Page - 582 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE582 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>.