Interdisciplinary Study on Medical Research: Rescuing Intellectual Property Rights in Pandemic Emergencies from "Tragedy of the Anticommon"

Cursory:

A set of COVID-related research grants worth £620,000 (USD $850,000) have just been awarded to the University of Aberdeen's School of Law and its research partners of Kobe University's Graduate School of Law and the British Institute for International and Comparative Law (BIICL). The funds from the Japanese Society for the Progression of Science (JSPS) and the UK Research Institute (UKRI) will award the University of Aberdeen and the British Institute for International and Comparative Law with £424,857.38 and Kobe University with JPY 29,980,000, accordingly. The grants run for three years, from December 2021 till December 2024.

The funds are in support of the JSPS and UKRI recent call for 'Addressing COVID-19 Challenges with Japanese Researchers'. The research project proposes to examine how aspects of private law, commercial law, and intellectual property law might be reformed to better enable a rapid policy response in the face of an emerging pandemic. In particular, expertise from legal game theory, such as anticommons structures, will be used as an innovative legal research methodology. The research team includes legal scholars from the University of Aberdeen, BIICL, Kobe University, Hokkaido University, Nihon University, and Tokai University, making this one of the broadest UK-Japan legal research projects in recent history.

In Depth:

To solve new medical problems, such as viral outbreaks, many patents, copyrights, and other trade secrets need to be accessible to a variety of research labs in many countries. However, coordination problems in the markets surrounding medical and pharmaceutical intellectual property (IP) rights could prevent the rapid development of treatments, cures, and vaccines during the tightly packed timeframes of a moving pandemic. This situation can be described as an IP crisis. In addition, state regulations and policies to ensure safe research procedures and products often take years to complete. On the other hand, governmental interventions to IP rights may dis-incentivise private firms from investing in the necessary research in the future for the next potential pandemic. Thus, our research seeks to find solutions to the IP crisis that enable the continued functional trust of the market and of property rights during pandemics.

This research will examine legal issues in various legal areas in such periods of crisis and will propose solutions, using recent innovations in anti-commons theory as theoretical foundations. Anti- commons is a phenomenon when a cluster of separate parties hold exclusionary rights over a joint or shared asset, then that asset might become unusable, resulting in a loss of value or production to the group as a whole. The phenomenon was initially identified in property law, but it can be found arising from many areas of substantive, procedural, and administrative law. This is potentially a central problem in medical research given the large numbers of researchers and research institutes involved. We will investigate intellectual property law, to identify how the rights to control the use of patents, trademarks, and copyrights might cause anti-common problems that can prevent the rapid development of medical and pharmaceutical solutions. In addition to this academic significance, this research will hope to find alternative modalities and designs of intellectual property law that might be more responsive to emergency events and prevent the emergence of anti-common problems.

This project combines a wide set of legal expertise to address the problem. The research team unites global experts in Intellectual Property Law, Competition Law, Comparative Private and Commercial Law, Alternative Dispute Resolution, Public International Law, Public Law and Administrative Law, International Economic Law, Sociology of Law, Disaster Law, and Mathematical Methods of Law and Economics.