This study provides an overview of the instruments and the policy levers that governments and public funding bodies can deploy to gain access to IP-protection technologies in case of health emergencies. It will not make value judgments about the tools available to governments. The typology of policy instruments covers, in a first category, statutory direct effect instruments such as compulsory licenses, obligations to grant licenses to the government, obligations to license the technology to third parties in certain limited situations, and emergency legislation. A second category includes statutory instruments that have an indirect or secondary effect, such as open science and open data policies. The third category is contract-based tools comprising voluntary licensing, advance market commitments (AMCs, also called advance purchase agreements or APAs in Europe) and research grant contracts.
The instruments governments can use to influence behavior can be applied simultaneously in many, though not all, situations. This study does not claim to provide an exhaustive overview of all instruments that can be used in the context of public funding but covers the most commonly available.
It concludes that there is an extensive catalog of instruments available. Many of those statutory instruments relating to non-voluntary licensing (whether compulsory licenses, government use or ex officio mandatory licenses, or emergency use licenses) do not differentiate between whether the IPRs for which licenses will be granted result from public funding or not. In Europe, the pandemic accelerated in-depth thinking and action on the tools governments should have at their disposal to secure access to IP-protected technologies, introducing obligations to license to governments who have provided public funding.