IP Issues Under the Coronavirus: Framing the Relevant Issues and Questions

Siyu Yan is an L.L.M. candidate, 2020 at NYU School of Law.

Since the beginning of 2020, we have experienced an outbreak of Coronavirus around the world. Some regions or countries have recovered from this pandemic while others are still trying to overcome a tough situation.

Due to home-quarantine, many in-person activities have turned into virtual activities through online software. Most industries have shut down while some specific industries have grown up quickly. This has resulted in many copyright issues.

With regards to the popularity of online courses or meetings, many students and professionals have started to use virtual meeting software. Teachers have put up their presentations online and regularly give their lectures though online video or audio services. Professionals have presented their business plans through online video meetings.

How can we protect the copyright in these presentations? Will the recording of a video or audio lesson/meeting by unauthorized parties violate the host’s copyright? Shall we impose any liability to these app developers and sponsors if such incident occurs? Is there a role for information privacy law in protecting trade secrets? How could, or should, that be applied? In some countries, the app developers may be held liable by criminal law. Information privacy is also a big concern in countries where the internet is rapidly developing.

The software and apps also raise patent issues. Many technology companies in China have started to develop and merchandise HD cameras that could be used to record courtroom trials since many trials in Chinese courts have been conducted virtually during the pandemic. Shall we grant patent rights with regard to these technologies?

During the time of self-quarantine, video games and streaming industries have become more and more popular. People have found various ways to entertain themselves. Since cinemas have shut down, many people have posted screenshots of a film and posted their own narrative of the film story to share with other people online. Will this be viewed as infringing the copyright in the film? If so, what rights have been violated? Or, rather, does this constitute fair use? Why? In some cases, the poster only uses a few clips from the movie and writes most of the narrative by himself or herself, then posts them online for free. It is possible that they may claim fair use because they are not using it for a commercial purpose, and the amount of copying is not that much. The condition of posts vary and we may need specific analysis regarding each case.

In a predictable future, many businesses may transfer to a remote model because people are not willing to go out to crowded public areas before the pandemic is controlled or before a vaccine has  been successfully developed. That means physical stores may close and online merchants will further increase their market share of shoppers. At the same time, branding and advertising matters will also transfer to the virtual away from the physical world.

If that is the future, new issues in trademark law may emerge. That is, how should we define “use in commerce” in a virtual world? Traditionally, “use in commerce” means use in interstate businesses. In a virtual world, there are no clear boundaries between different states; how, then,  should we define what constitutes “use in commerce”? Is starting an online business enough? Or should we also look into which states the consumers come from? Or shall we, instead, look into the amount of orders the business generated? Shall we abandon the traditional definition of “use in commerce” in exchange for a definition that functions in the virtual world? It is possible that the traditional definition of “use in commerce” may become weaker with the development of online stores and the change of people’s customs of purchasing goods. The physical boundary of different states will become much more blurred than it is today.

The world is rapidly changing, and we human beings may not get back to the “old good days” so easily. The legal landscape may also rapidly change as a result. It is time to think about it, and it may be time to seek new innovation.