The COVID-19 pandemic has created an unprecedented impact on nearly every facet of global society. We have seen school and university shutdowns, business closures, travel restrictions, economic disruption, hastily implemented work-from-home and remote-teaching mandates, and an increasing number of “shelter-in-place” orders (including where I live in Illinois) that have, as of this writing, affected more than 100 million Americans. This is to say nothing of the impact on those who are dealing directly with the illness in either themselves or their loved ones, as well as the fear of exposure that nearly all of us must contend with.
The virus’ impact on law and legal systems is only just beginning to be felt. In my legal research course, I teach a module on business research, which points out that among the differences between law and business is that legal structures are slower to change and slower to react to external events. While various economic stimulus packages were issued as new laws, they are mainly additions and/or a restructuring of new financial resources on existing platforms. Long-term legal changes may come over time and after more thorough legal and political deliberation.
In many respects, however, it is existing and older acts that have been invoked during this crisis. On March 13, 2020, the president declared a national emergency. The declaration was issued under the National Emergencies Act of 1976, which created an authority, structure, and procedure for the declaration of national emergencies. The act has been invoked a number of times by all of the presidents in office since 1976, although this is one of the most far-reaching instances in terms of its impact and implications. An earlier declaration of a public health emergency was issued under the authority of the Public Health Service Act of 1944, which was the first federal law to allow quarantining. The administration also invoked the Defense Production Act of 1950, a Cold War-era law that allows the president to prioritize and restructure private manufacturing and materials production to address national defense needs.
Among the more immediate impacts for the educational, library, and information communities has been the closure of schools, universities, and libraries and the shift to remote instruction and access. My school implemented remote instruction in barely 48 hours, including moving course content onto digital platforms. Shifting content to new platforms raised copyright and potential other legal issues. For copyright, the act of copying a resource without authorization can create liability for infringement. While licenses are available for some content, other content may not be licensable, at least not immediately.
This where fair use can show a direct application of the law to the novel coronavirus. Fair use (17 U.S. Code §107) provides for certain exemptions from infringement for certain educational, research, or critical uses. In general, educational uses are favored because of the social benefit, but that favor is not unlimited. Still, the exigent circumstances of the fast-paced shift to remote teaching would suggest a very high degree of favor under the fair use test. A group of librarians has issued a white paper outlining this argument in more detail.
In the patent space, patent law does not have a similar fair use provision, which suggests that any emergency need to infringe on another patent in order to make a critical product would still remain an infringement. However, a couple of narrow exceptions do exist—which could be critical to the development of COVID-19 treatments and vaccines. More than 200 years ago, a U.S. federal appeals court carved out a narrow exemption to patent law that has come to be known as the “research exemption.” As applied to drugs and pharmaceuticals, it allows for pure (noncommercial) research and experimentation using patented drugs or compounds in order to more fully understand their value and potential applications. The second exemption was created in 1984 in the so-called Hatch-Waxman Act, which allows for limited experimental use of patented compounds as part of the process necessary to obtain U.S. Food and Drug Administration licensing. Once a new use reaches that stage, licensing needs to be pursued.
Working from home and remote teaching have raised data management and security concerns. Cybersecurity and data protection issues, along with hacking and phishing attempts that target COVID-19-impacted users, are among the strongest concerns. The Federal Trade Commission has issued online security tips for working from home, including ensuring that cybervirus protection and router security applications are up-to-date and advice on how to secure data files. A number of public and private organizations have launched FAQs or similar guidance about handling remote work issues. Trade groups, including one representing companies such as Google and Facebook, have asked the California attorney general’s office to delay enforcement of the new and controversial California Consumer Privacy Act—which imposes additional restriction on the handling of personally identifying data of California residents—until 2021 so they can focus attention on managing a response to the virus.
The pandemic has also had a profound effect on most of the country’s legal and regulatory infrastructure. Most court systems are shut down as much as possible, limiting hearings and proceedings to criminal issues, which have “speedy trial” and other constitutional mandates. Government bodies are curtailing routine activities. The U.S. Patent and Trademark Office (USPTO) has closed its offices to the public, but it remains active for managing and processing patents. The recently passed Coronavirus Aid, Relief, and Economic Security (CARES) Act empowers the USPTO to adjust deadlines and waive certain fees for both patents and trademarks.
Several publishers and software companies have responded to the crisis by expanding their offerings, and in some cases, waiving fees. Zoom, Canvas, Blackboard, Panopto, BlueJeans, and several other vendors and solutions have been instrumental in managing remote-teaching and work-from-home resources. In my little area of legal academia, Thomson Reuters, Wolters Kluwer, Elsevier’s Lexis, The Bluebook, and others have offered free access to ebooks, study guides, and other materials. This has been invaluable to students who can no longer access their libraries and book lockers.
Librarians too have stepped up considerably. Libguides, research guides, shared Google Docs, and other information collections have provided valuable and reliable information about the virus. In a shameless plug for my own institution, the three library systems at Northwestern University—the main University Library, the Galter Medical Sciences Library & Learning Center, and the Pritzker Legal Research Center—are collaborating on offering support to campus researchers investigating medical, legal, and policy issues stemming from the pandemic, including investigative research on treatments and vaccines. I have no doubt that ours is only one of many such collaborations that will lead safely to an end to this challenge.