Restriction on innovation is a thinly-veiled argument posited for profiteering, especially when these essential therapeutic, diagnostic tools, vaccines and other medicinal products are limited in supply and cost substantially more owing to their intellectual property. A stark example of this is presented in the form of vaccine nationalism that has flourished recently
There is no contesting the fact that access to sufficient vaccines, medical supplies and technology is vital in the fight against COVID-19.
Issues of insufficient PPEs, masks, ventilators and other medical equipment, especially in developing countries, have made rounds since the start of the pandemic.
Adding to that recently is the question of vaccine accessibility and in quantities sufficient enough to inoculate populations of the developing world.
The timeframe and the rate at which those inoculations occur are also pivotal in seeing that newer and stronger variants of the virus do not emerge. Vaccine accessibility for all countries is, therefore, of equal importance to ensure that the world collectively enters the 'new normal'. In this light, the blockage of the proposal for a temporary waiver of certain Trade-Related Aspects of Intellectual Property Rights (TRIPS) obligations in the World Trade Organisation (WTO), in response to COVID-19, is a disappointment to say the least. The TRIPS Council on March 11, 2021, for the third time, failed to reach consensus on the joint proposal submitted by India and South Africa that was first tabled in October 2020. The proposal calls for a temporary waiver for all members of certain provisions of the TRIPS Agreement for the "prevention, containment or treatment" of COVID-19.
Citing reports, the proposal states that "IPRs (intellectual property rights)are hindering or potentially hindering timely provisioning of affordable medical products to the patients" and therefore "it is important to ensure that IPRs such as patents, industrial designs, copyright and protection of undisclosed information do not create barriers to the timely access to affordable medical products including vaccines and medicines...to combat COVID-19."
TRIPS, generally, protects the intellectual property (IP) of the producers and restricts unauthorised use, distribution or access.
Although foundational in recognising the contributions and work of the people engaged in bringing a product in its marketable form, at times like this, TRIPS provisions pose a substantial barrier by limiting the access to life saving vaccines, medicines, medical equipment and technology, especially for the world's poorest and vulnerable people.
Although recently the Biden-Harris Administration announced its support for waiving intellectual property protections for COVID-19 vaccines and stated that the US "will actively participate in textbased negotiations at the WTO", the lack of consensus among other member states has meant that the proposal has been blocked, as of now. Some of the world's richest countries have repeatedly blocked attempts at tabling the proposal in the TRIPS council meetings since the proposal was first introduced in October 2020. The major points of contention raised against the request are that the waivers would discourage current and future innovation and disregard the financial, technical investments made on these products.
The existing legal framework under the TRIPS Agreement, including the flexibilities affirmed under the Doha Declaration on the TRIPS Agreement and Public Health, are deemed to be sufficient by the opponents. Instead of TRIPS waiver, suggestions have been made in favour of voluntary licensing by IP holders, compulsory licensing by countries where the patents have been registered, and global vaccine sharing initiatives like COVAX.
The lack of technology, knowledge and human resource to produce these medical products in developing countries has been cited as a factor that would not bring any substantial change even if these waivers were made. This might hold true to a great extent, but with swift investments, rollout of technical assistance and addition of manufacturing bases across the developing world, production and manufacturing hindrances can be overcome.
Moreover, restriction on innovation is a thinly-veiled argument posited for profiteering, especially when these essential therapeutic, diagnostic tools, vaccines and other medicinal products are limited in supply and cost substantially more owing to their intellectual property. A stark example of this is presented in the form of vaccine nationalism that has flourished recently.
While rich and powerful countries have been hoarding vaccines, developing countries are often left on the fringes.
The WHO recently stated at the "Vaccine for All" special meeting that "of the 832 million vaccine doses administered, 82 per cent have gone to high or upper middle-income countries, while only 0.2 per cent have been sent to their low-income peers. In high-income countries alone, one in four people have received a vaccine, a ratio that drops precipitously to 1 in 500 in poorer countries."
Although there might be domestic political clout to be gained by favouring vaccine nationalism, a global problem like COVID demands a global solution, and increasing access is essential in the struggle against COVID. It is also undeniable that a handful of companies cannot produce enough medical products for the whole world. Monopolising technology and know-how in favour of some companies and businesses, especially during a pandemic, puts profit over people.
There is, therefore, an immediate need for the global north to recognise and accept the demands that are being made to waive the TRIPS restriction that are substantially endangering the south's efforts to properly contain COVID-19. Since the waivers proposed are temporary in nature and would be lifted after widespread vaccination is in place globally, lasting damage to the profits of mostly billion-dollar companies should not be put before the lives of millions of people in the developing world.
The next regular meeting of the TRIPS Council is scheduled for June 8-9, 2021. Since no one is safe until everyone is safe, it is important that the proposal be tabled and passed.
A version of this article appears in the print on May 19, 2021, of The Himalayan Times.
