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Can the EU Data Act help solve US right to repair issues?

April 24, 2024
European News HTM Parts And Service
By Robert J. Kerwin

While efforts in Washington D.C., and indeed nationwide, have sparked momentum toward widespread acceptance of the rights of device owners to choose who would repair the devices they own, recent approval by the European Parliament and the Council of the EU of the European Data Act may be a great leap forward for "right to repair" in its own right.

Is it time for an industry understanding on right to repair?
Within two years, European manufacturers may well be required to share data with device users and/or the third parties they employ. While the European Court of Justice and EU member states will likely need to establish guidance and sort out some of the trade secret and privacy protections to be claimed, the European Data Act is seen by knowledgeable observers as, on the whole, compelling greater cooperation in allowing access to data by device users — including for repair purposes.

While the treatment of intellectual property is different in Europe when a device is sold, it will be interesting to see if multinational device manufacturers will be able to assert broad trade secret arguments on repair information in the U.S., when they may be compelled by law to turnover repair information as part of device data to users in the EU.

In light of these developments, it may be time for the industry to undertake adoption of general principles pertaining to cooperation on data access for repairs. Perhaps, as happened with the automotive industry, a memorandum of understanding may be reached. Some may find such an understanding preferable over what might otherwise be imposed by court interpretations of the European Data Act.

Overview of the European Data Act
In December 2023, the EU published the Data Act, Regulation (EU) 2023/2854), in the Official Journal of the EU. The regulation was adopted after much debate and consideration and will be effective as of September 12, 2025. In short, the new regulation will give data users more rights to their own data.

While the details of access have been debated, Article 4 provides users and data holders the right to access service data:

    Where data cannot be directly accessed by the user from the connected product or related service, data holders shall make readily available data, as well as the relevant metadata necessary to interpret and use those data, accessible to the user without undue delay, of the same quality as is available to the data holder, easily, securely, free of charge, in a comprehensive structured, commonly used and machine readable format and, where relevant and technically feasible, continuously and in real time. This shall be done on the basis of a simple request through electronic means where technically feasible.
While users and data holders could contractually restrict access if the process undermines security requirements, it should be noted that the overall purpose of the regulation is to provide data access.

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