The Niskanen Center is proud to endorse the Critical Medical Infrastructure Right-to-Repair Act of 2020, introduced by Senator Ron Wyden (D-OR) and Representative Yvette Clarke (D-NY). The bill is an essential reform to U.S. copyright and patent law accommodating the desperate need for hospitals to fix ventilators in need of repair.

Under current copyright law, it is illegal to circumvent any technological protection measure (TPM) designed to restrict access to a copyright work–i.e. a piece of computer software. Due to the prevalence of TPMs in virtually every device we use today, these measures impose significant costs on both consumers and firms that use relevant equipment. The consequences of these policies go from excessive to dire if we’re talking about medical equipment like ventilators,” said Daniel Takash, regulatory policy fellow at the Niskanen Center.

He added, “But even if the restrictions on circumvention were removed, manuals, diagnostic software, and other essential service materials are also protected by copyright. And broken parts in need of replacement may also be under patent protection–another legal roadblock for those seeking to fix what they own or have leased. It is shocking how little control hospitals have over what they supposedly own.”

These issues are all addressed by the Critical Medical Infrastructure Right-to-Repair Act. For the duration of the COVID-19 pandemic, the bill would:

  • Make the copying of service materials necessary for the repair of medical infrastructure not copyright infringement;
  • Allow the circumvention of TPMs for the repair of medical devices and allow covered providers to offer technologies or tools to circumvent TPMs;
  • Make the non-commercial manufacture of parts needed for repair not an infringement of any design patents;
  • Nullify any contractual provisions preventing the repair or maintenance of medical infrastructure;
  • Require manufacturers of medical infrastructure to provide repair information and equipment needed on fair and reasonable terms; and
  • Require the FTC to conduct a study on the effects of the Act.

This legislation is essential for hospitals and other healthcare providers to ensure that the tools they own or lease are functional and can treat as many patients as intended. During the pandemic, it is entirely unreasonable for the manufacturers of critical medical infrastructure to not only impose the added costs associated with going through licensed providers, but also force healthcare professionals to rely solely on them for the tools and know-how needed to fix them.

You can read the bill here.