Doses of the Johnson & Johnson Covid-19 vaccine jab. Picture: Ian Landsberg/African News Agency (ANA)
Doses of the Johnson & Johnson Covid-19 vaccine jab. Picture: Ian Landsberg/African News Agency (ANA)

Waiving intellectual property rights could help poor countries get vaccines

By The Washington Post Time of article published Feb 20, 2021

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Miriam Berger

As the coronavirus pandemic rages, World Trade Organization representatives have periodically gathered around a virtual table and clashed over how to more equitably increase global access to vaccines.

On one side are the United States and other mainly wealthy Western democracies, where the major pharmaceutical companies developing key vaccines and related medical technologies are based. They want to maintain the status quo, in which the trade secrets of their vaccines - i.e. intellectual property - remain in their hands to preserve profits and the incentive for future development.

On the other side are South Africa and India, leading the charge on behalf of the vast number of countries without any - or a limited supply of - vaccine doses and other equipment for fighting the virus. They argue that the rest of the world cannot keep waiting for the lifesaving shots, which Western countries have monopolized by buying up existing supplies and pre-purchasing future rounds.

Given the gravity of the global public health crisis, the latter camp wants to resort to an emergency waiver mechanism, whereby the intellectual property rights for making vaccines and related medical supplies would be temporarily suspended, which in theory would lead to production and distribution ramping up more equitably in factories worldwide.

It's a hyper-technical issue - turning on interpretation of TRIPS, the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights - and it's heavy in symbolism for developing countries increasingly alarmed by a race to vaccinate that is stacked against them.

In the immediate term, waiving intellectual property rights alone cannot fix the problem of vaccine inequities and shortages in the Southern Hemisphere. But, drawing on lessons learned during the HIV/AIDS crisis, experts said it could have far-reaching implications by preventing subsequent scarcities and sending a signal now about the imperative of collective action.

"Developing countries are already fed up with what they perceive as the selfishness of the West buying up all of the demand and [that] they've got to get to the back to the queue," said David Fidler, adjunct senior fellow for cybersecurity and global health at the Council on Foreign Relations. Now, he said, "they are having these sort of ridiculous conversations at the WTO about how to deal with this debacle for humanity."

In the meantime, he added, "inequitable vaccine access is just going to get worse."

When the WTO was formed in 1995, public health experts worried that many of the global agency's agreements would empower private companies and ultimately harm public health. Over time, various sides largely worked out their differences, Fidler said, except when it came to intellectual property, which he called a "a festering sore."

That sore proved lethal during the HIV/AIDS epidemic. By the 1990s, antiviral drugs were available to combat infections, but restrictions on production due to patent rules kept them far too expensive for most infected people in sub-Saharan Africa to access.

In 2001, a deal was finally reached. Called the Doha Declaration, it clarified "that the TRIPS Agreement does not and should not prevent member governments from acting to protect public health," according to the WTO. The amendments specified that countries could seek compulsory licensing - a way for a government to waive intellectual property rights without the patent owner's consent - in cases of national or other extreme emergencies. It also laid out mechanisms for the companies to still receive compensation.

The Doha Declaration helped lower the cost of lifesaving HIV/AIDS medications for the hardest-hit victims. Along with the U.S. program PEPFAR (the President's Emergency Plan for AIDS Relief), which was passed in 2003, these collective actions started to turn the tide on a treatable disease upending the lives of millions of people in less wealthy countries.

The WTO's action set a precedent, said Yuan Qiong Hu, legal adviser for the Doctors Without Borders Access Campaign, which is advocating for the WTO coronavirus waiver. But countries with the power to enact change acted too late for too many, dragging their feet on lowering prices.

"If they took action earlier, it could have been even better. We could have maybe saved more lives," she said. "It's purely a matter of political will to recognize the challenges."

The coronavirus pandemic, unlike the AIDs epidemic, is not centered in low-income countries. Rather, it's affecting all countries simultaneously scrambling for the same resources.

That's also why Mustaqeem De Gama, an intellectual property expert and South Africa's WTO representative, said it's time for the global trade agency to act to ensure that "inappropriate use of intellectual property" doesn't lead to "an artificial scarcity of supply."

TRIPS, he said, recognizes that every country has the right "to ensure that its citizens have access to necessary medicines, equipment and technology that will address covid-19." He said a WTO waiver would reinforce that principle and allow countries to prepare to kick-start their own production rather than having to wait until richer countries filled their vaccine orders first.

"The ability to pay shouldn't be the determinant for access," Hu said. WTO action instead could "allow countries to prepare to produce and share resources."

A spokesperson for the United States Trade Representative did not immediately respond to a request for comment.

In terms of official tallies of coronavirus infections and deaths, Africa overall has not been as hard hit as Europe and North America, though South Africa has been the exception as the continent's epicenter. But De Gama said that fact alone presents an incomplete picture of the pandemic's impact on people in countries without adequate medical resources or government relief during the pandemic. Now added to the list: unattainable coronavirus vaccine doses.

From a public health standpoint, De Gama said, this also poses a global danger.

"It's not the case where rich countries could insulate themselves by vaccinating the entire population and not care about what happens with the rest of the world," he said. The global threat is even greater, he added, given that "we now have variants, and these variants come about because of the transmission of the virus among millions of people."

Fidler, however, disagreed that intellectual property rights represent an immediate impediment to vaccine access. In the short term, he said, the issue is not simply that production is constrained because only certain companies, and under certain restrictions, can make vaccines. Rather, it's that Western countries have monopolized current and future supplies by buying up and pre-purchasing doses at rates other countries cannot afford.

But he said the WTO impasse remains worrying because it could push developing countries closer to the brink while further eroding U.S. standing. If the United States takes "a big and bold stand" - as it did with PEPFAR - "that could get us focused on the capabilities we need now and for the next crisis and restore some credibility" to U.S. pledges to help.

Instead, he said, Washington appears to be hemmed in by domestic pressures and sticking to an us-against-them stance in the WTO as the world faces "a colossal debacle for human health."

"It's like 1995 again," Fidler said, referring to the HIV/AIDS epidemic. "What is going on here?"

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