The importance of access to intellectual property rights (IPR) protected subject-matter in two crucial areas – public health, and educational and cultural engagement – has been extensively demonstrated during the COVID-19 pandemic. Although they involve separate legal areas, patent and copyright, the common thread linking the two is intellectual property's difficult relationship with access in the public interest. This paper examines the tensions caused by access barriers, the tools used to reduce them and their effectiveness. It is clear that the access barriers magnified by COVID-19 are not restricted to narrow or specific contexts but are widespread. They are created by, and are a feature of, our existing IPR frameworks. Open movements provide limited remedies because they are not designed to, nor can adequately address the wide range of access barriers necessary to promote the public interest. Existing legislative mechanisms designed to remove access barriers similarly fail to effectively remedy access needs. These existing options are premised on the assumption that there is a singular “public” motivated by homogenous “interests”, which fails to reflect the plurality and cross-border reality of the public(s) interest(s) underpinning the welfare goals of IPR. We conclude that a systemic re-evaluation is required and call for positive and equitable legal measures protective of the public(s) interest(s) to be built within IPR frameworks that also address non-IPR barriers. The current pandemic and development of a “new normal” provides a crucial opportunity to comprehensively consider the public(s) interest(s), not just during a global health crisis, but on an ongoing basis.

In order to promote harmonisation in a more effective manner in the European patent system, it is argued that this should not solely be done through legislation, but through judicial dialogue and cooperation. Through this means of informal harmonisation, progress can be made case-by-case, rather than waiting for legislation to be agreed upon and entered into force. This is already happening to good effect, as displayed through a number of examples, including the most recent example of Actavis v. Eli Lilly [2017] UKSC 48 in the UK Supreme Court. It is proposed by this article that official lines of communication should be opened among all judiciaries and Boards in the European patent system to improve this practice. Judicial cooperation would also be useful to the Unified Patent Court, if it becomes operational. Opening official lines of communication would be an important step towards a further harmonised European patent system and would increase legal certainty in this area.

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