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transnational issues with copyright and related rights;12 compulsory
licensing and other patent issues for developing countries;13 and more.
Canada was among the world’s first movers to address patent
issues before problems arose by making changes to its compulsory
licensing law through its COVID-19 Emergency Response Act.14 The
government and anyone it authorizes can obtain a one-year licence
to make, sell, or use patented technologies necessary to address the
pandemic on a simple application to the patent office. While the pat-
ent owner must still be paid adequate remuneration, the emergency
approach avoids any need for negotiations over reasonable terms
prior to getting the licence.15 The approach is not perfect, however.
Among other things, the Act establishes a September 30, 2020, sunset
clause that will inevitably be too soon for the most promising technol-
ogy. Further, the one-year duration of licences is overly restrictive,
rendering it uneconomical to start production on generics. Canada’s
emergency licensing powers, in our view, ought to last as long as the
pandemic.
Canada’s compulsory licensing provisions are likely more use-
ful for existing devices or repurposed drugs than for new vaccines
or antivirals. That is because, for new inventions, it takes years for
patents to issue and liability for infringement only begins 18 months
after filing—after, we hope, the emergency ends. Even if there is some
liability for use of those inventions, this will likely represent only the
reasonable cost of a licence.
Nonetheless, giving government the power to issue compul-
sory licences without protracted negotiations over the terms of
access to vaccines, therapeutics, or other technologies was a neces-
sary measure.16 It reassures Canadians that patents will not impede
a rapid response to the pandemic, and it encourages innovators to be
12. Marketa Trimble, “COVID-19 and Transnational Issues in Copyright and
Related Rights” [4 May 2020] Intl Rev Intellectual Property & Competition L.
13. Krishna Ravi Srinivas, “Intellectual Property Rights and Innovation in the
Times of Corona Epidemic” (April 2020), online (pdf): Research and Information
System for Developing Countries <infojustice.org/wp-content/uploads/2020/04/
RaviSrinivas.pdf>.
14. Bill C-13, An Act respecting certain measures in response to COVID-19, 1st Sess,
43 Parl, 2020, cl 51 (as passed by the House of Commons 24 March 2020).
15. Patent Act, RSC 1985, c P-4, s 66.
16. Christian Clavette & Jeremy de Beer, “Patents Cannot Impede Canada’s
Response to COVID-19 Crisis” (6 April 2020), online: Centre for International
Governance Innovation <www.cigionline.org/articles/patents-cannot-impede-
canadas-response-covid-19-crisis>.
VULNERABLE
The Law, Policy and Ethics of COVID-19
- Title
- VULNERABLE
- Subtitle
- The Law, Policy and Ethics of COVID-19
- Authors
- Vanessa MacDonnell
- Jane Philpott
- Sophie Thériault
- Sridhar Venkatapuram
- Publisher
- Ottawa Press
- Date
- 2020
- Language
- English
- License
- CC BY-NC-ND 4.0
- ISBN
- 9780776636429
- Size
- 15.2 x 22.8 cm
- Pages
- 648
- Categories
- Coronavirus
- International