Critical Medical Infrastructure Right-to-Repair Act of 2020

To amend title 17, United States Code, to address circumvention of copyright protection systems with respect to the maintenance or repair of critical medical infrastructure, and for other purposes. 1. Short title This Act may be cited as the Critical Medical Infrastructure Right-to-Repair Act of 2020 2. Definitions In this Act— (1) the term commerce 15 U.S.C. 44 (2) the terms covered emergency covered service provider critical medical infrastructure repair service material (3) the term covered healthcare provider (4) the term critical medical infrastructure contract (5) the term service provider (6) the term trade secret 3. Copyrights (a) In general Title 17, United States Code, is amended— (1) in chapter 1, by adding at the end the following: 123. Limitation on exclusive rights: incidental copies of service materials made during maintenance or repair of critical medical infrastructure (a) Definitions In this section— (1) the term covered emergency 42 U.S.C. 247d (2) the term covered service provider (A) the owner or licensee of a copy of service materials; or (B) the agent of a person described in subparagraph (A); (3) the term critical medical infrastructure (4) the term repair (5) the term service material (A) means any information or material that the manufacturer of that infrastructure provides directly, indirectly, or wirelessly to— (i) technicians of the manufacturer; or (ii) repair facilities that are authorized by the manufacturer; and (B) includes— (i) manuals, schematics, wiring diagrams, mechanical layouts, and other pertinent data with respect to that critical medical infrastructure; (ii) computer programs used in diagnosing problems with respect to that critical medical infrastructure or in calibrating, repairing, or maintaining that critical medical infrastructure; (iii) service keys that are required to access diagnostic information, and otherwise authorize repairs, with respect to that critical medical infrastructure; (iv) error logs that are required to diagnose required repairs with respect to that critical medical infrastructure; (v) preventative and corrective maintenance, inspection, and repair procedures with respect to that critical medical infrastructure; (vi) information regarding safety alerts, recalls, service bulletins, specification updates, and the need for adjustments to maintain efficiency, safety, and convenience with respect to that critical medical infrastructure; and (vii) any other information provided to diagnose problems with respect to, or to service, maintain, repair, activate, certify, or install, that critical medical infrastructure, including— (I) with respect to any replacement part or equipment relating to that piece of critical medical infrastructure; and (II) training materials with respect to that critical medical infrastructure. (b) Limitation Notwithstanding the provisions of section 106, it is not an infringement of copyright for a covered service provider to make, or to authorize the making of, a separate copy of service materials with respect to the covered service provider, if— (1) making that separate copy is incidental to the repair or maintenance of critical medical infrastructure; and (2) the repair or maintenance described in paragraph (1) is part of a response to the covered emergency. (c) Rule of construction Nothing in this section may be construed to imply that the actions explicitly authorized under this section may not also be permitted under another provision of this title. ; and (2) in section 1201, by adding at the end the following: (l) Repair of critical medical infrastructure relating to COVID–19 (1) Definitions For purposes of this subsection— (A) the terms covered emergency critical medical infrastructure repair (B) the term covered healthcare provider (i) a healthcare provider who is the owner, lessee, or licensee of critical medical infrastructure; or (ii) the agent of a person described in clause (i). (2) Permissible circumvention Notwithstanding the provisions of subsection (a)(1)(A), it is not a violation of that subsection for a covered healthcare provider to circumvent a technological measure that effectively controls access to a work protected under this title, if— (A) the purpose of the act of circumvention is to repair or maintain critical medical infrastructure with respect to that covered health­care provider; and (B) the repair or maintenance described in subparagraph (A) is part of preparation for, or a response to, the covered emergency. (3) Enabling circumvention Notwithstanding the provisions of subsections (a)(2) and (b), it is not a violation of either such provision for a covered healthcare provider to manufacture, import, offer to the public, provide, or otherwise traffic in technological means to circumvent a technological measure that effectively controls access to a work protected under this title, or to circumvent protection afforded by a technological measure that effectively controls access to a work protected under this title, if that action by that covered healthcare provider enables a repair or maintenance permitted under paragraph (2). (4) Rules of construction Nothing in this subsection may be construed to— (A) exempt a covered healthcare provider from compliance with any other applicable law or regulation relating to the repair or maintenance of critical medical infrastructure, except as explicitly provided in this subsection; or (B) prevent the Librarian of Congress from determining, under the applicable subparagraphs of subsection (a)(1), that subparagraph (A) of such subsection (a)(1) shall not apply to a covered healthcare provider relating to the circumvention of a technological measure that effectively controls access to a work protected under this title. . (b) Technical and conforming amendment The table of sections for chapter 1 123. Limitation on exclusive rights: incidental copies of service materials made during maintenance or repair of critical medical infrastructure. . 4. Patents Section 271 of title 35, United States Code, is amended— (1) by redesignating subsections (h) and (i) as subsections (i) and (j), respectively; and (2) by inserting after subsection (g) the following: (h) Design patents (1) Definitions In this subsection— (A) the terms covered emergency critical medical infrastructure repair (B) the term covered healthcare provider (2) Non-infringement It shall not be an act of infringement with respect to a patent for design obtained under section 171 for a covered healthcare provider to fabricate a part on a non-commercial basis, and as needed, for the repair or maintenance of critical medical infrastructure with respect to that covered healthcare provider, if the repair or maintenance is part of a response to the covered emergency. (3) Rule of construction Nothing in this subsection may be construed to exempt a covered healthcare provider from compliance with any other applicable law or regulation relating to a part or critical medical infrastructure described in paragraph (2). . 5. Contracts Notwithstanding any other provision of law or regulation, a provision of a critical medical infrastructure contract is null and void if that provision of the critical medical infrastructure contract prohibits or restricts the ability of a covered healthcare provider that is a party to the contract to, in response to the covered emergency, repair or maintain critical medical infrastructure with respect to the covered healthcare provider. 6. Manufacturer requirements (a) Definition (1) In general Subject to paragraph (2), in this section, the term fair and reasonable terms (A) using the net costs that would be incurred by that repair facility in obtaining an equivalent part, tool, or documentation; and (B) taking into consideration any discount, rebate, or other incentive offered by the manufacturer. (2) Documentation For the purposes of paragraph (1), if a manufacturer described in that paragraph provides access to service materials that are in the form of documentation, the term fair and reasonable terms fair and reasonable terms (b) Duty To disclose information The manufacturer of a piece of critical medical infrastructure sold, leased, or otherwise introduced into commerce in the United States shall provide owners, lessees, or service providers with respect to that piece of infrastructure with access to, on fair and reasonable terms, service materials that are required to— (1) diagnose problems with respect to that critical medical infrastructure; and (2) service, maintain, or repair that critical medical infrastructure. (c) Duty To make tools available The manufacturer of critical medical infrastructure sold, leased, or otherwise introduced into commerce in the United States shall— (1) offer for sale to the owner or lessee of the critical medical infrastructure, and to all service providers with respect to the critical medical infrastructure, on fair and reasonable terms, any tool (including software) for the diagnosis, service, maintenance, or repair of the critical medical infrastructure; and (2) provide all information that enables after-market tool companies to manufacture tools with the same functional characteristics as those tools made available by the manufacturers to authorized dealers. (d) Equipment The manufacturer of critical medical infrastructure sold, leased, or otherwise introduced into commerce in the United States shall offer for sale to the owner or lessee of the critical medical infrastructure, and to all service providers with respect to the critical medical infrastructure, on fair and reasonable terms, all equipment for diagnosis of problems with respect to, service, maintenance, or repair of the critical medical infrastructure. (e) Protection of trade secrets (1) In general Subject to paragraph (2), a manufacturer of critical medical infrastructure may not be required to publicly disclose information that, if made public, would divulge methods or processes entitled to protection as trade secrets under chapter 90 (2) Provision of information to dealers or service providers A manufacturer of critical medical infrastructure may not withhold information under paragraph (1) on the ground that disclosing the information would divulge methods or processes entitled to protection as trade secrets under chapter 90 (f) Enforcement by the Federal Trade Commission (1) Unfair or deceptive acts or practices A violation of this section, or a regulation promulgated under this section, shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act ( 15 U.S.C. 57a(a)(1)(B) (2) Powers of Commission The Federal Trade Commission (referred to in this subsection as the Commission 15 U.S.C. 41 (3) Rulemaking authority The Commission shall have authority under section 553 of title 5, United States Code, to promulgate any regulations necessary to implement this section. 7. Study and report (a) Study The Chairman of the Federal Trade Commission, in consultation with the Register of Copyrights and the Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, shall conduct a study regarding the impact and effectiveness of this Act, and the amendments made by this Act, with respect to innovation and anticompetitive practices in the market for critical medical infrastructure, including enforcement with respect to those practices. (b) Report to Congress Not later than 1 year after the date of enactment of this Act, the Chairman of the Federal Trade Commission shall— (1) submit to Congress a report that contains the results of the study conducted under subsection (a); and (2) make publicly available on the website of the Federal Trade Commission the report submitted under paragraph (1).

Summary: Critical Medical Infrastructure Right-to-Repair Act of 2020 This bill removes certain intellectual property-related restrictions on repairing or maintaining critical medical infrastructure (i.e., a device or product used to provide medical services). During the declared COVID-19 (i.e., coronavirus disease 2019) emergency, it shall not be copyright infringement for an owner or licensee of service materials (such as manuals or computer diagnostic software) to copy such materials if (1) the copying is incidental to the repair or maintenance of critical medical infrastructure, and (2) such repair or maintenance is in response to the emergency. Similarly, during the emergency, the prohibition against circumventing technology to control access to a work (or trafficking in circumvention tools) shall not apply to an owner or licensee of critical medical infrastructure if the circumvention is done to repair or maintain critical medical infrastructure in response to the emergency. During the emergency, it shall also not be design patent infringement if the owner or licensee of critical medical infrastructure fabricates a patented part on a noncommercial basis in order to repair or maintain the infrastructure in response to the emergency. The bill also nullifies any contract provision that restricts the ability of the owner or licensee of critical medical infrastructure to repair or maintain such infrastructure in response to the emergency. The manufacturer of critical medical infrastructure shall (1) offer for sale on reasonable terms any tool or information for servicing or repairing such infrastructure, and (2) provide information for making such tools to aftermarket tool manufacturers. The Federal Trade Commission shall have the authority to enforce these requirements.