Critical Medical Infrastructure Right-to-Repair Act of 2020

II 116TH CONGRESS 2D SESSION S. 4473 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 SENATE OF THE UNITED STATES AUGUST 6, 2020 Mr. WYDEN introduced the following bill; which was read twice and referred to the Committee on the Judiciary 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- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Critical Medical Infra- 4 structure Right-to-Repair Act of 2020’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 2 •S 4473 IS (1) the term ‘‘commerce’’ has the meaning 1 given the term in section 4 of the Federal Trade 2 Commission Act (15 U.S.C. 44); 3 (2) the terms ‘‘covered emergency’’, ‘‘covered 4 service provider’’, ‘‘critical medical infrastructure’’, 5 ‘‘repair’’, and ‘‘service material’’ have the meanings 6 given those terms in section 123(a) of title 17, 7 United States Code, as added by section 3(a)(1) of 8 this Act; 9 (3) the term ‘‘covered healthcare provider’’ has 10 the meaning given the term in section 1201(l)(1) of 11 title 17, United States Code, as added by section 12 3(a)(2) of this Act; 13 (4) the term ‘‘critical medical infrastructure 14 contract’’ means a contract relating to the purchase, 15 leasing, licensing, repair, or maintenance (including 16 periodic maintenance) of critical medical infrastruc- 17 ture; 18 (5) the term ‘‘service provider’’ means any per- 19 son engaged in the diagnosis of problems with re- 20 spect to, or the service, maintenance, or repair of, 21 critical medical infrastructure; and 22 (6) the term ‘‘trade secret’’ has the meaning 23 given the term in section 1839 of title 18, United 24 States Code. 25 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 3 •S 4473 IS SEC. 3. COPYRIGHTS. 1 (a) IN GENERAL.—Title 17, United States Code, is 2 amended— 3 (1) in chapter 1, by adding at the end the fol- 4 lowing: 5 ‘‘§ 123. Limitation on exclusive rights: incidental cop- 6 ies of service materials made during 7 maintenance or repair of critical medical 8 infrastructure 9 ‘‘(a) DEFINITIONS.—In this section— 10 ‘‘(1) the term ‘covered emergency’ means the 11 public health emergency declared by the Secretary of 12 Health and Human Services under section 319 of 13 the Public Health Service Act (42 U.S.C. 247d) on 14 January 31, 2020, with respect to the Coronavirus 15 Disease 2019 (COVID–19), including any renewal of 16 that declaration; 17 ‘‘(2) the term ‘covered service provider’ 18 means— 19 ‘‘(A) the owner or licensee of a copy of 20 service materials; or 21 ‘‘(B) the agent of a person described in 22 subparagraph (A); 23 ‘‘(3) the term ‘critical medical infrastructure’ 24 means a device, computer program, or other product 25 or equipment used to provide medical services; 26 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 4 •S 4473 IS ‘‘(4) the term ‘repair’, when used with respect 1 to critical medical infrastructure, means to restore 2 that critical medical infrastructure to a state that is 3 in accordance with the original specifications of that 4 critical medical infrastructure, including any 5 changes to those original specifications that are 6 issued by the manufacturer of the critical medical 7 infrastructure; and 8 ‘‘(5) the term ‘service material’, when used with 9 respect to critical medical infrastructure— 10 ‘‘(A) means any information or material 11 that the manufacturer of that infrastructure 12 provides directly, indirectly, or wirelessly to— 13 ‘‘(i) technicians of the manufacturer; 14 or 15 ‘‘(ii) repair facilities that are author- 16 ized by the manufacturer; and 17 ‘‘(B) includes— 18 ‘‘(i) manuals, schematics, wiring dia- 19 grams, mechanical layouts, and other per- 20 tinent data with respect to that critical 21 medical infrastructure; 22 ‘‘(ii) computer programs used in diag- 23 nosing problems with respect to that crit- 24 ical medical infrastructure or in cali- 25 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 5 •S 4473 IS brating, repairing, or maintaining that 1 critical medical infrastructure; 2 ‘‘(iii) service keys that are required to 3 access diagnostic information, and other- 4 wise authorize repairs, with respect to that 5 critical medical infrastructure; 6 ‘‘(iv) error logs that are required to 7 diagnose required repairs with respect to 8 that critical medical infrastructure; 9 ‘‘(v) preventative and corrective main- 10 tenance, inspection, and repair procedures 11 with respect to that critical medical infra- 12 structure; 13 ‘‘(vi) information regarding safety 14 alerts, recalls, service bulletins, specifica- 15 tion updates, and the need for adjustments 16 to maintain efficiency, safety, and conven- 17 ience with respect to that critical medical 18 infrastructure; and 19 ‘‘(vii) any other information provided 20 to diagnose problems with respect to, or to 21 service, maintain, repair, activate, certify, 22 or install, that critical medical infrastruc- 23 ture, including— 24 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 6 •S 4473 IS ‘‘(I) with respect to any replace- 1 ment part or equipment relating to 2 that piece of critical medical infra- 3 structure; and 4 ‘‘(II) training materials with re- 5 spect to that critical medical infra- 6 structure. 7 ‘‘(b) LIMITATION.—Notwithstanding the provisions 8 of section 106, it is not an infringement of copyright for 9 a covered service provider to make, or to authorize the 10 making of, a separate copy of service materials with re- 11 spect to the covered service provider, if— 12 ‘‘(1) making that separate copy is incidental to 13 the repair or maintenance of critical medical infra- 14 structure; and 15 ‘‘(2) the repair or maintenance described in 16 paragraph (1) is part of a response to the covered 17 emergency. 18 ‘‘(c) RULE OF CONSTRUCTION.—Nothing in this sec- 19 tion may be construed to imply that the actions explicitly 20 authorized under this section may not also be permitted 21 under another provision of this title.’’; and 22 (2) in section 1201, by adding at the end the 23 following: 24 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 7 •S 4473 IS ‘‘(l) REPAIR OF CRITICAL MEDICAL INFRASTRUC- 1 TURE RELATING TO COVID–19.— 2 ‘‘(1) DEFINITIONS.—For purposes of this sub- 3 section— 4 ‘‘(A) the terms ‘covered emergency’, ‘crit- 5 ical medical infrastructure’, and ‘repair’ have 6 the meanings given those terms in section 7 123(a); and 8 ‘‘(B) the term ‘covered healthcare provider’ 9 means— 10 ‘‘(i) a healthcare provider who is the 11 owner, lessee, or licensee of critical medical 12 infrastructure; or 13 ‘‘(ii) the agent of a person described 14 in clause (i). 15 ‘‘(2) PERMISSIBLE CIRCUMVENTION.—Notwith- 16 standing the provisions of subsection (a)(1)(A), it is 17 not a violation of that subsection for a covered 18 healthcare provider to circumvent a technological 19 measure that effectively controls access to a work 20 protected under this title, if— 21 ‘‘(A) the purpose of the act of circumven- 22 tion is to repair or maintain critical medical in- 23 frastructure with respect to that covered health- 24 care provider; and 25 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 8 •S 4473 IS ‘‘(B) the repair or maintenance described 1 in subparagraph (A) is part of preparation for, 2 or a response to, the covered emergency. 3 ‘‘(3) ENABLING CIRCUMVENTION.—Notwith- 4 standing the provisions of subsections (a)(2) and 5 (b), it is not a violation of either such provision for 6 a covered healthcare provider to manufacture, im- 7 port, offer to the public, provide, or otherwise traffic 8 in technological means to circumvent a technological 9 measure that effectively controls access to a work 10 protected under this title, or to circumvent protec- 11 tion afforded by a technological measure that effec- 12 tively controls access to a work protected under this 13 title, if that action by that covered healthcare pro- 14 vider enables a repair or maintenance permitted 15 under paragraph (2). 16 ‘‘(4) RULES OF CONSTRUCTION.—Nothing in 17 this subsection may be construed to— 18 ‘‘(A) exempt a covered healthcare provider 19 from compliance with any other applicable law 20 or regulation relating to the repair or mainte- 21 nance of critical medical infrastructure, except 22 as explicitly provided in this subsection; or 23 ‘‘(B) prevent the Librarian of Congress 24 from determining, under the applicable sub- 25 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 9 •S 4473 IS paragraphs of subsection (a)(1), that subpara- 1 graph (A) of such subsection (a)(1) shall not 2 apply to a covered healthcare provider relating 3 to the circumvention of a technological measure 4 that effectively controls access to a work pro- 5 tected under this title.’’. 6 (b) TECHNICAL AND CONFORMING AMENDMENT.— 7 The table of sections for chapter 1 of title 17, United 8 States Code, is amended by adding at the end the fol- 9 lowing: 10 ‘‘123. Limitation on exclusive rights: incidental copies of service materials made during maintenance or repair of critical medical infrastruc- ture.’’. SEC. 4. PATENTS. 11 Section 271 of title 35, United States Code, is 12 amended— 13 (1) by redesignating subsections (h) and (i) as 14 subsections (i) and (j), respectively; and 15 (2) by inserting after subsection (g) the fol- 16 lowing: 17 ‘‘(h) DESIGN PATENTS.— 18 ‘‘(1) DEFINITIONS.—In this subsection— 19 ‘‘(A) the terms ‘covered emergency’, ‘crit- 20 ical medical infrastructure’, and ‘repair’ have 21 the meanings given the terms in section 123(a) 22 of title 17; and 23 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 10 •S 4473 IS ‘‘(B) the term ‘covered healthcare provider’ 1 has the meaning given the term in section 2 1201(l) of title 17. 3 ‘‘(2) NON-INFRINGEMENT.—It shall not be an 4 act of infringement with respect to a patent for de- 5 sign obtained under section 171 for a covered 6 healthcare provider to fabricate a part on a non- 7 commercial basis, and as needed, for the repair or 8 maintenance of critical medical infrastructure with 9 respect to that covered healthcare provider, if the re- 10 pair or maintenance is part of a response to the cov- 11 ered emergency. 12 ‘‘(3) RULE OF CONSTRUCTION.—Nothing in 13 this subsection may be construed to exempt a cov- 14 ered healthcare provider from compliance with any 15 other applicable law or regulation relating to a part 16 or critical medical infrastructure described in para- 17 graph (2).’’. 18 SEC. 5. CONTRACTS. 19 Notwithstanding any other provision of law or regula- 20 tion, a provision of a critical medical infrastructure con- 21 tract is null and void if that provision of the critical med- 22 ical infrastructure contract prohibits or restricts the abil- 23 ity of a covered healthcare provider that is a party to the 24 contract to, in response to the covered emergency, repair 25 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 11 •S 4473 IS or maintain critical medical infrastructure with respect to 1 the covered healthcare provider. 2 SEC. 6. MANUFACTURER REQUIREMENTS. 3 (a) DEFINITION.— 4 (1) IN GENERAL.—Subject to paragraph (2), in 5 this section, the term ‘‘fair and reasonable terms’’ 6 means, with respect to a manufacturer of critical 7 medical infrastructure, that the manufacturer pro- 8 vides access to service materials, or offers for sale a 9 tool, with respect to the critical medical infrastruc- 10 ture at costs and terms that are equivalent to the 11 most favorable costs and terms offered by that man- 12 ufacturer to repair facilities that are authorized by 13 that manufacturer— 14 (A) using the net costs that would be in- 15 curred by that repair facility in obtaining an 16 equivalent part, tool, or documentation; and 17 (B) taking into consideration any discount, 18 rebate, or other incentive offered by the manu- 19 facturer. 20 (2) DOCUMENTATION.—For the purposes of 21 paragraph (1), if a manufacturer described in that 22 paragraph provides access to service materials that 23 are in the form of documentation, the term ‘‘fair 24 and reasonable terms’’ with respect to that provision 25 VerDate Sep 11 2014 03:40 Aug 23, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4473.IS S4473 kjohnson on DSK79L0C42PROD with BILLS 12 •S 4473 IS of access means at no charge, except that if the ap- 1 plicable service provider requests documentation in 2 physical printed form, the term ‘‘fair and reasonable 3 terms’’ includes a charge imposed by the manufac- 4 turer for the reasonable actual costs of preparing 5 and sending the documentation. 6 (b) DUTY TO DISCLOSE INFORMATION.—The manu- 7 facturer of a piece of critical medical infrastructure sold, 8 leased, or otherwise introduced into commerce in the 9 United States shall provide owners, lessees, or service pro- 10 viders with respect to that piece of infrastructure with ac- 11 cess to, on fair and reasonable terms, service materials 12 that are required to— 13 (1) diagnose problems with respect to that crit- 14 ical medical infrastructure; and 15 (2) service, maintain, or repair that critical 16 medical infrastructure. 17 (c) DUTY TO MAKE TOOLS AVAILABLE.—The manu- 18 facturer of critical medical infrastructure sold, leased, or 19 otherwise introduced into commerce in the United States 20 shall— 21 (1) offer for sale to the owner or lessee of the 22 critical medical infrastructure, a [Text truncated for display. 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