The counterplan solves through public investment – takes out their industry deficit. <Court clog and the commons are also net benefits>

There is one last option to consider. It is now sufficiently clear that, at least in the IP feld, there is no grand unifed theory of Commons.151 However, all Commons—from public domain to open innovation instruments—have one constant feature which is inclusivity, and this should be taken into high consideration.152 It has been already ascertained that until now IP has always been focused on exclusivity, and not on the spaces of inclusivity that nonetheless have been present in the IP context in the form of public domain, exceptions/limitations and open innovation instruments as negative spaces. This perspective should change, in the sense that the private and public dichotomy, which has constituted the foundation of IP, should be replaced with a more complex combination of rights and privileges.153 This does not mean to abolish IP completely, but to achieve a harmonization between IP and the Commons. If this harmonization is to be achieved, the inclusivity feature should be conceived not only as a static aspect of Commons but also as something that is normatively relevant.154 Hence, inclusivity should have normative consequences. In particular, users of a work or invention, whether it is in the public domain, it constitutes an exception/limitation to copyright or patent law, or it is delivered through an open innovation instrument, should always be able to enforce and manage that Commons, specifically in the form of inclusivity.155 Therefore, the main idea proposed by Dusollier—and applied in this paper for the Covid-19 vaccine and other life-saving treatments—is that there should be an actual ‘inclusive right’ that would constitute an effective remedy or enforcement for the Commons, for the negative space. This right would be extremely useful for the public domain and exceptions/limitations that are almost impossible to implement, but also in the open innovation schemes where usually the users’ rights are enforceable only against the licensor or IP holder.156 When there is a right, a correspondent duty arises. Indeed, the correlative of the inclusivity right would be a duty on everyone else to not interfere with the inclusivity. Considering all these aspects, a sui generis inclusive right should have the following characteristics:

1. It shall never exclude another person enjoying the same inclusive right.

2. It shall preserve the resource and its collective use.

3. It must be enforced in order to defeat any claim of exclusivity that could hamper the common use.

4. Any court judgment that recognizes the inclusive right against some claim of exclusivity shall automatically benefit all individuals enjoying a similar inclusive right in the work or invention.

5. Any legal regime of inclusive rights would be assessed and implemented according to the particular situation concerned.157

Now, these features would be perfectly compatible if the Commons were the vaccine and other life-saving treatments against Covid-19. The inclusive right for this Commons would have as its normative object the distribution, management and administration of the vaccine and other life-saving treatments against Covid-19. In particular, this inclusive right would never be exercised in a way that can potentially exclude others that enjoy the same right. In contrast, it should be exercised in a way that preserve the Commons—identifed as the vaccine and other lifesaving treatments—and their collective use. Moreover, this right can be enforced in order to defeat any exclusivity that hampers the common use of the resources, not only when a court dispute arises, but in a comprehensive way. And, in relation to court judgments, these should serve not only as an example of enforcement of such Commons, but, most importantly, these decisions should automatically beneft all individuals enjoying a similar right in those resources, even if those individuals are not directly involved in the case at issue. Lastly, this inclusive right should be implemented according to the particular situation concerned. Instead of necessarily ex ante assigning a category of Commons, this feature confers certain elasticity to the type of Commons that is needed in a specific circumstance. For instance, at the beginning of an emergency situation such as a pandemic, the hypothetical scenario could see having technology and knowledge transfer of vaccines in the form of IP pledges and thus a less intrusive Commons. And later on, governments could decide to enact legislation that would attribute the status of excluded subject matter (public domain) or non-exclusivity of commercialization or production of the vaccine (exception to patentability). However, it is important to clarify that, whether the vaccine is recognized as a public domain, as an exception/limitation, or as an open innovation instrument, the theoretical and normative features of the inclusive right should never be derogated, by finding application in any circumstance. The resource should be regarded as any type of Commons, while the inclusive right would constitute a way to properly enforce that resource.