I 
116TH CONGRESS 
2D SESSION 
H. R. 7956 
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. 
IN THE HOUSE OF REPRESENTATIVES 
AUGUST 7, 2020 
Ms. CLARKE of New York (for herself and Mr. MCNERNEY) introduced the 
following bill; which was referred to the Committee on the Judiciary, and 
in addition to the Committee on Energy and Commerce, for a period to 
be subsequently determined by the Speaker, in each case for consider-
ation of such provisions as fall within the jurisdiction of the committee 
concerned 
A BILL 
To amend title 17, United States Code, to address cir-
cumvention of copyright protection systems with respect 
to the maintenance or repair of critical medical infra-
structure, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Critical Medical Infra-
structure Right-to-Repair Act of 2020’’. 
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SEC. 2. DEFINITIONS. 
In this Act— 
(1) the term ‘‘commerce’’ has the meaning 
given the term in section 4 of the Federal Trade 
Commission Act (15 U.S.C. 44); 
(2) the terms ‘‘covered emergency’’, ‘‘covered 
service provider’’, ‘‘critical medical infrastructure’’, 
‘‘repair’’, and ‘‘service material’’ have the meanings 
given those terms in section 123(a) of title 17, 
United States Code, as added by section 3(a)(1) of 
this Act; 
(3) the term ‘‘covered healthcare provider’’ has 
the meaning given the term in section 1201(l)(1) of 
title 17, United States Code, as added by section 
3(a)(2) of this Act; 
(4) the term ‘‘critical medical infrastructure 
contract’’ means a contract relating to the purchase, 
licensing, repair, or maintenance (including periodic 
maintenance) of critical medical infrastructure; 
(5) the term ‘‘service provider’’ means any per-
son engaged in the diagnosis of problems with re-
spect to, or the service, maintenance, or repair of, 
critical medical infrastructure; and 
(6) the term ‘‘trade secret’’ has the meaning 
given the term in section 1839 of title 18, United 
States Code. 
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SEC. 3. COPYRIGHTS. 
(a) IN GENERAL.—Title 17, United States Code, is 
amended— 
(1) in chapter 1, by adding at the end the fol-
lowing: 
‘‘§ 123. Limitation on exclusive rights: incidental cop-
ies of service materials made during 
maintenance or repair of critical medical 
infrastructure 
‘‘(a) DEFINITIONS.—In this section— 
‘‘(1) the term ‘covered emergency’ means the 
public health emergency declared by the Secretary of 
Health and Human Services under section 319 of 
the Public Health Service Act (42 U.S.C. 247d) on 
January 31, 2020, with respect to the Coronavirus 
Disease 2019 (COVID–19), including any renewal of 
that declaration; 
‘‘(2) 
the 
term 
‘covered 
service 
provider’ 
means— 
‘‘(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’ 
means a device, computer program, or other product 
or equipment used to provide medical services; 
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‘‘(4) the term ‘repair’, when used with respect 
to critical medical infrastructure, means to restore 
that critical medical infrastructure to a state that is 
in accordance with the original specifications of that 
critical 
medical 
infrastructure, 
including 
any 
changes to those original specifications that are 
issued by the manufacturer of the critical medical 
infrastructure; and 
‘‘(5) the term ‘service material’, when used with 
respect to critical medical infrastructure— 
‘‘(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 author-
ized by the manufacturer; and 
‘‘(B) includes— 
‘‘(i) schematics, wiring diagrams, me-
chanical layouts, and other pertinent data 
with respect to that critical medical infra-
structure; 
‘‘(ii) computer programs used in diag-
nosing problems with respect to that crit-
ical medical infrastructure or in cali-
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brating, repairing, or maintaining that 
critical medical infrastructure; 
‘‘(iii) service keys that are required to 
access diagnostic information, and other-
wise authorize repairs, with respect to that 
critical medical infrastructure; 
‘‘(iv) access to error logs that are re-
quired to diagnose required repairs with 
respect to that critical medical infrastruc-
ture; 
‘‘(v) preventative and corrective main-
tenance, inspection, and repair procedures 
with respect to that critical medical infra-
structure; 
‘‘(vi) information regarding safety 
alerts, recalls, service bulletins, specifica-
tion updates, and the need for adjustments 
to maintain efficiency, safety, and conven-
ience 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 infrastruc-
ture, including— 
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‘‘(I) with respect to any replace-
ment part or equipment relating to 
that piece of critical medical infra-
structure; and 
‘‘(II) training materials with re-
spect to that critical medical infra-
structure. 
‘‘(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 re-
spect to the covered service provider, if— 
‘‘(1) making that separate copy is incidental to 
the repair or maintenance of critical medical infra-
structure; 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 sec-
tion 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: 
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‘‘(l) REPAIR OF CRITICAL MEDICAL INFRASTRUC-
TURE RELATING TO COVID–19.— 
‘‘(1) DEFINITIONS.—For purposes of this sub-
section— 
‘‘(A) the terms ‘covered emergency’, ‘crit-
ical medical infrastructure’, and ‘repair’ have 
the meanings given those terms in section 
123(a); and 
‘‘(B) the term ‘covered healthcare provider’ 
means— 
‘‘(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.—Notwith-
standing 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 circumven-
tion is to repair or maintain critical medical in-
frastructure with respect to that covered 
healthcare provider; and 
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‘‘(B) the repair or maintenance described 
in subparagraph (A) is part of preparation for, 
or a response to, the covered emergency. 
‘‘(3) 
ENABLING
CIRCUMVENTION.—Notwith-
standing the provisions of subsections (a)(2) and 
(b), it is not a violation of either such provision for 
a covered healthcare provider to manufacture, im-
port, 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 protec-
tion afforded by a technological measure that effec-
tively controls access to a work protected under this 
title, if that action by that covered healthcare pro-
vider 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 mainte-
nance of critical medical infrastructure, except 
as explicitly provided in this subsection; or 
‘‘(B) prevent the Librarian of Congress 
from determining, under the applicable sub-
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paragraphs of subsection (a)(1), that subpara-
graph (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 pro-
tected under this title.’’. 
(b) TECHNICAL AND CONFORMING AMENDMENT.— 
The table of sections for chapter 1 of title 17, United 
States Code, is amended by adding at the end the fol-
lowing: 
‘‘123. Limitation on exclusive rights: incidental copies of service materials made 
during maintenance or repair of critical medical infrastruc-
ture.’’. 
SEC. 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 fol-
lowing: 
‘‘(h) DESIGN PATENTS.— 
‘‘(1) DEFINITIONS.—In this subsection— 
‘‘(A) the terms ‘covered emergency’, ‘crit-
ical medical infrastructure’, and ‘repair’ have 
the meanings given the terms in section 123(a) 
of title 17; and 
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‘‘(B) the term ‘covered healthcare provider’ 
has the meaning given the term in section 
1201(l) of title 17. 
‘‘(2) NON-INFRINGEMENT.—It shall not be an 
act of infringement with respect to a patent for de-
sign 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 re-
pair or maintenance is part of a response to the cov-
ered emergency. 
‘‘(3) RULE
OF
CONSTRUCTION.—Nothing in 
this subsection may be construed to exempt a cov-
ered healthcare provider from compliance with any 
other applicable law or regulation relating to a part 
or critical medical infrastructure described in para-
graph (2).’’. 
SEC. 5. CONTRACTS. 
Notwithstanding any other provision of law or regula-
tion, a provision of a critical medical infrastructure con-
tract is null and void if that provision of the critical med-
ical infrastructure contract prohibits or restricts the abil-
ity of a covered healthcare provider that is a party to the 
contract to, in response to the covered emergency, repair 
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or maintain critical medical infrastructure with respect to 
the covered healthcare provider. 
SEC. 6. MANUFACTURER REQUIREMENTS. 
(a) DEFINITION.— 
(1) IN GENERAL.—Subject to paragraph (2), in 
this section, the term ‘‘fair and reasonable terms’’ 
means, with respect to a manufacturer of critical 
medical infrastructure, that the manufacturer pro-
vides access to service materials, or offers for sale a 
tool, with respect to the critical medical infrastruc-
ture at costs and terms that are equivalent to the 
most favorable costs and terms offered by that man-
ufacturer to repair facilities that are authorized by 
that manufacturer— 
(A) using the net costs that would be in-
curred 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 manu-
facturer. 
(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’’ with respect to that provision 
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of access means at no charge, except that if the ap-
plicable service provider requests documentation in 
physical printed form, the term ‘‘fair and reasonable 
terms’’ includes a charge imposed by the manufac-
turer for the reasonable actual costs of preparing 
and sending the documentation. 
(b) DUTY TO DISCLOSE INFORMATION.—The manu-
facturer of a piece of critical medical infrastructure sold, 
leased, or otherwise introduced into commerce in the 
United States shall provide owners, lessees, or service pro-
viders with respect to that piece of infrastructure with ac-
cess to, on fair and reasonable terms, service materials 
that are required to— 
(1) diagnose problems with respect to that crit-
ical medical infrastructure; and 
(2) service, maintain, or repair that critical 
medical infrastructure. 
(c) DUTY TO MAKE TOOLS AVAILABLE.—The manu-
facturer 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 pro-
viders with respect to the critical medical infrastruc-
ture, on fair and reasonable terms, any tool (includ-
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ing 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 med-
ical 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 infrastruc-
ture, and to all service providers with respect to the crit-
ical medical infrastructure, on fair and reasonable terms, 
all equipment for diagnosis of problems with respect to, 
service, maintenance, or repair of the critical medical in-
frastructure. 
(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 of title 18, United States Code. 
(2) PROVISION OF INFORMATION TO DEALERS 
OR SERVICE PROVIDERS.—A manufacturer of critical 
medical infrastructure may not withhold information 
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under paragraph (1) on the ground that disclosing 
the information would divulge methods or processes 
entitled to protection as trade secrets under chapter 
90 of title 18, United States Code, if that informa-
tion is provided directly or indirectly to authorized 
dealers or service providers. 
(f) ENFORCEMENT BY THE FEDERAL TRADE COM-
MISSION.— 
(1) UNFAIR
OR
DECEPTIVE
ACTS
OR
PRAC-
TICES.—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’’) shall enforce this section and 
any regulation promulgated under this section in the 
same manner, by the same means, and with the 
same jurisdiction, powers, and duties as though all 
applicable terms and provisions of the Federal Trade 
Commission Act (15 U.S.C. 41 et seq.) were incor-
porated into and made a part of this section. Any 
person who violates this section or a regulation pro-
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mulgated under this section shall be subject to the 
penalties and entitled to the privileges and immuni-
ties provided in the Federal Trade Commission Act. 
Enforcement by the Commission shall be the exclu-
sive means of enforcing compliance with this section 
and any regulation promulgated under this section. 
(3) RULEMAKING
AUTHORITY.—The Commis-
sion shall have authority under section 553 of title 
5, United States Code, to promulgate any regula-
tions necessary to implement this section. 
SEC. 7. STUDY AND REPORT. 
(a) STUDY.—The Chairman of the Federal Trade 
Commission, in consultation with the Register of Copy-
rights and the Under Secretary of Commerce for Intellec-
tual 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 amend-
ments 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— 
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(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). 
Æ 
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