I hope the Minister of State will look favourably on the amendment.