Having trained as a microbiologist, microbes have a special place in my heart. One gram of feces contains an estimated 100 billion microbes, which is more than the total number of humans currently alive!
One fascinating microbe is influenza. Influenza mutates constantly — small mutations have caused and continue to cause waves of sickness almost every year. Efforts to mitigate this include the World Health Organization’s Global Influenza Surveillance & Response System (GISRS), which surveils the spread and impact of influenza and helps select suitable viruses for use in vaccines. If you have ever received a flu shot, your immune system carries the wonderful work product of GISRS.
Related to the GISRS is the Pandemic Influenza Preparedness (PIP) Framework, an influenza response approach that implements the global sharing of influenza viruses to support research and increase access to vaccines. This system has been suggested to illustrate a mode of “intellectual production without intellectual property” or “IP without IP.”
The new literature on “IP without IP” emerged because intellectual property scholars observed serious limits in using conventional intellectual property as an incentive for intellectual production. In some contexts, conventional intellectual property may not be necessary to achieve the intellectual production that we desire. Consider the copyleft movement and open-source software, which allow people to freely use and modify content, as long as they follow the same rules for sharing. In the stand-up comedy realm, comedians’ social norms offer significant protection and incentives to produce new content. The GISRS and its related PIP Framework’s sharing system is another example.
GISRS’ framework and operations have evolved to adapt to changing intellectual, technical and political environments, as seen after a notable event in Indonesia. In 2007, Indonesia asserted sovereignty over the avian influenza A (H5N1) viruses collected within its borders. Indonesia's decision was provoked by a series of perceived inequities, including the WHO's provision of an Indonesian virus strain to an Australian vaccine manufacturer that developed and patented a vaccine without Indonesia's consent. Indonesia's position, supported by many low- and middle-income countries, was that developing countries are expected to provide their sovereign genetic resources without any guarantee of fair and equitable access to the benefits associated with their use, like vaccines and antivirals.
In response to Indonesia’s demands, the PIP Framework was adopted to “recognize the sovereign right of States over their biological resources.” The PIP Framework establishes a reciprocal system whereby countries possessing pandemic influenza samples agree to share them with the World Health Organization’s laboratory network and research institutions. In exchange, companies and organizations that utilize these influenza samples to produce medical countermeasures such as vaccines, drugs and diagnostic reagents commit to providing benefits to affected countries in the case of a pandemic outbreak (e.g., providing access to a certain amount of vaccines and/or treatments and facilitating the production of vaccines in developing countries through technology transfer and licensing of any relevant IP). Here, contract law plays an important role in sustaining a mode of intellectual production based on sharing rather than exclusion. For decades, GISRS’ framework has produced data, analysis and inputs, all of which are critically important to vaccines and diagnostics. Because the existing technologies addressing the seasonal flu work well, there has not been a great incentive to produce new technologies that require patents.
Rather than exclusion, GISRS’s framework is oriented toward sharing and leverages contract law. Its mode of intellectual production shows a sophisticated commercialization ecosystem, where various legal tools are used to create push and pull incentives. IP without IP? Maybe, but I think that conventional intellectual property continues to be a crucial factor in driving vaccine and treatment innovation, encouraging market-driven investment, and serving as a defensive tool for patent owners against potential litigation.
