Source Code: A Trade-Related Barrier to the Right to Repair

In recent years, conflicts between software access restrictions and Right to Repair (R2R) legislation have become a growing concern for policymakers and repair advocates around the world. Consumers have come to increasingly depend on electronic devices that integrate sophisticated hardware and embedded software. When those devices break or require maintenance, owners often lack the software or software-based tools required to fix them. In some cases where replacement parts and information may be readily available, device software and software-integrated tools present a barrier to independent repair. In response, legislators in both the United States and the European Union have been enacting R2R laws designed to empower consumers and professional repairers with access to these resources to foster a circular economy and reduce electronics waste. At the same time, trade negotiators on both sides of the Atlantic have been concluding free trade agreements (FTAs) that include digital trade provisions that protect software source code and algorithms from inspection and disclosure by governments or access by third parties. These provisions, such as those found in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the US-Mexico-Canada Agreement (USMCA) and subsequent EU-led agreements, bar governments from requiring device manufacturers to transfer or disclose source code or algorithms as a condition for market access. Though to date these parallel policy developments have (for the most part) occurred in isolation from one another, this report examines their potential for interaction and future conflict as contemporary FTAs and R2R mandates with software disclosure obligations come into effect. These seemingly distinct legal and policy developments may come into conflict where, for example, R2R mandates explicitly or implicitly require manufacturers to transfer or provide access to source code or algorithms for the benefit of third-party repairers or consumers. Drawing from statutory texts, recent trade agreements, policy briefs, and media reports, the study assesses the importance of access to software tools for repair, analyses domestic R2R legislation in the United States and Europe, surveys source-code provisions in major agreements, evaluates potential conflicts, and offers recommendations for policy makers.

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