Contributed by James Pooley [email protected]
The World Trade Organization recently announced that the United States, European Union, India and South Africa have finalized a proposal to waive intellectual property protection for Covid-19 vaccines. Soon, the 164 member countries of the WTO will vote on whether to implement the proposed waiver.
The terms he describes would be revolutionary, that is, they would undermine the rules of intellectual property protection.
The foundation of this system is the Agreement on Trade-Related Aspects of Intellectual Property Rights, known as the TRIPS Agreement – which since 1995 has established explicit minimum standards that members of the OMC must comply with respect to mutual respect for patents, trade secrets, trademarks and copyrights.
All 164 members of the WTO have adopted the TRIPS Agreement.
Yet some nations in the developing world have long bristled at the TRIPS Agreement and sought to change it. This has been particularly true in the case of drugs. The TRIPS negotiations were underway at the time of the HIV/AIDS epidemic, and many poor countries rightly feared that they would not have access to affordable treatments as they developed.
But the TRIPS Agreement includes a provision that addresses this concern. When a country faces an “extreme emergency” – say, a public health crisis – and is unable to obtain the medicine it needs or negotiate a voluntary license with a patent holder, it can issue a “compulsory license” to allow local manufacturers to produce the drugs needed by its own population. But this safety valve does not invalidate the ownership of the patent holder, thus preserving the essence of intellectual property protection.
When the Covid-19 pandemic arrived in 2020, however, new concerns emerged about developing countries’ access to vaccines. India and South Africa then proposed a radical break with the TRIPS framework at the WTO. They called for a waiver of global intellectual property commitments on all health products and technologies related to the prevention, treatment or containment of Covid-19.
It was telling that the leaders here were India and South Africa, two hubs of global generic drug manufacturing, and that their demand was so broad. Rather than just addressing the public health emergency at hand, they saw an opportunity to set a precedent to bury the TRIPS Agreement in the future and acquire not only patents but also secrets. private sector business.
In short, it was naked commercial interests directed against the piracy of medical innovation, disguised as public health concerns.
It should be noted that two years after India and South Africa presented their proposal, it became a “solution” in search of a problem. The Serum Institute of India, the world’s largest vaccine maker, has stopped producing Covid-19 vaccines as demand plummets amid rising global supply. The Africa Centers for Disease Control and Prevention, meanwhile, has called on countries to suspend all vaccine donations to Africa because “the main challenge to vaccinating the continent is no longer the shortage of supplies, but logistical issues and vaccine hesitancy.” Indeed, by the end of 2022, the cumulative global production of Covid vaccines could reach 30 billion doses – or around four for every human on the planet.
Overcoming the hesitation and dispensing the doses remains a challenge – but not one that would be moved an inch by a TRIPS waiver. It’s time for the Biden administration to rethink its support for the idea and rein in its WTO negotiators.
James Pooley is the former Deputy Director General of the United Nations World Intellectual Property Organization and a Fellow of the Center for Intellectual Property Understanding. This piece was originally published in the Boston Herald.
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