Intellectual property rights and advance purchase agreements in a crisis

The role that intellectual property law has played in the development and delivery of Covid-19 vaccines has attracted a great deal of public attention, policy focus and academic commentary since early 2020. IP rights are simultaneously presented as a key driver of health inequities, as well as central in facilitating unprecedented cooperation in vaccine development. This paper contributes to two interrelated areas of this debate, both of which are central to understanding how IP rights should function in a pandemic context. The first is the role that IP rights play, contractually, in permitting or restricting access to protected technologies and associated knowledge. The second is the reward IP rights ought to hold for their owner when the technological development in question is funded by the state. It addresses these two questions through analysis of the terms and conditions included in the publicly accessible Advanced Purchase Agreements (APAs) concluded by the UK government and EU Commission for the supply of Covid-19 vaccines. We argue that these voluntary contractual arrangements are suitable mechanisms for controlling the exploitation of IP in exceptional circumstances to safeguard the wider public interest. In so doing, we first investigate the nature and scope of the IP and IP related contractual clauses included in the APAs concluded by the UK government and EU Commission. Access to commercially sensitive data is rare and the relative transparency of the Covid-19 purchasing arrangements permits an almost unprecedented opportunity to examine the legal arrangements in depth. We find that the nature and scope of the IP and IP-related contractual clauses included in the APAs concluded by the UK government and EU Commission maintain strong rights in favour of the suppliers, with limited safegu *I.P.Q. 2 ards in favour of states. Secondly, our study breaks new ground by examining the role that IP controls play in these procurement contracts, arguing that IP safeguards are vital, and should be a core part of APAs. Third, we situate our analysis in the context of incentive-based theories of IP rights. APAs are established mechanisms for incentivising research and development in areas where the market-based incentives of IP rights fail to achieve state policy objectives. In this role they act as alternatives to these rights. They also operate to reallocate risk away from the IP owner and on to the state. For both these reasons we conclude that the existing approach to advance purchase agreements is inadequate to address these concerns. We therefore argue that their use justifies restricting IP rights in those agreements beyond the limitations currently provided for in statutory IP regimes. Our work evidences a clear need for change - greater attention to controls over the exercise of IP rights is warranted.