Title: Interdisciplinary Study on Medical Research: Rescuing Intellectual Property Rights in Pandemic Emergencies from "Tragedy of the Anticommon"
Funder: Economic and Social Research Council

Abstract: First, this research project 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. Second, 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 research project will also investigate contract law, commercial agreements, conventions and treaties, to see how legal design can overcome anti-common structures. Example: might alternative views of reasonable interpretation, of fairness doctrines, and of other legal principles and Grundnormen of contract law enable fewer anticommons to emerge? Another research goal is to find private law solutions that continue to reward private enterprises for investing in medical research and innovation, so that they won't face forms of assets loss (eg temporary or permanent loss of IP rights or licenses) that would incentivise them to avoid such future investments. This research will also investigate a range of regulatory anticommons, that might arise from medical and pharmaceutical regulations and administrative procedures, across research activities, production activities, and distribution and approval for medical uses. It seeks alternative enactments of these regulatory and administrative rules that could better prevent anti-commons from forming and causing regulatory problems. Another vector of the research is how to re-dress the legal problems that arise once anti-commons result. Might the state have an emergency power to override private rights and regulatory complexity, might the state enable mediation or other dispute resolution procedures that can expedite the handling of the conflicts in rights, or might the state design an enactment with temporary emergency powers? This project is highly original and innovative, in that: 1. It proposes a broad approach to the problems of market coordination across multiple areas of private and public law from the unified perspective of anti-commons. 2. It will research a range of options from strategically optimal behaviors and potential modes of dispute resolution, but most importantly, will look deeper than other recent COVID-19 research projects to investigate the core rules of substantive law themselves, to identify if civil codes, commercial codes, and frameworks supporting intellectual property rights can be adjusted to prevent policy frustration before it occurs. 3. Other solutions in intellectual property rights will be comparatively reviewed, including but not limited to patent pooling, forms of compulsory licensing frameworks and IP rights waiver; we will also critically re-examine the ideas of 'fair use', reasonableness, and good faith as nexus points between private law and intellectual property law. 4. It combines a wide set of legal expertise to address the problem, not merely relying on IP law experts. 5. It will attempt to provide a common set of legal guidelines to coordinate across multiple leading states engaged in medical research, thus the results include international and multinational elements. At the end of this research project, several goals will have been achieved: - New flexible and robust legal solutions for enabling rapid medical research and development during periods of urgency and emergency will be delivered to policymakers - New understandings of how commercial law and private law gave rise to problems of market coordination, and that via anti-commons theoretical analyses, new solutions will be offered to policymakers. Public international law and international economic law will be analyzed for new solutions as well. Deepened understandings of how IP law gives rise to policy-frustrating anti-commons will enable new solutions on how to prevent those policy problems.

Lay abstract: 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.

Research activity codes: 8.3 POLICY, ETHICS AND RESEARCH GOVERNANCE
Health categories: INFECTION