Deferring Intellectual Property Rights in Pandemic Times

In the intellectual property arena, policymakers and commentators have advanced different proposals to combat the COVID-19 pandemic. One pathbreaking proposal that has become highly controversial calls for a waiver of more than thirty provisions in the WTO TRIPS Agreement, covering copyrights, industrial designs, patents, and the protection of undisclosed information. Even after more than a year since the release of the initial proposal in October 2020, policymakers and commentators remain deeply divided. To help put the ongoing debate in the right perspective and to advance scholarship that helps address the present pandemic while preparing for future pandemics, this article draws on political scientist Robert Putnam's seminal work to explain why it is important to understand the international negotiation and domestic implementation of the waiver as a two-level game. The failure to win in any one of these levels will result in the non-implementation of the waiver in the relevant country—be it the United States or one of the instrument's proponents or co-sponsors. This article briefly recounts the strengths and weaknesses of the waiver proposal. It then identifies the negotiation and implementation challenges confronting efforts to operationalize the instrument in individual nations. Drawing on Putnam's work, this article calls into question the likelihood of quick worldwide implementation of the waiver to combat COVID-19. In view of these challenges, this article offers a novel alternative proposal that would facilitate the deferral of intellectual property rights in pandemic times. Aiming to "split the difference" between the proponents and opponents of the waiver, the proposal draws support from prior precedents involving temporal adjustments to intellectual property rights. The article further explores the strengths and limitations of the deferral proposal.