About the Pledge
How does this effort enable an organization to contribute to the fight against COVID-19?
This site gives users two options for getting involved. First, an organization can “Support” the Open COVID Pledge. This is an expression of institutional support without any legal obligation. Second, an organization or individual can “Make the Pledge,” promising the public free use of its intellectual property (IP) for this purpose. To implement the pledge, the pledgor must publish a license consistent with the pledge. The license can be one of the suggested Open COVID Licenses or, alternatively, a custom license that is consistent with the Open COVID Pledge. Each of these options is described in greater detail below.
What is the Open COVID Pledge?
The Open COVID Pledge is a commitment by holders of intellectual property to share their intellectual property for the purposes of ending and mitigating the COVID-19 Pandemic.
What is the legal effect of a pledge?
A pledge is a promise that the IP owner makes to the public. In this case, the promise contains the grant of a license and some other things that are discussed below. When a pledge is made and publicized, the pledgor is telling others that they have permission to take the actions described in the pledge. Even though a written contract may not be signed, this promise has legal force, especially if others rely on it and start to make and sell their own products based on the pledgor’s IP.
Who can make the Open COVID Pledge?
Individuals, institutions, companies and other organizations who hold intellectual property rights can all make the pledge. For organizations, the pledgor must have the legal authority to commit the organization.
Is research covered by the Pledge?
Yes. All forms of research are covered.
How does an organization making the pledge benefit?
There are many benefits from making the pledge. First, we believe that everyone benefits from fighting the COVID-19 global pandemic, which is an issue for all humanity. Moreover, organizations that make the pledge will be viewed as leaders in this worthwhile cause, they will receive public recognition for their contributions, and will be viewed as helping their customers, employees, victims, families, the medical community and humanity.
How can I notify the Open COVID Pledge Coalition about my pledge and license?
Please send notifications of declarations of the Open COVID Pledge and license adoption, as well as any questions or other correspondence to firstname.lastname@example.org.
About the Open COVID Licenses
What are the Open COVID Licenses?
The Open COVID Licenses are suggested legal documents for implementing the Open COVID Pledge. They can be used “as is” by organizations or individuals wishing to make the Open COVID Pledge, or can be modified. Note, however, that every organization is responsible for its own legal review and authorization of any IP license that it grants, and the authors of the Open COVID License are not your lawyers.
Are there different types of Open COVID Licenses?
Yes. The Open COVID Coalition has published three standard licenses that anyone can adopt and use to share their intellectual property with the public for a limited time. We published the original Open COVID License (version 1.0) on March 31, 2020. That license covers both copyrights and patent rights, and was successfully adopted by Intel and Fabricatorz Foundation, for example. We call this original license OCL-PC version 1.0, (the “PC” designating patent rights and copyrights). It allows anyone to use the patent rights and copyrights of the pledgor for the purposes expressed in the license up until a year after the World Health Organization declares COVID-19 is no longer a pandemic by its standards.
What are the differences between the licenses? How do I know which one to choose?
That depends on whether you want to license both your patent rights and copyrights, or only your patent rights. Here’s a chart that explains the primary differences.
|OCL-PC 1.0||Patent rights and Copyrights||From December 1, 2019 until 1 year post pandemic, as declared by WHO||For the purpose of ending the COVID-19 Pandemic as defined by WHO, and minimizing the impact of the disease, including without limitation the diagnosis, prevention, containment, and treatment of the COVID-19 Pandemic|
|OCL-PC 1.1||Patent rights and Copyrights||From December 1, 2019 until the earlier of one year post pandemic, as declared by WHO, or January 1, 2023||For the purpose of diagnosing, preventing, containing, and treating COVID-19|
|OCL-P 1.1||Patent rights||From December 1, 2019 until the earlier of one year post pandemic, as declared by WHO, or January 1, 2023||For the purpose of diagnosing, preventing, containing, and treating COVID-19|
Which license to choose depends on what types of rights you wish to license, and for how long. If you want to license both your patent rights and your copyrights, you can choose between OCL-PC 1.0 and OCL-PC 1.1, the only material difference being that OCL-PC 1.1 has a fixed cut-off date in case the COVID-19 pandemic has not ended by January 1, 2023. If you want to license only your patent rights, then you can use OCL-P 1.1, which has the same fixed cut-off date as OCL-PC 1.1.
The purposes for which the public can use your rights are the same across all three licenses. While the wording of OCL-PC 1.0 is slightly different than the other two licenses, we refined the language when versioning and when creating OCL-P 1.1. Note that we never published a version 1.0 of the OCL-P.
What’s the difference between OCL-PC 1.0 and OCL-PC 1.1?
We created a new version of our original license to account for the likelihood that some adopters would want more certainty about when the license would end. For that reason, we introduced a final end date of January 1, 2023 in the 1.1 version in case the World Health Organization hasn’t declared an end to the pandemic by then. However, a licensor adopting version 1.1 can always extend the license voluntarily. Other small improvements were also made, though none of them are substantive. Those include reorganizing the license grant to separate the patent rights granted and the copyrights granted for clarity.
What if I want to pledge and license only my copyrights?
That’s fine! If you want to pledge and license only copyrights, then you can do so and remain compatible with the Open COVID Pledge by using the Creative Commons Attribution 4.0 international license (CC BY 4.0). Alternatively, you may choose to dedicate your copyrights permanently to the public domain using the Creative Commons CC0 Public Domain Dedication (CC0). Note, however, that if you use CC BY 4.0, you are licensing your copyrights for the full duration of applicable copyright law, which is not tied to a fixed date or event, nor is the license revocable; and if you use CC0 you are permanently and irrevocably dedicating your copyright to the public domain worldwide. For more information, see https://wiki.creativecommons.org/wiki/Considerations_for_licensors_and_licensees#Considerations_for_licensors.
About alternative licenses
When I take the pledge, can I use my own license instead?
Yes, you can customize the Open COVID Coalition’s licenses or use your own. However, to be compatible with the Open COVID Licenses, your license cannot be more restrictive than the Open COVID Licenses. This means that while you can grant more permissions than our licenses contain, you cannot impose more limitations. Check out our compatibility requirements.
More details about the Open COVID Licenses
What is an intellectual property license?
Under the laws of most countries, the owner of a patent or copyright (“intellectual property” or “IP”) has as a matter of patent rights, the exclusive right to make, use, sell, distribute, modify and otherwise exploit products, compounds and other things covered by that right, and as a matter of copyright, the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work. The owner can permit others to take these actions by granting them a license.
Do users have to sign the license?
No. The Open COVID Licenses are public licenses in which the owners of COVID-related IP make a unilateral pledge allowing others to use this IP for work targeted at ending and mitigating the COVID-19 pandemic. This saves weeks or months at a time when a single day’s delay in a cure, treatment or prevention could cost thousands of lives. If a pledgor has used an alternative license for intellectual property you want to use, you should check the license to see if a signature or notice of your use is required.
What rights are granted under the Open COVID License?
Under the Open COVID License, the IP owner grants others a license to make, use, sell and otherwise exploit any technologies that can be used in the fight against COVID-19. This includes, without limitation, diagnostics, vaccines, therapeutics and medical equipment.
Are there any charges for using the pledgor’s licensed IP?
No. Under the Open COVID License, the license is granted for free, with no financial charge whatsoever. All organizations that take the pledge and use their own license agreements must include a similar no-charge provision in their license agreements.
Is the pledgor required to interact with licensees in any way?
No. The Open COVID License is simply a grant of legal rights. It does not require any cooperation, training, technical assistance or consultation by the pledgor, nor does it require reporting or consultation by the licensee, though we encourage those taking advantage of the pledge to share how they are using the pledge if appropriate, in order to encourage others to join in. If a cooperative arrangement would benefit both parties, we encourage them to negotiate one separately, with compensation if desired.
Is the pledgor required to supply licensees with any materials?
No. The Open COVID Pledge and the Open COVID Licenses are simply a grant of legal rights. It does not require the pledgor to provide materials, cell lines, prototypes, designs, plans, data, trial results, software or anything else to a licensee. If the licensee wants any of these things, it should approach the pledgor separately to negotiate to acquire them.
How long do the Open COVID Licenses last?
All of the Open COVID Licenses (not necessarily any alternative licenses) are effective as of December 1, 2019 regardless of when it was first granted. The end depends on the particular license you choose. Refer to the chart above for details about each.
Why does the license start on December 1, 2019?
The licenses granted under the Open COVID Licenses are all effective as of December 1, 2019 to cover work that began when the COVID-19 crisis began to be recognized around the world.
What’s the benefit to providing a fixed end date in the licenses, which is potentially after the pandemic ends?
The duration is specified in order to allow licensees to provide certainty to users about when they need to stop using the licensed intellectual property and dispose of inventory. It also gives parties time to negotiate formal license arrangements (which might include payments).
What is regulatory exclusivity and why is it mentioned in the Open COVID Licenses?
In several countries, the first applicant to get regulatory approval for a new drug or vaccine is awarded a period of time during which it is the only authorized manufacturer of that drug or vaccine. These “market exclusivity” periods vary from a few months to several years, and are wholly independent of the IP protection for the approved drug or vaccine.
How is regulatory exclusivity handled under the Open COVID Licenses?
Under the Open COVID Licenses, the IP holder commits that it will not assert any market exclusivity to prevent others from exercising the IP rights granted under the license.
Is the licensee required to grant any rights back to the IP holder?
No. The license granted under the Open COVID Licenses is a one-way commitment from the pledgor to licensees. Licensees are not required to grant rights back to the pledgor. While this imbalance may seem unfair or inequitable in some ways, we believe that it will result in the greatest adoption of licenses by manufacturers and institutions around the world. And, of course, we encourage all holders of IP relating to COVID-19 to make the pledge as to their own IP.
What if the licensee sues the IP holder?
If a licensee threatens or sues the pledgor for infringing any IP relating to COVID-19, then the license will automatically be suspended until that threat or suit is withdrawn. This provision is intended to assure pledgors that they will be able to assert their IP defensively if they are attacked by another party.
Does the pledge guarantee that a licensee will be able to manufacture or sell any particular product?
No. Some products may be covered by IP that is held by multiple parties. In order to manufacture or sell such products, the manufacturer must ensure that it has obtained rights from all holders of IP. We recognize that it may be difficult to determine who owns all of these rights. But that is a problem that exceeds the scope of what the Open COVID License can accomplish except through identification of some pledgors and, if provided, the IP rights made subject to the pledge. Our hope, of course, is that all major holders of COVID-related IP will adopt the pledge, making the production of these technologies free from IP risk. However, this cannot be guaranteed.
What happens if a licensee exceeds the scope of the license that is granted?
If a licensee exceeds the scope of the license that is granted then it is infringing the relevant intellectual property and the IP holder is entitled to pursue all available legal remedies. Nothing in the Open COVID License prevents an IP holder from enforcing its IP rights against a party operating outside the scope of the license.
What if some of the IP that is licensed is found to be invalid?
The validity of patents is often challenged in litigation on various grounds. If IP is invalid, then the IP owner cannot restrict its use and the licensee doesn’t need to abide by the License conditions. In short, the invalidation of IP licensed under the Open COVID License should not matter to licensees or others, given that no payments are being made under the License. So this is largely irrelevant to the License.
Why doesn’t the Open COVID License permit sublicensing?
The Open COVID License does not permit sublicensing by the licensee because the license itself is open to any organization that wishes to benefit from it. It is preferable in this situation that all rights flow from the original IP holder, and a direct relationship between the IP holder and the user of the IP rights is necessary for purposes of enforcement, defensive suspension and other purposes.
Are IP rights other than patents and copyrights licensed under the Open COVID License?
Yes. The Open COVID License covers “patent, copyright and other intellectual and industrial property rights (other than trademarks and trade secrets)”. In this case, “other intellectual and industrial property rights” includes, without limitation, rights such as those arising under utility models, petty patents, invention registrations, design registrations, rights in data and databases, and moral rights.
Does the Open COVID Pledge or Open COVID Licenses protect IP owners from antitrust or competition law claims?
No. While the pledge and Open COVID Licenses are based on longstanding models that have withstood antitrust scrutiny around the world, it does not immunize other anticompetitive behavior by IP owners.
Where can I learn more about IP pledges?
We have collected sources that discuss the legal and business implications of IP pledges on our Reading and Resources page. These include discussions of how IP pledges have been used in other industries such as telecommunications, computing, clean tech and climate engineering.
Will the Open COVID Pledge or the Open COVID Licenses ever be changed?
The language of the pledge and licenses have been carefully crafted. But as both are used over time, it may become clear that modifications would increase their effectiveness. If either is modified in the future, the new version will be noted and dated, and prior versions will be archived and made publicly available in a clear way. Changes made after the date of your adoption will not apply to you unless you affirmatively choose to do so.