You walk into McDonald’s, eager for a soft-serve cone or a McFlurry®, only to be met with those dreaded words: “Sorry, the ice cream machine’s down”.
It’s a relatable moment we have all experienced. Yet, what seems like a minor inconvenience highlights a larger, more complex issue involving intellectual property (IP), monopolistic control, and the emerging right-to-repair movement. As the United States (US) strengthens repair rights with new policy measures, Australia may find itself motivated to revisit its own stance. The evolving US framework offers a compelling model for reconciling consumer rights with IP protections, sparking important questions about how Australia might approach similar challenges.
The soft-serve saga: an industry locked out
At the centre of this controversy is the Taylor C602 ice cream machine, used by McDonald’s outlets globally to serve soft-serve products. These machines have a reputation for frequent breakdowns, and a minor malfunction can result in a “lockout”, rendering the machine inoperable until a certified Taylor technician intervenes. For McDonald’s franchisees, this leads to frustrating downtime and costly repairs, all controlled by Taylor’s proprietary service network.
In response to these restrictions, Kytch, a small startup, emerged with an innovative solution. Kytch developed a device that provides diagnostic information to franchisees, enabling them to troubleshoot machine errors and prevent lockouts without Taylor’s intervention. This device promised significant savings in both time and money. However, Taylor commenced proceedings against Kytch in the US, alleging that Kytch’s device infringed copyright, and claiming that it accessed Taylor’s proprietary software without authorisation and could compromise machine safety.
The core of the dispute centres on the application of copyright law to embedded software. Under current US laws, software is treated as IP, granting the software creator exclusive rights to control access and modification. This creates a monopoly over repairs, effectively preventing consumers or businesses from repairing devices on their own and reinforcing control by IP owners over repair services.
The DMCA exemption and right-to-repair progress in the US
In 2021, the US took a significant step forward in addressing repair restrictions, especially in relation to copyright and digital locks.[1] In a landmark decision, the US Copyright Office granted an exemption to the Digital Millennium Copyright Act (DMCA) to allow the bypassing of digital locks for the purpose of repair.[2] This exemption, which recently came into effect on 28 October 2024, specifically allows technicians to unlock and repair devices embedded with software without infringing copyright. This shift is particularly significant for industries where software-controlled equipment, like the Taylor ice cream machines, has become the norm.
The Biden administration’s support of the right-to-repair movement, including this DMCA exemption, is part of a broader effort to challenge repair monopolies and empower consumers and businesses to take control of the repair process. This change marks a critical shift in US policy, addressing the growing tension between IP protections and consumer autonomy.
Australia’s approach to right-to-repair and copyright implications
Australia faces similar challenges but with a more limited framework. The Copyright Act 1968 (Cth) (Copyright Act) classifies software as a “literary work”, [3] giving companies like Taylor certain exclusive rights over its software, including the right to reproduce the software in material form. The Copyright Act also gives copyright owners certain rights to prevent circumvention of technological protection measures used to prevent access to software (such as digital locks). These protections under the Copyright Act allow manufacturers to control access to and use of diagnostic tools and repair services, creating a monopoly over repairs and limiting consumer freedom to fix their own products.
The Australian Productivity Commission’s 2021 Right to Repair Inquiry Report acknowledged these challenges, noting that Australians often struggle to access necessary parts, tools, and diagnostics for repairs across various sectors. [4] However, unlike the US, Australia has not yet taken steps to create an explicit exemption for repair under copyright law.
Currently, Australia’s copyright laws offer limited exceptions to infringement, such as specific “fair dealing” defences and limited rights for licensees to reproduce computer programs for the purpose of, for example, creating back-ups or for security testing, but none of these apply generally to repairs. This means that, under existing laws, Australians are still restricted from accessing and reproducing source code for the purpose of repair, putting them at a disadvantage compared to countries like the US where repair rights are becoming more robust.
The legal questions surrounding Kytch’s device underscore the tension between copyright law and repair rights. If a similar scenario played out in Australia, franchisees would likely face legal challenges for using Kytch’s technology to bypass Taylor’s software protections. As the law currently stands in Australia, using such a device without authorisation could lead to claims of copyright infringement and contravention of the anti-circumvention of technological protection measures in the Copyright Act.
Looking forward: Australia’s role in the global right-to-repair movement
The Kytch example sheds light on a deeper issue driving the movement toward repair rights. In the past, consumers with basic mechanical and electronics knowledge could repair their own products. Today, embedded software has limited this autonomy, making repairs dependent on manufacturers and restrictive licences that control access to essential tools and knowledge.
For Australia, embracing a more expansive right-to-repair framework by revising the Copyright Act and the Competition and Consumer Act 2010 (Cth) could empower consumers and businesses to repair their own devices, reduce reliance on authorised service providers, promote competition, and lower repair costs. It could also extend product lifespans, helping to reduce e-waste. However, any reforms would need to carefully balance consumer freedom with the protection of intellectual property.
In many ways, the push for repair rights is more than a debate over convenience—it signals a societal shift toward sustainable, consumer-focused practices. As countries like the US continue to lead with initiatives such as the DMCA exemption for repair, Australia has an opportunity to follow suit, potentially reshaping its consumer relationship in the process. In the context of patent law, the High Court of Australia has already acknowledged the doctrine of patent exhaustion and the right of repair (see our previous article).
Establishing robust repair rights in respect of other IP rights, such as copyrights, could set vital precedents, allowing consumers to maintain greater control over the products they own and influencing the future of IP law in the digital age.
[1] The digital lock functions as a Technical Protection Measure (TPM). TPMs are specific types of Digital Rights Management (DRM) technologies designed to prevent unauthorised access or modifications to software and devices.
[2] Federal Communications Commission. (2024). Exemption to the DMCA for the Repair of Consumer Devices (2024-24563). Federal Register. Retrieved from https://public-inspection.federalregister.gov/2024-24563.pdf.
[3] Copyright Act 1968 (Cth), section 10.
[4] Productivity Commission. (2021). Right to repair inquiry report. Australian Government Productivity Commission. Retrieved from https://www.pc.gov.au/inquiries/completed/repair.