Open movements are often proposed as the solution to IPR barriers. Indeed, during the COVID-19 pandemic, there have been numerous calls to use open movements and for government intervention around IPR access.Footnote 27 In the IPR context, open movements augment existing frameworks and allow access to materials that would normally be restricted. Yet, “open” plays out differently in patent and copyright law. As will be elaborated on below, open innovation (OI) is more commonly used in relation to inventions, whereas open access (OA) has a long-standing attachment to copyright law.
Interestingly, funding approaches also differ in the patent and copyright contexts, which can impact “open” obligations. With patents, the makers of both privately and publicly funded initiatives retain the capacity to apply for IPR. For privately funded innovations, this complements the underlying IPR rationale. However, when public funding is involved and the maker retains IPR, this allows the rightsholder to charge the public for that invention again, with no restriction on cost. There have been numerous calls for public funding bodies to insert IPR or pricing conditions into funding obligations.Footnote 28 Funders increasingly recognise the need to ensure the public welfare benefit of the research that they fund, but significant progress remains to be made.Footnote 29
With copyright, public and private funding schemes often set OA obligations to release research and data under open licences or tools.Footnote 30 For example, the Bill & Melinda Gates Foundation, Ford Foundation, and William and Flora Hewlett Foundation require materials to be made available via a Creative Commons CC BY licence.Footnote 31 In 2018, a group of 11 funders called cOAlitionS announced they will require funded research to be published in OA journals, platforms, and repositories without embargo.Footnote 32 Indeed, funders have been instrumental in changing scholarly publishing practices in relation to the open sharing of data, research, and publications as a condition of funding.Footnote 33
Against this backdrop, it is worth examining open movements to determine whether grassroots and industry driven initiatives can sufficiently fill the gaps left open by regulatory and statutory frameworks and promote the public(s) interest(s).
Open Movements in Patents for Public Health
In patent law, OI is becoming more popular. Developments through OI include Mozilla Firefox and Moodle, and this type of innovation has been used by companies such as LEGO and NASA.Footnote 34
Open Innovation Theory
OI has been mostly defined in reference to its more common and well-known counterpart – closed innovation.Footnote 35 Closed innovation involves research taking place within a particular company. Inventions are generally protected by patents (if granted) with access completely controlled by the rightsholder. OI has been defined as “the use of purposive inflows and outflows of knowledge to accelerate internal innovation and expand the markets for external use of innovation respectively”.Footnote 36 Companies that adopt OI use both internal and external knowledge to develop new inventions, often in partnership with other firms. In doing so, they rely on private ordering, for example, using contracts to construct terms of access to IPR. Many of these initiatives have increased information flow, resulting in quicker development compared to closed innovation models. However, OI often remains for-profit and restricted by patents. As a result, how and when licences are granted depend on the rightsholders.
Geertrui Van Overwalle has distinguished this type of “firm-centred open innovation” (FCOI) from “community-centred open innovation” (CCOI).Footnote 37 While the results of FCOI are commonly restricted, CCOI has broader parameters. It involves a group of makers connected by “shared worldviews, norms and identities”.Footnote 38 Accordingly, there are different motivations to innovate than with traditional IPR incentive arguments. The resulting inventions are generally not patent protected, not-for-profit, and made more accessible to wider and immediate public(s) than inventions produced under traditional innovation models.Footnote 39 Van Overwalle distinguishes both groups from individual user innovators, whose contributions could be their own projects, or a part of group or community innovation.Footnote 40
Open Innovation in Practice
OI often takes the form of patent pools and pledges. There are a number of examples of rightsholders limiting their IPR through conditional mechanisms. For example, the UN Medicines Patent Pool (MPP) negotiates licences with rightsholders to provide access to medicines to low/middle-income countries.Footnote 41 While such initiatives can serve to address IPR-related access barriers, some can also raise competition concerns and entrench the power of existing market incumbents with strong patent portfolios, disadvantaging both wider and immediate public(s).Footnote 42
Open source software can be considered a subset of OI, falling under either CCOI or individual user innovation.Footnote 43 Software can be patent protected in the traditional sense and thus fall within OI.Footnote 44 Alternatively, open source licences can permit the use and re-use of software. This allows others to view, share and adapt the software so long as any modifications are also shared under the same permissions. Open source can go beyond OI by implementing licences that ensure users retain access to downstream innovations.
During the COVID-19 pandemic, there has been a scramble to develop treatments and vaccines to counter this disease alongside the parallel scramble by IP scholars, activists and practitioners to enable access to these innovations. The specific response thus far has resulted in two group initiatives being set up to grant access to patented inventions and technological know-how.
The first initiative is the World Health Organization (WHO) COVID-19 Technology Access Pool (C-TAP). On 29 May 2020, Costa Rica and the WHO launched a voluntary IPR pool for COVID-19 related technologies. The Pool compiles all pledges made under the WHO’s call to action for sharing COVID-19 “health technology related knowledge, intellectual property and data” and draws on relevant data from pre-existing pools.Footnote 45 C-TAP is supported by Unitaid and MPP.Footnote 46 As such, C-TAP could increase the availability and exchange of information needed to respond to the pandemic and “would make country-by-country, product-by-product confrontations over such knowledge redundant.”Footnote 47
The second initiative, developed by the Open COVID Coalition, is the Open COVID Pledge. Led by legal and scientific academics and practitioners, this pledge “calls on organisations around the world to make their patents and copyrights freely available in the fight against the COVID-19 pandemic.”Footnote 48 It is another mechanism that can be used to fulfil the WHO’s call to action. By signing the Pledge, rightsholders commit to openly-license medical equipment, testing kits, software, AI and biotech solutions to help fight the virus through a pre-prepared and very simple licence.Footnote 49 The pledge currently applies to more than 250,000 patents worldwide.Footnote 50 Generally, the pledge accepts three categories of licences: standard, compatible and alternative.Footnote 51 The most commonly used standard Open COVID License (OCL-PC v1.0) grants a “non-exclusive, royalty-free, worldwide, fully paid-up license (without the right to sublicense)” for products, services and processes for the sole purpose of ending the COVID-19 pandemic.Footnote 52 The OCL is retroactive to December 2019 and expires one year after the WHO announces the end of the pandemic (or 1 January 2023, unless extended by the rightsholder).
There have also been a number of individual voluntary actions taken to allow access to certain medicines and technologies relating to COVID-19.Footnote 53
There are important advantages to FCOI for firms adopting this model. Inventions are developed in collaboration. The eventual rightsholder is rewarded through licence fees, but licences are granted on fair terms to the firms involved and can therefore be used and developed more widely. This model mostly depends on the rightsholder. If their invention is not deemed to be a standard essential patent, they have a choice whether or not to licence voluntarily and set charges.Footnote 54 Access is restricted by IPR protection (and non-IPR barriers), similar to the closed innovation model, which impacts both the public(s) and re-users.
With other types of OI, for example, open source software, the source code is made accessible to all and it can be developed, improved and redistributed under the condition that any downstream innovations must also be open source. This innovation can be community-centred or individual, allowing for more re-users and public(s) to be considered, to some extent. Living labs are an example of an OI model that enables users to be more actively involved in the innovation process.Footnote 55
Although access remains somewhat restricted in OI given the continued use of IPR and/or the requirement of a licence to re-use subject-matter, this is unavoidable. Reducing all IPR-protection could result in downstream re-use that makes even minor improvements being re-subjected to IPR-protection. Power would shift to the new IPR owner, who would control the re-use of that improvement. This would also raise new IPR access barriers for all public(s) as the new owner would also control the development of further improvements.
These apparent benefits have led to the introduction of the above initiatives to assist with the COVID-19 pandemic. Because these pools and pledges can be fast-moving, individually tailored, and remove barriers to information, they can adapt to the pandemic in ways regulatory frameworks cannot. However, the ultimate impact of these responses upon access to vaccines, treatments and other inventions relevant to COVID-19 is yet to be seen.
Despite the benefits of FCOI, the resulting invention remains in-house and participants are chosen by the firm. CCOI shows significant promise; however, a question remains as to whether this type of OI is more suitable to certain industries where research costs are lower, for example, in computer software. Furthermore, although OI may extend access beyond what traditional IPR frameworks achieve, access is not guaranteed to all public(s). Individuals, communities and companies without the technological or manufacturing capacity and know-how will not be in a position to build upon these innovations.
With both FCOI and CCOI, access barriers remain. For the firm-centred approach, inventions remain restricted by patent protection and restrictive licence agreements. For the community-centred approach, inventions remain restricted by barriers related to the wealth gap.
Both the C-TAP and Open COVID Pledge are promising initiatives. Temporarily relinquishing IPR barriers could lead to more effective responses to the pandemic. However, the effectiveness of the Pool and Pledge will entirely depend on the pledgors and what they decide to pledge. Multiple countries, intergovernmental organisations and nongovernmental organisations have supported the WHO’s call for action, and an impressive line-up of technology, information and communication companies like Intel, IBM, and Microsoft have signed on.Footnote 56 Such broad and wide-ranging support is encouraging. However, most pharmaceutical companies have yet to sign on.Footnote 57 In the absence of key players’ support, the impact of these initiatives on the wider availability of COVID-19 pharmaceutical treatments and vaccines will be minimal. Such initiatives run the risk of being used as a mere public relations exercise. When entities with little IP in relevant fields or little potential profit to lose become pledgors, but those who hold key patents remain outside the initiative, the real-world impact is lessened.
These ad-hoc responses allow for flexibility but require further consideration to ensure responses are equitable and sustainable. Ellen ‘t Hoen questions how key technologies will be made available to the public(s) and stresses the “urgent need for global collaboration, access conditions on public funding and upfront agreements on access and affordability with those engaged in the development of new medical technologies.”Footnote 58 Of note, is that the majority of funding for COVID-19 research and innovation has been provided by government and charitable organisations. However, EU officials have stated that “pharmaceutical companies who will receive the funding will not be requested to forgo their intellectual property rights on the new vaccine and treatments, but they should commit to make them available worldwide at affordable prices.”Footnote 59 These requests for access at affordable prices are rarely followed up by enforceable conditions in funding however, and what is “affordable” is also not clearly specified, nor tailored to the realities of individual public(s).
The next step will be to ensure that all public(s) receive treatment in a fair and equitable manner. As of 8 July 2020, €15.9 billion has been raised by the Coronavirus Global Response Initiative for universal access to tests, treatments and vaccines, and this fund will go some way to providing for access.Footnote 60 The WHO (supported by organisations including the Bill & Melinda Gates Foundation, Gavi and CEPI) have also launched the Access to COVID-19 Tools (ACT) Accelerator to assist with development and equitable access to tests, treatments and vaccines.Footnote 61 The COVAX pillar is implementing a pooled procurement and equitable distribution mechanism for vaccines.Footnote 62 There is great political will to sustain public funding of treatment costs. Moreover, the size of the market for COVID-19 vaccines and treatments is likely to be so large that companies will be able to recover vast sums even if there is a tiny return on each individual item. This could make the pricing of individual items lower than for vaccines and treatments for other diseases. However, the overall cost of providing global access to vaccination will be enormous.
For high-income countries, access agreements to treatments and vaccines have been and will be relatively easily reached. The US acquired the remaining doses of remdesivir, a key treatment for COVID-19 in June 2020.Footnote 63 The US and UK entered into advanced purchase orders for vaccines which are currently being rolled out, prompting discussions on vaccine nationalism.Footnote 64 However, whether all public(s) in high-income countries will have equal access to the vaccine will depend on how individual governments finance the roll out.
Further, for public(s) in low/middle-income countries, access barriers such as availability and affordability will likely endure.Footnote 65 The vaccine is currently being administered across the world. However, at the time of writing, out of the 42 countries administering the vaccine, only six are middle-income countries; the vaccine has not been dispensed in any low-income country.Footnote 66 A request to waive key provisions of TRIPS and for the global sharing of technology and know-how was made by India and South Africa to the WTO.Footnote 67 If accepted it would allow a circumvention of key IPR and non-IPR access barriers. This would be especially important for low/middle-income countries. However, and despite the urgency of this situation, a decision has been delayed until 2021.Footnote 68
Pandemics are not the norm, and global access to treatments and vaccines for orphan diseases or diseases less common in high-income countries remain problematic. As we argue below, lessons learnt from the COVID-19 push for access must be applied to wider contexts.
Open Movements in Copyright for Education and Cultural Materials
Differences in patent and copyright entitlements naturally lead to differences in their respective open movements. As copyright arises automatically once an original work is expressed in a material form, individuals have more power to determine subsistence and access parameters.
Open Access Theory
In copyright law, the term “open access” is used broadly and inconsistently across science, culture, education, publishing, and technology fields. One reason these disparate understandings have emerged is due to scholarly publishing practices. This has particular consequences for scholarly research across all fields, given the publishing requirements in academia and size of the market. Publishing culture frames the act of making information viewable without a paywall or fee as satisfying OA standards. In this way, open is widely presented as synonymous with gratis access, with some models extending additional permissions for user activity already protected by copyright law, such as educational use.
By contrast, Peter Suber distinguishes between non-IPR and IPR access barriers via the terms gratis and libre.Footnote 69 As discussed in section 2, gratis access signals free of charge (non-IPR), while libre access is both free of charge and free of most copyright and licensing restrictions (non-IPR and IPR). “Open” access thus requires both gratis and libre access.Footnote 70 This aligns with international OA initiatives that qualify materials according to their commercial reusability.Footnote 71 Under such initiatives, only materials published under tools and licences that permit commercial re-use are open compliant.Footnote 72 This has an impact on re-users as only materials with libre access can be re-used without risk. However, not all re-users will benefit as other non-IPR barriers remain.
Gratis access is important to consider on its own when IPR does not arise. For example, basic research data, descriptive data, and faithful reproductions of public domain works may not qualify for copyright protection when the output does not satisfy the relevant threshold for protection. In theory, this eliminates the need for setting libre access parameters, while increasing the focus on gratis access via a commitment to voluntarily make the non-original materials publicly available for access and re-use.
OA extends to any original subject-matter that a copyright might apply to, such as: software (open source), data (open data) and other cultural and educational subject-matter (open educational resources). However, the inconsistent use of “open” introduces legal uncertainty in practice.
Open Access in Practice
Any elimination of a non-IPR barrier (e.g. paywall or subscription fee) to IPR-protected materials is commonly presented as “open” in and of itself. Within scholarly publishing, this has been driven by journal and repository practices via the adoption of green OA (i.e. the author deposits the article with repository or self-archives the work) and gold OA (the final version of the article is made available upon publication).Footnote 73 These delivery models are primarily gratis based, but some extend libre access.
During COVID-19, the general response has been to temporarily adopt limited gratis access models. More than 30 leading publishers, such as Oxford University Press, Elsevier, Wiley and Springer removed subscription-based restrictions for COVID-19 research, textbooks and other educational materials.Footnote 74 In addition, various subscription-based media publishers, such as the New York Times, Bloomberg, The Atlantic and Publico did the same for COVID-19 articles. In other cases, licensing organisations temporarily revised their educational licences to allow for higher copying thresholds.Footnote 75
At the same time, organisations, funders and grassroots initiatives were able to apply pressure to closed publishing models, sometimes by circumventing them entirely. One example includes a call from the National Science and Technology Advisers of a dozen countries for publishers to make COVID-19 research, and the supporting data, available through PubMed Central.Footnote 76 The Wellcome Trust issued a similar commitment and call for researchers, journals and funders, with more than 140 signatories.Footnote 77 A letter to WIPO “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” was signed by 32.5 million educators, 2.5 million libraries and archives, 45,000 museums, and 200 copyright scholars across 199 countries.Footnote 78 Other examples of public(s) support for reduced barriers include statements by copyright specialists to support maximising copyright limitations and exceptions by interpreting them to provide the necessary flexibility for online education in the current crisis,Footnote 79 as well as individual researchers widely publishing materials prior to (lengthy) peer review processes via platforms like SSRN, bioRxiv and Gisaid.Footnote 80
Galleries, Libraries, Archives and Museums (GLAMs) have taken similar blended approaches to OA. While some GLAMs release all non-original data gratis and libre (e.g. digital surrogates of public domain works, collections data, metadata, paradata, etc.) via open tools, others claim copyright and release data via open licences (CC BY, CC BY-SA).Footnote 81 The majority of GLAMs with digital collections online make them viewable gratis while reserving all rights through an (alleged) copyright claim or by releasing data via closed licences (e.g. Creative Commons NC and ND).Footnote 82 Data may be released gratis and/or libre via institutional websites, while platforms such as Wikimedia Commons and GitHub set libre conditions for any data uploads.
COVID-19 has so far had no measurable impact on GLAM OA policies. Nor has it stimulated any OA adoptions by non-open GLAM institutions despite the public(s) inability to physically access collections. This is likely because OA transitions are time and resource intensive, even under normal conditions. During indefinite closures, with staff working from home, priorities have shifted to cost reduction, increased digital engagement through social media, and digital collections management.Footnote 83 The current situation has exacerbated the digital divide for institutions without digital resources, expertise and presence.Footnote 84
OA adoptions may pause due to (misplaced) desires to retain commercial licensing benefits and generate revenue through online activities. Studies by UNESCO, ICOM and NEMO have detailed the dire economic impact of COVID-19 on an already financially-stressed sector.Footnote 85 At least one national museum has recalled its public domain policy in recent months, though reasons have been attributed to the general desire to license images again rather than as a direct response to COVID-19.Footnote 86 However, research shows the economic inefficiencies of maintaining licensing schemes, which often operate at a cost to cultural heritage institutions.Footnote 87
Lastly, Open Educational Resources (OER) initiatives across multiple fields and sectors have been designed with OA in mind. In November 2019, UNESCO adopted the UNESCO OER Recommendation as the first and only international standard-setting framework worldwide. The recommendation defines OER as learning, teaching and research materials that are marked as public domain or released under open-compliant licences that permit no-cost access, re-use, re-purpose, adaptation and redistribution (i.e. gratis and libre access).Footnote 88 This benefits many wider and immediate public(s) and re-users who can distribute OER materials to digitally-isolated publics.
GLAMs and OER have played an important role in home-schooling, distance learning, and public(s) engagement. Many GLAMs have hosted virtual exhibitions and lockdown tours, turning to social media to publish materials, engage audiences and participate in the #MuseumsFromHome initiative.Footnote 89 While this results in significant amounts of new IPR, there have been no corresponding pledges to release GLAM-generated IPR via open licences or tools for COVID-19 access, even temporarily.Footnote 90 By contrast, UNESCO launched the COVID-19 Global Education Coalition and issued a call to the global community via an open letter “to support the use of OER for sharing learning and knowledge openly worldwide, with a view to building more inclusive, sustainable and resilient Knowledge Societies.”Footnote 91 Indeed, UNESCO is supporting a number of OER initiatives in relation to COVID-19 to reduce IPR and non-IPR access barriers to a range of relevant materials, including for digitally-isolated publics.Footnote 92
One advantage of copyright is that all or select rights in the bundle may be waived (or at least not enforced). This has allowed open movements, like Creative Commons (CC), open GLAM and OER, to develop innovative IPR strategies to confront ongoing problems around the lack of cross-border exceptions and limitations for re-use, as well as the lack of legal clarity and consistency around originality standards.Footnote 93 For example, open licences and tools are legally interoperable, machine readable, and international. CC has even revised its tools to better convey the limitations of a public domain status and the express intention of enabling cross-border re-use: these include the Public Domain Mark 1.0 and the CC0 1.0 Universal Public Domain Dedication.
As implied, the CC0 tool is premised on a waiver, and thus the existence of a copyright. Technically, CC0 is therefore inappropriate for materials that fail to satisfy the originality standard. However, the tool’s legal code expressly considers users as central to the Public Domain Dedication relationship.Footnote 94 Although no rights may arise in the jurisdiction of origin (e.g. moral rights in the United States, which are very limited in scope), other jurisdictions might recognise rights in the materials (e.g. moral rights in France, which are broad and perpetual). In this sense, the Public Domain Mark is imperfect, because it is territorial to and dependent upon the public domain law in the jurisdiction of origin, which can differ from the re-use jurisdiction.Footnote 95 The CC0 1.0 Universal Public Domain Dedication thus provides cross-border re-users with legal certainty that even if rights arise, the rightsholder will refrain from enforcing them. The design of this IPR strategy accounts for different cross-border publics. Moreover, open licences enable rightsholders to reduce access barriers to some rights in the bundle while retaining others, such as CC BY (Attribution) and CC BY-SA (Attribution-ShareAlike). These licences are irrevocable, which provides greater legal certainty to downstream makers re-using IPR-protected materials in cross-border environments.
Open compliant materials (i.e. Public Domain, CC0, CC BY, CC BY-SA, etc) can be uploaded to platforms like Wikimedia Commons and Wikidata. Considering the infrastructure required to host online collections, Wikimedia platforms have helped reduce digital access barriers by allowing rightsholders and content providers to directly upload high-quality materials for access and re-use. Indeed, open movements have both fed and benefitted from these and similar platforms. Such websites have been a driver for OA via the upload conditions, providing more open compliant materials to the public for re-use. In return, OA has been a driver for knowledge production via the websites through which the open compliant materials are contributed.Footnote 96 Accordingly, public(s) and maker(s) are comprehensively built into the structure and IPR strategies of Wikimedia platforms like Wikipedia, which consistently falls in the 10 most visited websites in the world.Footnote 97
Unlike OI, with OA, concerns are particularly related to non-IPR barriers for the immediate public(s). IPR concerns relate to the technical and cross-border nature of digital dissemination.
Practical barriers arise when makers fail to embed digital materials with machine-readable interoperable rights statements. Once divorced from their origins, the open status of the materials will fail to follow their circulation online. Cautious downstream users may forgo re-use at the risk of legal liability, even when materials appear to be non-original (e.g. digital reproductions of public domain works).Footnote 98
Even when rights statements follow the materials, legal barriers can arise. IPR remains jurisdictional. CC licences and their application may change from one jurisdiction to the next depending on differences between moral rights, the term of copyright protection, and other national IPR law parameters. One significant barrier is the question of originality, which is legally required to enforce copyright entitlements. The instantaneous nature of copyright protection enables a system that allows the party who would benefit from an exclusive right to determine whether the work is sufficiently original in the first place. Any conflict or challenge to originality must be litigated in court. Taken together, these conditions produce disincentives to enforcement by the alleged rightsholders.Footnote 99
This occurs when makers claim copyright in non-original subject-matter and restrict access or re-use by reserving all rights or releasing materials through non-open compliant licences. Even when no rights are claimed, gratis access may be withheld. No positive or enforceable legal obligations exist to release non-original materials in the public interest.
The development divide and wealth gap raise the most significant access barriers. As noted above, finances are required to secure IPR access. The greater risk is overlooking the structural inequities that prevent both IPR and non-IPR access.Footnote 100 Access, participation and innovation with IPR-protected content in libre access, as envisioned by open movements, requires access to the necessary digital technologies, something unrelated to IPR. As a result, the enjoyment of libre access is being limited to privileged public(s), now in the position to gain further benefits.Footnote 101 OA cannot resolve these underlying barriers and may deepen the development divide and wealth gap,Footnote 102 especially during crises.Footnote 103
To this point, studies on the impact of COVID-19 on the heritage sector show GLAMs may shutter at an alarming rate. UNESCO estimates more than 10% of museums may never reopen.Footnote 104 In the United States, that number is as high as 30%.Footnote 105 The loss of institutional and individual knowledge will be immeasurable. For those that remain operational, there have been increased attempts to collect cultural engagement during COVID-19 on digital platforms. The growing digital divide means significant portions of the public are not only excluded from these archival collections, but also the knowledge generated around them due to their inability to both contribute and participate.Footnote 106
Open Movements as a Response to Access Barriers
Releasing IPR-protected materials under open licences and tools, in and of itself, neither results in the public(s) having access, nor satisfies wider public welfare goals as envisioned by IPR.
Open movements in patent and copyright law have clearly addressed a number of issues relating to access barriers. Yet, significant gaps remain for a number of publics. This is mainly due to the voluntary nature of open movements. For this reason, open movements cannot resolve every IPR barrier. This is particularly apparent during times of crises. During COVID-19, impressive initiatives have emerged, but they are participant-dependent and time-limited. The long-term impact of the virus must also be taken into account, which will outlast many of these initiatives. Finally, the existence of life-threatening diseases that affect public(s) in low/middle-income countries and communities and the likelihood of future pandemics and other crises must be considered.
The temporary status of COVID-19 open initiatives brings benefits and drawbacks. One benefit is that their temporary validity may attract participants who would not usually engage in open movements due to the irrevocable status of many tools and licences. Most if not all of the subject-matter being pledged was developed outside of OI strategies, but has now adopted those characteristics. This may incentivise companies to opt for OI in the future, given the mutual benefits to maker(s) and public(s) in terms of innovation efficiency.Footnote 107 However, temporary also means that these initiatives are narrowly defined and less sustainable. For example, as mentioned, the standard OCL expires one year after the end of the pandemic. IPR access barriers therefore remerge upon expiration. Even with non-IPR access, scholarly and media publishers are beginning to reintroduce paywalls to COVID-19 and educational materials.
While open movements are filling gaps in ways the IPR regime is unable, such strategies frame access for maker(s) and public(s) within the relevant materials and IPR area. This results in narrowly tailored IPR strategies for some immediate public(s) without non-IPR considerations for the wider public. Significant room remains to develop more equitable access strategies and obligations that are more appropriately designed and supported by IPR regimes, so long as the concerns noted above are confronted.
Open movements have somewhat addressed IPR access barriers, but a question remains as to why open movements were seen as necessary given the existence of traditional public interest legal doctrines.