Outgoing Director General of the World Intellectual Property Organization (WIPO), Francis Gurry, made two public statements this week addressing what he termed the “policy issues” raised by the COVID-19 pandemic. His initial response was that it is “far too early” to address access to medicine and other IP policy issues raised by COVID-19. But in a follow up briefing with the press he revealed that he favors a “special mechanism to share drug patents” and would be releasing a statement or policy on the issue later this week.

A call to action

A broadly endorsed letter to Director Gurry last Friday, before his annual report on the state of WIPO, requested that he address several key policy issues raised by the COVID-19 pandemic. The letter specifically asked that he take action to guide WIPO members on implementation of flexibilities in the international IP system “for online education, for research and experimental uses, and for vital public interests, such as access to medicine and culture.” The letter asked that Director Gurry promote the removal of licensing restrictions by rights holders that impede research, support voluntary licensing mechanisms and intellectual property pledges, and guide countries in the removal of trade secret and other barriers to “achieve universal and equitable access to COVID-19 medicines and medical technologies.”

The letter to Director Gurry remains open for endorsement. It has received signatures by over 300 individual researchers and educators and by over 135 organization who represent more than 32.5 million educators, 2.5 million libraries, and 200 copyright scholars in 199 countries. The full letter, and a form to endorse it, is available here: https://tinyurl.com/GurryCorona

Director Gurry responds – Policy issues “too early”

At the very end of his hour-long annual public address on April 7, Director Gurry turned to what he called the “policy issues” raised by the pandemic. But he expressed a reluctance to comment on them. He explained:

“Some of the questions that are arising are rather of a policy nature. I think it is far too early to make any reflections on this. Because we are really beginning in many respects of this crisis.” See the WIPO Video of Driector Gurry’s address, at 56:06

He went on to list one “Policy consideration of an immediate nature” which he is leading WIPO to work on:

“We are going to depend on startups for innovation …  some countries are considering delay of fees . . . to ensure that IP is protected despite lack of liquidity. . . . So this is [a] sort of policy consideration of an immediate nature we are looking at.” [See 57:00]

He turned briefly, and as the last item of his presentation, to the issue of intellectual property and health technology:

“Questions are going to be asked about access to medical supplies, access to medicines, and this is another major policy area for reflection that is almost certain to emerge from the current crisis and we are seeing activity at the national level in many countries. As I said, I think that at this stage it is premature to have any firm views about this matter. We are at the early stages of our understanding. But just to reassure you, we are reflecting on this and watching this with great attention and trying to stimulate an international discussion about some of the elements that we can see.” [See 57:59]

Director Gurry Responds II: Considering Patent Sharing Tools

The day after his public address, Director Gurry took questions from several members of the press. There he expounded on the issue of IP and health technology at some length, and released that he would be publishing a statement on the topic this week.  

On the press briefing, a reporter asked whether a recent compulsory license by Israel for COVID-19 medicines indicated “any risk of serious conflict growing” and “for the integrity of the patent market.” Gurry explained:

“This is a hot issue and a very sensitive issue. I would say that starting point should be – we are in a profound crisis that is causing widespread suffering. There is a unanimous approach to reduce the suffering occurring. It is an extraordinary situation. The international framework does envision flexibilities to deal with health emergencies.”

Gurry stated a desire that countries efforts be “targeted,” “that they deal with real needs and shortages.” He confirmed that this is what he was seeing in country responses thus far. “So far that is what we are seeing – targeted actions to people that need them.”

Director Gurry appeared dismissive of more fundamental critiques of the IP “system” and expressed concern that some actions could derogate form the rights of artists and musicians.  “I hope it is not a general blah blah about the intellectual property system,” he remarked.

“We have an economy dependent on innovation. We have a society that is dependent more or less on the vitality of cultural products. We have to ensure as a secondary consideration (primacy is health and safety) that the actions we take are not just to derogate, for example in the creative industries — the actors and others who are unemployed.”

Director Gurry stated his desire to “ensure that measures are time bound, targeted, . . . Whether that translates into a completely different system, I doubt it.”

Gurry answered favorably to a follow up question on whether he envisioned “that WIPO will advance some special mechanism to share drug patents?” He described the difficulties of reaching negotiated multilateral solutions and stated that “non-legislative practical measures are a great way forward. We are in discussion with various parties to see what could be done in this regard.”

Director Gurry included in his response that he actively considering a policy statement on the issue. “I will address this [issue of IP and health technology] in a communication toward the end of this week. It is a work in progress. I will say more about it at that stage.”

https://www.youtube.com/watch?v=e30vvtrdb84&feature=youtu.be (at min 24).