The Right to Repair, the Right to Tinker, and the Right to Innovate

: Creating new products by incorporating new and original ideas derived from learning the internal mechanisms and structures of machines and other objects at hand through the process of repairing or tinkering with them is fundamental to the innovation, which is a staple of human existence. Recently, however, increasing product complexity, technical constraints


Introduction
The human species has been characterized since its origins by the act of creating new innovations based on ingenious improvements through insights obtained from studying objects, natural and man-made, that people (legitimately) possess by disassembling and/or experimenting on them. This aspect has been the driving force behind the progress of the human society.
Until recently, this aspect was such an obvious facet of everyday life that it hardly merited special attention. However, advances in computing and the Internet and their widespread use have dramatically reduced the cost of copying and distributing digital data, leading to illegal sharing of data online, resulting in prominent cases of harm to the interests of rights-holders. In response, the rights-holders designed technology-based protective measures in the form of copy control and access control, but this aspect quickly degenerated into a game of cat and mouse as technologies to work around such protection proliferated. A movement emerged to place legal restrictions on the very act of evading protection, and such "anti-circumvention of technological protection measures" can now be found in the intellectual property laws of many countries, including Japan. 1 These statutory restrictions, however, unwittingly impinged greatly on the freedom for anyone to tinker with things, which had historically been the underpinning of innovation. The impact is particularly dire in an era like this one wherein hardware and software are intimately related and the role of the software is relatively greater. For example, to tinker with or repair a smartphone, one needs to disassemble the smartphone, extract the firmware that controls it, research and modify it, and then return the modified In this paper, we shall discuss the origins of the Right to Tinker and Right to Repair and their significance in the context of innovation.

The Brief History of "the Right to Repair"
The pre-history of the Right to Repair In the period of domestic handicraft industry prior to the Industrial Revolution, it was a matter of course to repair one's own home-made agricultural instruments/tools with no awareness of any particular "right" to do so. With the advent of mass production made possible by the Industrial Revolution, more complex production processes, and durable consumer goods, a clear distinction emerged between the producer and the consumer, thus raising the potential problem of the ability to repair. In his autobiography, automotive pioneer Henry Ford said of his automobiles, arguably the best single example of durable consumer goods, that "We want individuals who buy one of our products never to have to buy another," and it was important that "You can take a 10-year-old car, and with parts that are available today, make it into a car of today with very little expense." This aspect suggests that the parts must be interchangeable (Ford & Crowther, 1922, p. 124). For Ford, repairability was a crucial element of product design (Hanley, Kelloway, & Vaheesan, 2020).
The first time repairability as a consumer right was contested in a The Right to Repair, the Right to Tinker, and the Right to Innovate court of law was the antitrust suit against IBM in 1956. 2 In a judgment handed down in a trial over whether its refusal to allow customers to repair machines they had leased contravened the law, IBM, which at the time held a dominant position in the market for mainframes, was mandated to offer parts and subassemblies to its customers at reasonable and nondiscriminatory prices.

"Planned obsolescence" as a counter concept
Ford's notion of durable products was not exactly a paragon of economic rationality. With respect to encouraging new purchases by making repair parts for old models unavailable, Ford admitted that, "We have been told that this is good business, that it is clever business" (Ford & Crowther, 1922). Commencing in the 1920s, Ford Company organized dealers and repair shops into a network and provided repair parts only to certified shops and, in an attempt to evade competition on repair prices with independent outlets, made repairs impossible without using special tools supplied only to certified shops (McIntyre, 2000). At GM, led by Alfred Sloan, annual model changes were designed deliberately to create psychological obsolescence to stimulate replacement purchases by the consumers.
In addition to Sloan's psychological obsolescence, other product development strategies designed to encourage replacement include functional obsolescence or adding new features to make the consumers feel that the previous models are old-fashioned and material obsolescence or intentionally shortening the product life (Yamamoto, 2012 Coase (1972), held that in the case of monopolies providing durable consumer goods, assuming the value of the consumer goods does not decline (due to repairs, for example), the company's own products will end up in competition with ones bought at a different point in time, making it impossible to maintain monopolistic pricing. Taking a hint from this notion, a series of studies emerged on the topic of planned obsolescence and material obsolescence in particular (Bulow, 1986;Iizuka, 2007;Kuppelwieser, Klaus, Manthiou, & Boujena, 2019;Swan, 1972;Waldman, 1993;Wieser, 2016). In concrete terms, material obsolescence functions in the following manner:  Making items difficult to repair (by raising the cost of repair, requiring special tools, etc.)  Failing to provide information (for instance, manuals are not provided)  Systematic obsolescence (making parts among models incompatible or making it impossible to fix newer models with parts from the older models)  Numbering (frequently changing the model numbers to make it psychologically less attractive to use old models)  Legal approaches (prohibiting access and modification to the internal structure of products by means of copyrights and patents) Material obsolescence employs these kinds of approaches as a marketing technique for encouraging the consumer to replace an old model with a new one. 3 Some also believe that as an industrial policy, planned obsolescence is a requisite for technological progress, as encouraging rapid innovation through early obsolescence is better for the society than having products that last too long and hold back innovation (Fishman, Gandal, & Shy, 1993).
Planned obsolescence, which encompasses material obsolescence, had a particularly large impact on the American IT industry of the 1980s and 1990s; the reason was the notion that in addition to the physical hardware, which is durable in nature, to recover investments in software, which in principle does not deteriorate, assertions of legal rights and planned obsolescence is indispensable. The 1980s also saw the beginning of a pro-patent and pro-copyright wave as an industrial policy in the U.S., which was being battered by the technological competition with Japan, reinforcing the idea of protecting technology by legal means. It was a distinguishing characteristic of this era that the American justice system limited the application of anti-monopoly statutes, such as not deeming technology consortia to be cartels (Gibson & Rogers, 1994 (Craver, 2001). Simultaneously with the letter, SDMI published samples of the digital watermarking technology it had adopted-a particular music file, the same file with embedded digital watermark, and another music file with an embedded digital watermark-and issued a "challenge" to analyze the first two music files and strip the third file of its digital watermark with no severe degradation of audio quality; they set a duration of three weeks and a prize of US$10,000.

The Right to Tinker
Samuelson (2016) brought together the following eight aspects of the freedom to tinker based on the Felten case.

Intellectual freedom to study existing artifacts in depth and
conceive what can be done with them.
2. Freedom to intellectual privacy and autonomy to investigate and experiment with artifacts one owns or has a legitimate interest in within the confines of one's own space.
3. Freedom to improve one's skills by testing, analyzing, and interoperating existing artifacts. 4. Freedom of individual self-expression by means of tinkering.
5. Freedom to learn from tinkering and convey the research results to others.
6. The right to fix broken things and the freedom to use artifacts for purposes other than originally envisioned to the extent that this aspect does not impinge on others' rights.
7. Freedom to innovate on the basis of the learnings from tinkering.
8. Freedom to optionally share innovations arising as a result of tinkering with others and build communities with such innovations at their core.
The abovementioned factors express the freedom to tinker as the right to do as one wishes with things one owns; this aspect is nearly identical to the textbook definition of modern ownership rights, i.e., the right of complete control over things and to use them, make profits from them, and dispose them.

The Return of "the Right to Repair"
The 2000s  Permissionless innovation is the notion that new technologies and experimental business models should as a general principle be permitted, unless it can be proven that they clearly cause serious damage. The precautionary principle, in contrast, is the idea of preventing new innovation until it can be proven that that innovators will cause no damage whatsoever to individuals and groups, specific actors, cultural norms, various existing laws, or tradition. According to Thierer (2016), the vitality of innovation and dynamism in a society will be governed by which of these two notions is dominant in a particular society.
The concept of permissionless innovation is suggestive in considering how society fundamentally assesses the Right to Tinker. In particular, given the strong emphasis on safety and security in Japan, we believe that it is necessary to actively protect the Right to Tinker as a policy to achieve a balance.

Conclusion
This paper has examined the history, specifics, and significance of the Right to Tinker and the Right to Repair, which although in existence for many years and have been serving as the precondition for innovation, were ignored simply because they were taken for granted. We thus highlighted how the Right to Repair, at one point in retreat, has enjoyed resurgence as the importance of the Right to Tinker has been reassessed.
While the existence of the Right to Tinker and the Right to Repair, which lie at the heart of innovation, have been threatened in recent years in the form of legal restrictions, advances in technology have placed more power in the hands of the ordinary users, thus giving the Right to Tinker, originally not extending beyond the use of one's devices, a broader influence in the world. Further, to strike this balance will be important in the future discussions related to these rights. We also hope to address these issues in detail as we continue our research.