Contouring IPR and Service Sector Regulation against COVID-19

Businesses will face significant challenges after the worst of the COVID-19 pandemic passes. The world will almost certainly change substantially, and parallels have been drawn to the Great Depression of 1928, with fears arising about many economies around the world going into free fall.

There is one critical difference between the disruption caused by the current pandemic and almost every other pandemic in history: the current state of technology.

There is no dearth of commentators who claim to have all the answers but it's hard to know how they come by their certainty. COVID-19 has created a dynamic, rapidly evolving situation consistent only in the virus associated with it being particularly virulent. Not enough seems to be known about it yet to be able to be certain of exactly how to respond to it.

Technology is not a panacea but having easily available technological responses to many of the problems posed by a pandemic is a game-changer. Unfortunately, there is no universal consensus regarding how best to leverage technology, and how to ensure that the regulation of technology is optimal. Truth be told, it isn't clear what optimal regulation would look like.

A Goldilocks Exercise

In the short term, it is likely that we will go through a phase where regulation is either too little or too much before we find a balance where regulation is not only adequate but also flexible enough for businesses to be able to tweak their own responses to the pandemic in a way that would best enable them to survive its fallout.

There are, of course, competing interests at play, and rights which must be balanced: the right to individual privacy will have to be weighed against the right to public health, the right to conduct business against the right to individual health. How much can an employer legitimately demand of an employee in the circumstances? To what extent is it acceptable to have one's expectations of individual privacy be adjusted for the greater good?

Having a dozen or more people routinely interact with each other from distant locations to brainstorm would have been unthinkable during the so-called Spanish Flu at the beginning of the last century, and during the Great Depression which came a decade later. Even so, although we now have the opportunity to leverage comparatively advanced technology to facilitate better public health outcomes and to enhance the ease of providing services whilst simultaneously maintaining a physical distance from each other, we have our work cut out for us. We need to figure out how best to regulate technology, and how best to use technological advances to complement conventional methods of fighting a pandemic.

Arenas for Action

In the circumstances, regulatory structures need to be enhanced to facilitate the sharing of information, to protect the conduct of business, and to ensure seamless coordination between the many agencies, organisations, and authorities contending with the COVID-19 crisis. Fortunately, such structures do not always need to be built entirely from scratch.

In general terms, India has compulsory licensing provisions in its patent statute which could be used to promote public health, and, where the grant of a compulsory licence in respect of medical devices that can be printed using 3D technology is possible, regulations could potentially be framed to allow for such printing to be widely executed for the duration of the pandemic following the grant of a licence depending on the terms of the licence.

Permissive intellectual property licences could also be useful in the realm of copyright. Many publishing houses have already eased copyright licence restrictions on research related to COVID-19 so as to make the research more easily accessible to scientists globally. However, by and large, this has been left to the discretion of publishers. The potential for direct state intervention is limited in light of India's international obligations although the government could issue advisories to encourage research about COVID-19 to be made freely accessible in public interest.

Nodal agencies using contemporary communications technologies could be purposed to immediately and seamlessly coordinate B2G interactions between private players and public authorities, where private players have become involved in the state-led fight against COVID-19, so that those who are best suited to execute a specific function are entrusted with it. A laboratory scientist who knows what equipment is required, for instance, does not necessarily have the skill set of a government procurement lawyer to negotiate to have the equipment actually acquired at scale for the best price and in a timely manner. Here, too, there is no reason for entirely new operational processes to be created: all that is required is for existing processes to be fine-tuned wherever necessary possibly with their scope being widened to enable them to respond to the varying demands of the crisis.

Further, routine cross-disciplinary consultation within government would likely help enhance the policy response where B2C interactions between businesses and their customers are involved. Regulations regarding what may be bought online and offline have been issued, changing according to evolving situations but, to take just one example, it has not always been explicitly specified that 'home delivery' offered by eCommerce companies as well as some brick-and-mortar stores includes 'doorstep delivery', where such deliveries are permitted. Issuing such a clarification could help to ensure that senior citizens and people with disabilities, especially those with mobility issues, have access to essentials without being subject to the whims of housing society managers who may be well out of their depth.

Supportive Regulatory Measures

Long before the world came to be afflicted by the current pandemic, India's copyright statute was amended significantly, and some aspects of the law are remarkably compatible with enhancing public welfare in the midst of a pandemic.

To continue with a discussion of disability rights: in 2012, provisions were introduced to the law via Sections 52(1)(zb) and 31B of the 1957 Copyright Act to allow the formats of copyrighted works to be altered to suit persons with disabilities. Section 31B describes the process through which a compulsory licence for the benefit of persons with disabilities may be granted where accessible copies are sought to be made available on a for-profit basis in circumstances which fall beyond the scope of Section 52.

The relevant provision contained in Section 52 of the Copyright Act was structured as an exception to copyright infringement. In essence, it prompts the law to turn a blind eye to persons or eligible organisations making accessible copies of protected works available to people who have disabilities (through the unauthorised adaptation, reproduction, issue of copies or communication to the public of such works) as long as they take reasonable steps to prevent accessible copies from entering ordinary channels of business and act on a non-profit basis.

What this means in the midst of the COVID-19 pandemic is that, even though the delivery of hard copies of books may not be easy to come by, persons with disabilities need not necessarily be disadvantaged in comparison to abled people. Regardless of whether or not people have disabilities, electronic versions of books are often available for 'sale' online, and, provided they act within the scope of the law, persons with disabilities have the option of converting eBooks to whichever format suits them or having eBooks so converted by others for themselves. Doing so certainly requires a degree of privilege and technical expertise but those are not obstacles erected by copyright law itself.

Electronic books tend to be licensed and not sold despite the fact that we usually talk of buying eBooks rather than of merely licensing them. In India, overriding Technological Protection Measures to execute a legal act is not an offence under copyright law although there is no body of case law establishing whether a contractual agreement not to tamper with TPM could supersede a statutory entitlement — in this case, to alter formats of copyrighted works for the benefit of persons with disabilities. Still, considering that public policy clearly veers towards allowing people with disabilities to access protected works, and considering that Indian contract law would not uphold agreements against public policy, it is difficult to imagine a court holding that the law had been broken by the otherwise legal making of an accessible copy particularly if the agreement relating to TPM were governed by Indian law.

The point of this comparatively detailed discussion of the law in relation to copyright and disability is to demonstrate that even though much of our lives linked to technology is governed by non-legislative mechanisms such as EULAs — licence agreements which specify how end-users may deal with licensed software and content — there exist regulatory opportunities to ensure that the relevant contracts are structured in a way that enhances public interest. Such an exercise is already well under way in the case of ensuring that persons with disabilities have access to copyrighted works, and there is no reason why it could not be further expanded to cover other areas and walks of life.

What Can Be Done

There are, of course, policy choices which must be made. The sheer lack of information currently available about COVID-19 and its socio-economic effects means that the government will have to step away from the micromanagement of commercial enterprises. Indeed, it cannot micromanage unknowns, and to expect it to do so would be grossly unfair.

History is a prologue to the present, and it may be prudent to consider the impact of regulatory interventions which followed previous contagion-induced economic crises to determine the best course of action. The trouble with such an approach is that the circumstances of the past are not exactly replicated in today's world, and historical records are almost never complete. Estimates of the death toll of the 1918 pandemic, which likely contributed to the development of the Great Depression, range from 35 million to 100 million, and it is not easy to delve into documents to understand how exactly events unfolded and to assess the outcome of specific policy decisions. If not anything else, detailed records are not always accessible assuming they exist at all.

Nonetheless, it is worth not discarding the lessons which history may have to teach us. We could, for example, investigate if antitrust law should be applied differently during the pandemic so that the government takes more of a hands-off approach than it ordinarily would.

It seems reasonable to suggest that combinations of large existing players should be allowed to operate in the short term to meet the requirements of the COVID-19 emergency as they would likely be best placed to do so in terms of having the necessary infrastructure and logistics. If such a suggestion were adopted, it would also be important to ensure that the relaxation of the law was for a limited period stretching no longer than absolutely necessary since its adoption would carry with it all the concerns against which competition law ordinarily rallies and, in the long term, it would almost certainly accord well-established incumbents an unfair advantage against the entry of new players.

Hard data is needed to develop an informed opinion about the desirability of any regulatory measure: our best chance of success in fighting the COVID-19 crisis lies in relying on science and evidence. There are a number of agencies and organisations which are collating data piecemeal although it is difficult to glean a complete picture of the current circumstances from the information available. All that is certain is that both public health and the robustness of the economy are at stake.

It may be difficult for comprehensive ex ante government regulations to be framed due to a paucity of background information, but it is important that the regulations which are framed emphasise the need for companies to behave responsibly and to ensure both consumer and employee welfare failing which they could be subject to post facto penalties.

Ultimately, in terms of prescribing regulations for corporate India, the government can do little beyond evaluate the available information regarding the virus and its fallout, and prescribe broad guidelines within which companies should operate. This may mean both framing new regulations and reviewing existing ones to give businesses the flexibility to respond to the crisis proactively to the extent that they can, and to ensure that both the public and the economy are protected to the greatest possible extent.

The authors are lawyers and colleagues. They engage with dispute resolution and legal policy in relation to intellectual property, eCommerce, and technology. The opinions contained in this article are their own.