The World Intellectual Property Organization has released two new initiatives and a policy statement on intellectual property and responses to the COVID pandemic. The new initiatives and statement respond to many of the issues raised in an earlier letter from a broad coalition to WIPO’s Director General asking for a clear stance on intellectual property and the COVID pandemic.
New Tools
The new WIPO initiatives include a policy-tracker. The tracker compiles extensions of deadlines and other requirements to file for intellectual property protection due to the pandemic. The tracker also contains two sections tracking access initiatives. One page compiles legislative and regulatory measures; a second page tracks voluntary licenses and other actions that open intellectual property for research and access.
WIPO also released a new feature of the PATENTSCOPE database to permit searching for technological information disclosed in published patents relating to the detection, prevention or treatment of COVID-19.
A statement by World Intellectual Property Organization Director General Francis Gurry announced the new initiatives and added analysis and context.
A call for Action
On April 3, the week before Gurry was to make his annual public address on the state of WIPO, a coalition of over 160 organizations representing millions of educators, libraries, archives, museums, IP scholars and access to medicines advocates from 199 countries called on Director Gurry to “take a clear stand in favour of ensuring that intellectual property regimes are a support, and not a hindrance, to efforts to tackle both the Coronavirus outbreak and its consequences.” The letter specifically requested that Director Gurry encourage WIPO members to use intellectual property limitations and exceptions and call on right holders to take voluntary measures to open access to intellectual property protected knowledge and innovation for use in the pandemic. The April 24 statement includes both of these issues in broad terms, although it drew some criticism by stakeholders that signed the letter.
Flexibilities for Access
One of the main requests of the research, education and access coalition was that Director Gurry “encourag[e] all WIPO member states to take advantage of flexibilities in the international system that permit uses of intellectual property-protected works for online education, for research and experimental uses, and for vital public interests, such as access to medicine and culture.” This was a main theme of Gurry’s statement and of the new WIPO policy tracker. Although calling repeatedly for use of limitations and exceptions to be “time-bound” and ”targeted,” Director Gurry did encourage countries to consider using “policy measures that are available in international and national IP law to manage and to mitigate emergencies and catastrophes,” including compulsory licenses, which he described as “useful or even vital when there is evidence of a need to which they may be addressed.”
Access for Research
Director Gurry’s statement also mirror’s the coalition’s requests to recognize the importance of access to intellectual property for research and innovation, not just their products. One area where such access may be especially fruitful is in the use of text and data mining research using scientific journal articles, news sources, and other copyrighted works to identify treatment possibilities, infection trends, and other information. Creative Commons, one of the founding sponsors of the coalition letter to Director Gurry, explained:
“In these extraordinary times, it is critical that relevant scientific resources and intellectual property owned or developed in relation to the diagnosis, prevention, containment, treatment, and researching of COVID-19 be made freely available to anyone in the world to use and build upon to end the pandemic.”
Director Gurry’s statement addressed the research needs for access to copyrighted content during the pandemic. Echoing the coalition’s description of access to access to materials for research and experimental uses as “vital public interests,” Director Gurry explained that “creative content has a vital role to play in the distribution of data, information and knowledge that may be essential for innovation.” He noted as well that “exceptions and limitations exist in IP systems to facilitate access in certain circumstances and under certain conditions to books, publications and other creative content.” WIPO’s policy tracking tool contains scores of examples where copyrights are being openly licensed or otherwise made available for research uses for COVID.
Voluntary Measures
Director Gurry’s statement also reflects the coalition’s request that he promote voluntary measures to open intellectual property for research and access. The coalition letter specifically referred to efforts to “remove licensing restrictions that inhibit remote education, research (including for text and data mining and artificial intelligence projects) and access to culture,” as well as pools, pledges and other measures that “eliminate barriers to the competitive global manufacture, distribution and sale of potentially effective products.”
Although Director Gurry did not endorse or pledge to support the formation of a pool at the World Health Organization for COVID-related technology, which the coalition letter asked for, he did praise “the many voluntary actions being undertaken by organizations, corporations and other rights holders in the exercise of social responsibility during the COVID-19 crisis.” The WIPO policy tracker page on voluntary measures catalogues many of these initiatives, including pledges to not enforce IP rights against researchers – such as the Open COVID Pledge, opening of copyrighted databases of journals and other materials for research use, open licensing of design protections and other IP to facilitate mass production, and opening of cultural content for reading and enjoyment during isolation.
Continuing Criticism
WIPO’s initiatives and Director Gurry’s statements addressed the main themes of the coalition letter to him of April 3. Some of the statements qualifications, however, drew criticism from soem of the letter’s sponsors.
Many access to medicines advocates were taken aback at several parts of Dr. Gurry’s statement that appeared to debate the urgency of taking measures now to ensure access to medicines measures. Director Gurry appeared to deny the urgency of such action, begining his statement with the assertion that “[t]he main challenge at the present time is not access to vaccines, treatments or cures for COVID-19, but the absence of any approved vaccines, treatments or cures to have access to.” He later expounded that “there does not appear to be any evidence that IP is a barrier to access to vital medical preventive measures, such as vaccines, or to treatments or cures.”
Some disputed that access and innovation goals should be separated into stages in policy formulation as Director Gurry suggested. Professor Brook K. Baker, Senior Policy Analyst for Health GAP (Global Access Project), responded:
“Instead of urgently recognizing the need for massively increased manufacturing capacity across the whole spectrum of IP-protected medicines, vaccines, diagnostics, devices, and PPEs, Director Gurry argues that the world should wait for IP-related problems to develop. Does he not see the threat of unaffordable prices, of inadequate supply, of rich countries jumping the queue and buying up initial supplies, and of poor people globally waiting for the crumbs of single-source supply?”
Access to medicines advocates have also been pressing for WIPO and other policy makers to address trade secret and “know how” concerns, an issue raised in the coalition’s letter. Director Gurry’s statement did not address that issue.
Others took issue with the emphasis in Director Gurry’s statement that responses to the pandemic must be time-limited rather than indicating more systemic problems. “Voluntary licensing arrangements for temporary access to copyright-protected content during the COVID-19 pandemic are to be welcomed”, said Teresa Hackett, EIFL Copyright and Libraries Programme Manager. “But emergency measures in times of crisis are not enough. Coronavirus isn’t an outlier, it’s part of our interconnected viral age.” Hackett pointed to the need for the global copyright system to adopt more systemic change. “For example, over a third of WIPO member states currently have no exception for the making of research copies, and many others do not permit digital uses.”
