Intellectual property in a changed world

Written by Margaret Briffa | March 23, 2020


Will the current crisis bring about lasting change to the way in which we use Intellectual Property? We look at the areas where a little bit of altruism may go a long way.

In a race against time to find a vaccine for the Covid-19 virus the traditional wisdom of how to manage intellectual property may change.

Intellectual Property Rights are monopolistic and selfish creatures. They operate on the basis that to ensure innovation a just commercial reward must be given. This argument is made most strongly in fields where investment to develop products are huge and the timeline to reap rewards typically long.

The pharmaceutical industry is a prime example where the journey from lab to licence to prescribe can be years. In the world of drug patents there has always been a movement to encourage the industry to take a more altruistic approach particularly in times of crisis. The debate was at its most incessant during the HIV epidemic where the earlier availability of HIV drugs to undeveloped countries where the epidemic had a strong grip would have saved countless lives. In the early 2000’s big pharma didn’t join in any collective effort to combat the epidemic. Rather, many took legal action to ensure that their products would not be sold cheaply or copied by generic drug businesses.

Has the world changed? Might the current crisis be an opportunity for businesses that could have a role to play in combating disease and saving many lives see an opportunity for extending corporate social responsibility to some form of help for those countries less able to afford costly drugs.

Another issue of vital importance is around the sharing of data, an intellectual property right which can be very valuable to businesses and which is often guarded to preserve its commercial value.  I don’t mean personal data, but big data which is being collected by for example the World Health Organisation to build a picture of the epidemiology of this disease. The more data an organization can analyze the better it can help by issuing the most effective directions to protect the health of all nations. The WHO has a policy on who it will share data it has collected with. However there is no obligation on member states to share data so why would a company do so unless there is incentive to do so and an example set by governments?

Most people would agree that unprecedented times may need unprecedented solutions and if it leads to at least debate and reconsideration about our systems that is all for the good. That said we should not see the current situation as permitting any sort of free-for-all across all areas of intellectual property.

easyJet discovered this last week. Rather embarrassed it was forced to apologise to staff for a motivational video in which the chief operating officer at the airline copied significantly from a speech made by Taoiseach’s Leo Varadkar to mark St Patrick’s day.  A YouTube video that splices together footage of both men is available here. easyJet have said that it thought Varadkar’s address was very good and had borrowed from it. None of that however amounts however to any sort of defence to copyright infringement. Mr Bellow the easyJet executive who was responsible for the copying has promised to write all his own speeches in future. Right now with the airline all but grounded he has plenty of time to do that.

Written by Margaret Briffa, Solicitor

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