Amidst the COVID-19 pandemic, the universal call of the hour has been for access to and the production of efficacious vaccines, essential equipment such as ventilators, and technology such as copyright-protected virus-tracing software. The race to produce such vaccines, equipment, and technology has brought light to tensions between holistic public health interests and intellectual property rights (IPRs).
Public health as a phrase inherently implies that health is a public good that may be provided via collective action and the initiative of social and policy planners. IPRs, on the other hand, have a distinctly private flavour as they act as an innovator-friendly solution to problems posed by presenting innovation exclusively as a public good.
IPRs protect innovators by conferring upon them proprietary rights so that they are free to obtain the value of their innovations via private market transactions. Public health and IPRs are domains that often overlap with each other when public health goals might be advanced by the use of innovations that are protected by an IPR.
Private sector innovators have successfully acquired provisions for exclusionary rights for new healthcare products in many trade agreements. While the monopolies offered by such rights can be seen as necessary to incentivise pharmaceutical companies to develop effective drugs by investing resources, these rights leave gaps in public health innovation incentives. Resultantly, other measures are required to meet the public health needs of vaccines, and medical equipment and technology. Exclusive rights also allow innovators to charge high prices that threaten to limit access to potentially life-saving innovations. The freedom to do so is potentially detrimental to public health. While IPRs do eventually expire, the social repercussions of delayed access to medical innovations can be damaging.
Recognising these threats, companies have been urged to undertake voluntary pledges to make their intellectual property available for usage to fight against the pandemic. Additionally, the World Health Organisation (WHO) has set up a voluntary pool that would collect patents and other IPRs that can be shared for manufacturing vaccines to combat COVID-19.
However, developing countries are pushing for more robust measures to be put into place. On 02 October 2020, India and South Africa requested the World Trade Organisation (WTO) to waiver certain sections in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). If the waiver passes, countries may choose to either not grant or not enforce patents and other IPRs related to measures against COVID-19 inclusive of drugs, vaccines, diagnostics and other technologies. The waiver has been requested to be in place for the pandemic’s duration until global herd immunity is achieved.
Thus far, 90 countries have supported the TRIPS agreement waiver proposal at the WTO to. The waiver is a popular sentiment amongst developing countries. However, the US, Europe and other developed blocs that want to protect their pharmaceutical industries and innovation in the pharmaceutical sector still oppose the waiver. Other opponents to the waiver argue that the TRIPS agreement already contains flexibilities, including compulsory licenses and the freedom to use parallel imports. However, these flexibilities are not always easy to use. The WTO is still yet to reach a decision even after their most recent discussion regarding the waiver, which occurred earlier this month.
While the waiver can help facilitate the free dissemination of knowledge, developing nations should not lose focus on improving their healthcare provisions and infrastructure to best leverage this knowledge. It is also yet to be seen how this waiver will interact with agreements already in place, such as bilateral treaties between nations and free trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. Primarily, many of these agreements have clauses that prevent patent linkage. Under these provisions, national regulatory authorities are disallowed from registering and allowing the sale of generics if the active medicine is still protected as a patent.
India remains ever hopeful that the global pharmaceutical industry will support its waiver proposal. However, there are powerful advocates for a more restricted approach. British Prime Minister Boris Johnson and French President Emmanuel Macron have recently pushed for plans to share vaccines. Along the same lines, WHO, the Coalition for Epidemic Preparedness Innovations, and Gavi, the Vaccine Alliance have developed the COVAX program in partnership with institutes such as UNICEF and the World Bank to ensure the equitable global distribution of COVID-19 vaccines. The COVAX scheme will be the largest vaccine procurement and supply operation to date.
Like Janus, there are two distinct facets to IPRs, namely, a social aspect and a commercial aspect. Resolving the two has never been an easy task. This conflict is reminiscent of the affront in 1998 when pharmaceutical companies brought legal proceedings against the South African government to stop it from introducing laws that would make HIV and AIDS drugs more affordable. The pharmaceutical companies claimed that if such laws were passed, their patent protection would be severely negatively impacted. In 1998, the pharmaceutical companies abandoned their case. It remains to be seen how the same conflict will be resolved in 2021 in the fight against COVID-19, where the death toll is still increasing, and new variants of the virus are cropping up.
Pressing public health concerns can provide governments with a strong reason for rethinking exclusionary rights provided to new medical discoveries. It will be interesting to see if this sparks a broader conversation about whether current intellectual property laws and policies should be rethought and remodelled.