"Right to repair" debate highlights critical issue of data rights

Published 20170326

“Right to repair’ has become a catchcry of equipment users (including farmers) in the USA of late as a number of state legislatures propose legislation that would in some way prevent manufacturers from restricting owners or independent repairers from carrying out repairs on equipment ranging from mobile phones to large farm tractors. In many respects this debate is a sub-set of a much broader debate about rights to access and use data generated by digitally-enabled equipment and technology.

The State of Nebraska legislature this week was scheduled to debate a bill that would have given farmers and independent repairers rights to access service manuals, diagnostic tools and spare parts for tractors and other equipment. The aim was to enable farmers to carry out their own repairs, or to use an independent repairer, rather than being required to go back to the manufacturer in the event of a mechanical or technical problem. However, apparently as a result of lobbying by Apple, among others, the legislation was dropped from the list of matters to be debated, and its future is now uncertain.  Despite the situation in Nebraska, it is reported that eight other US states and the US Congress all have draft legislation at various stages and that pressure is growing to implement reform on this issue.

Opposing any move to free up access to software, diagnostic tools and in some cases spare parts are major technology companies such as Apple, and also John Deere. In the case of John Deere, the company approach is that purchasers of John Deere machines purchase the machinery and licences to utilise related software for the life of the machinery, but do not “own” the software, despite the machinery being essentially inoperable without that software. John Deere claims to have enabled operator access to some elements of software and associated data, and provides training and diagnostic tools to ‘non-John Deere’ machinery repairers. The extent to which this is the case, and the cost and restrictions applied to this are difficult to determine.

There are actually two parts of the debate – 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.

The latter is a much broader issue, which has implications for owners of everything from the largest mining excavator to fit-bits and smart watches, and for personal data generated in sectors as diverse as health, banking and education. 

Generally, purchasers of machinery and technology sign a ‘user licence‘ of some sort that within its very numerous provisions and arcane legal language may waive rights to control the use of any subsequent data that the machinery or technology generates, may mean that any warranties are void in the event that the user or an independent repairer attempts to rectify a problem or modify the equipment to enhance performance, and may also confer on the manufacturer the right to use data in a range of different ways, including by selling it to third parties.

While the focus from a farm perspective has been on usage rights to data generated by farm machinery, the issue is about have much wider implications for the entire sector, due to a number of developments. 

One is the implementation of digital and robotic technologies in livestock processing works, which will enable meat processors to collect very detailed objective data about the characteristics of the livestock they process. Up until the present time, manual carcase processing has meant that it has been very difficult to obtain objective data about meat yield or cut sizes, but scanning and robotic technology that has already been installed in several Australian meat processing works has made the collection of detailed carcase data much simpler. Who has the right to obtain access to that data, and the purposes for which it can be used is currently very unclear. 

The second is the development of computer software applications on portable computing devices and mobile phones that can be used to record highly detailed farm production information, and to save that data on a cloud storage platform. This information ranges from chemical and pesticide use data recorded for compliance purposes, to livestock numbers and cropping and fertiliser application records for each paddock. In many respects, the uncertainty about rights to access or use this data is similar to the uncertainty associated with rights to the use of yield maps that are generated by most modern grain harvesters, and even the GPS data generated by spray coups or other farm machinery.

As yet, it appears that Australian law does not provide clear guidance, and industry groups in Australia are yet to reach a unified position on the best way to manage these issues. There is no doubt that the agriculture sector needs access to the new technologies that are producing a flood of data, but there is also an increasing risk that data will be used as a means of reducing competition or gaining an unfair market advantage, or in ways that the farm business that generated the data may not agree with.

These are issues that will be canvassed at a forthcoming conference being convened by the Australian Farm Institute, and all those involved in Australian agriculture need to be involved in developing workable policy, and removing some of the current uncertainty.

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