By Emilia Sullivan

In his Easter address to an empty St Peter’s Basilica, Pope Francis urged the international community to commit to facilitating the distribution of Covid-19 vaccines to the poorest countries in the world.[1] As deadly waves continue to flow through less economically developed nations, governments are struggling to find life-saving resources, such as vaccines.

While the COVAX scheme has been implemented to bypass the effects of vaccine hoarding, it has been plagued by inequity, funding shortfalls and a severe supply crunch. The initiative intends to pool the global vaccine effort and ensure fairer distribution by which richer countries offset the costs of getting vaccines to poorer ones. COVAX hopes to distribute enough vaccines to protect at least 20% of the population in the 92 participating countries; however, many critics say it is not moving fast enough. As of April, only 0.3% of vaccines administered worldwide had gone to low-income countries.[2] At current global vaccination rates, it will take over four and a half years to reach herd immunity, yet wealthy nations are continuing to hoard vaccines and use them as market commodities.[3]

Intellectual Property and The TRIPS Agreement

Dialogue is growing for pharmaceutical companies to waive Covid-19 vaccine patents in light of the overwhelming outbreak surging through India. While US President Joe Biden has committed to a World Trade Organisation (WTO) proposal for the temporary loosening of patent restrictions, other wealthy countries have been actively blocking the move. The proposal has been spearheaded by India and South Africa, who have both been devastated by the virus, and aims to facilitate the manufacture of treatments locally and boost the global vaccination campaign. The provisions of the proposal suggest a waiver for all WTO members on the “implementation, application and enforcement of certain provisions of the TRIPS Agreement in relation to the prevention, containment or treatment of Covid-19.”[4] The TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement is a multilateral agreement on intellectual property rights such as copyright, industrial designs, patents and protection of undisclosed information or trade secrets.[5]

The Argument For and Against Waiving Patents

Despite growing support for the initiative, discussions have not gone beyond the exchange of clarifications and additional explanations, mainly due to powerhouses such as the UK, Canada, and the EU and its member states taking a firm stance against it.[6] Opponents of the proposal argue that diluting national and international intellectual property frameworks would be dangerous and counterproductive, with the Pharmaceutical Research and Manufacturers of America concerned that the waiver would “sow confusion between public and private partners, further weaken already strained supply chains and foster the proliferation of counterfeit vaccines.”[7] Western nations argue that the waiving of intellectual property rights would hinder research and innovation, and that the move would not result in a sudden surge of vaccine supply.[8] Senior Legal and Policy Advisor at Medecins sans Frontieres (MSF) Access Campaign, Yuanqiong Hu retorted at opponents of the implementation of TRIPS provisions, saying that “simply asking pharmaceutical corporations to voluntarily do the right thing will not get us anywhere”, and that it was “time for change, not charity”.[9] South Africa’s WTO counselor, Mustaqeem de Gama, told NPR that the potential repercussions of not passing the waiver would be “staggering”, not just on the amount of lives that would be lost, but on an economic level, too.[10]

The disconnect between citizens and their elected representatives is clear now more than ever, especially when it comes to consequential matters such as this life-saving patent waiver. According to research by the People’s Vaccine Alliance, 70% of people living in G7 (Group of 7) nations think that their governments should force big pharma to share their know-how. The study also found that a majority of those polled believe that pharmaceutical companies should be compensated fairly for developing vaccines, but should be barred from holding a monopoly on the jabs.[11] Despite widespread consensus among the public, many G7 governments are still refusing to waive intellectual property restrictions on Covid-19 vaccines.[12]

Vaccines as Market Commodities

In March, U.K. Prime Minister Boris Johnson cited “capitalism” and “greed” on the success of his country’s Covid-19 vaccine rollout. While Johnson backtracked his statements immediately, his supporters jumped to his defence with several competing explanations of varying plausibility, saying that it was a ‘joke’, and he was referring to the “profit motive driving companies to develop new products.”[13]

However, the “profit motive” that Johnson refers to has been expressed in different ways across economies, to the detriment of countries with little resources to leverage. Accusations have been circulating, at the denial of the two countries, that China and Russia are utilising a vaccine strategy in which they donate or sell vaccines to other countries in return for favours. This approach, commonly labelled ‘vaccine diplomacy’, has seen China donate a shipment of their Sinopharm jab to Algeria in exchange for the North African country to support China’s “core interests" and oppose interference in its "internal affairs".[14] Rhetoric like this has previously been used to defend against criticism over Hong Kong's autonomy and allegations of human rights abuses in Xinjiang. Moscow allegedly sold 5.2 million doses of their Sputnik V vaccine to Bolivia in order to spark dialogue about topics as varied as building a nuclear power plant to lithium mining and gas reserves in the country.[15] Despite sending hordes of vaccines abroad, Russia has only inoculated about 20% of its population, who are becoming increasingly skeptical about taking the shot.[16]

While the President of Serbia came out in January and said that it was “harder to get the vaccines than nuclear weapons,” before comparing the situation to the sinking of the Titanic, the Balkan nation has surged ahead of its neighbours in vaccines administered.[17] Serbia’s sudden efflux of vaccinations is a result of forming diplomatic ties with China and Russia in order to secure doses, to the point where they have more vaccines than people to vaccinate.[18] China and Russia’s loyalty to Serbia comes after President Aleksander Vucic used his country as a testing ground for the two vaccines prior to regulatory approval by the EU, a move which many lambasted as “gambling on the safety of citizens”.[19]

The Real Effects of Waiving Patents

Vaccine manufacturing is exacting and time-consuming, and health experts remain divided on whether waiving these patent rights would offer relief to developing countries as quickly as needed. Stanford Law professor Lisa Larrimore Ouellette has argued that pharmaceutical manufacturers that wish to produce a generic version of a vaccine would need to run its own clinical trials to demonstrate that its vaccine is safe and effective. Further, Oullette cited the lack of large-scale manufacturers that would be capable of conducting such trials.[20] Many have gone as far as to argue that such a move would harm the incentives of pharmaceutical companies to innovate while also not addressing the core issues that developing countries face when accessing vaccines.[21]

While there are many logistical hurdles to tackle, the consensus is clear - Western countries must assist poorer economies in vaccinating their populations. President Biden vowed that the US will be an “arsenal for fighting Covid-19”, as their stockpiles grow to have more supply than they have demand. [22] While the United States is one of the world’s major producers, it has exported only a few million shots so far. In comparison, China has shipped 217 million doses, the European Union 94 million, India 67 million, and Russia about 12 million.[23] President Biden has stated that by July 4, his goal is to have sent “about 10% of what we have to other nations.”[24] Duke University researchers have predicted that the United States may have at least 300 million excess doses as of the end of July, and have begun pushing for the U.S. government to play a bigger role in the facilitation of vaccines to poorer economies.[25] Biden has already taken three major steps to fuel global supply of vaccines. One was a partnership with the other ‘Quad nations’ - Australia, Japan and India - in order to boost vaccine manufacturing in India through 2022.[26]

Conclusion

The waiving of Covid-19 vaccine patents worldwide would allow for a wider amount of people to get the life-saving jab. While there are concerns about the capabilities of manufacturers in less economically developed countries, there are larger concerns about how fast the coronavirus is spreading through countries with inadequate resources to assist their populations. Initiatives like the COVAX scheme and the TRIPS proposal rely heavily on pledges and commitments that have yet to materialise, and realistically would be insufficient to provide the level of coverage needed to bring an end to the pandemic. If the situation stays stagnant, the interests and profits of the few will determine the fate of most. As the Director General of the World Health Organization, Dr Tedros Adhanom Ghebreyesus has said, we face the risk of a “catastrophic moral failure”.[27]

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured image source: Flickr

[1] Pope Francis, “Urbi et orbi message of his holiness Pope Francis” (4 April 2021), The Holy See <http://www.vatican.va/content/francesco/en/messages/urbi/documents/papa-francesco_20210404_urbi-et-orbi-pasqua.html.

[2] Katharina Buccholz, “Progress of COVAX Deliveries to the Top Beneficiaries” (May 4 2021), Statista https://www.statista.com/chart/24520/covid-19-vaccines-delivered-under-COVAX/.

[3] Katz, et al. “From Vaccine Nationalism to Vaccine Equity — Finding a Path Forward” (April 8 2021), The New England Journal of Medicine <https://www.nejm.org/doi/full/10.1056/NEJMp2103614>.

[4] Council for Trade-Related Aspects of Intellectual Property Rights, “Waiver From Certain Provisions Of The Trips Agreement For The Prevention, Containment And Treatment Of Covid-19” (2 October 2020), World Trade Organisation <https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True>.

[5] WTO, “Agreement on trade-related aspects of intellectual property rights” (15 April 1994), World Trade Organisation <https://www.wto.org/english/docs_e/legal_e/27-trips.pdf>.

[6] Sam Meredith, “Rich countries are refusing to waive the rights on Covid vaccines as global cases hit record level” (22 April 2021), CNBC < https://www.cnbc.com/2021/04/22/covid-rich-countries-are-refusing-to-waive-ip-rights-on-vaccines.html>.

[7] International Federation of Pharmaceutical Manufacturers and Associations, “Pharma delivers COVID-19 solutions, but calls for the dilution of intellectual property rights are counterproductive” (8 December 2020).

[8] Reuters Staff, “Rich, developing nations wrangle over COVID vaccine patents”, Reuters (March 11, 2021).

[9] MSF, “Countries obstructing COVID-19 patent waiver must allow negotiations to start” (9 March 2021), Medicins sans Frontieres <https://www.msf.org/countries-obstructing-covid-19-patent-waiver-must-allow-negotiations>.

[10] EIFL, “EIFL Supports WTO Trips Waiver For Covid-19” (30 March 2021), EIFL < https://www.eifl.net/news/eifl-supports-wto-trips-waiver-covid-19>.

[11] Amnesty International, “An average of 7 in 10 across G7 countries think their governments should force big pharma to share vaccine know-how” (5 May 2021), <https://www.amnesty.org/en/latest/news/2021/05/an-average-of-7-in-10-across-g7-countries-think-their-governments-should-force-big-pharma-to-share-vaccine-know-how/>.

[12] Dr Tedros Adhanom Ghebreyesus, “Waive Covid vaccine patents to put world on war footing” (March 7 2021), World Health Organisation <https://www.who.int/news-room/commentaries/detail/waive-covid-vaccine-patents-to-put-world-on-war-footing>.

[13] Lyse Comins, “COVID-19 Vaccines: Victory for public research, not ‘greed’ and ‘capitalism’” (6 March 2021), <https://www.thesouthafrican.com/news/covid-19-vaccines-victory-for-public-research-not-greed-and-capitalism/>.

[14] Zhao Lijian, “Foreign Ministry Spokesperson Zhao Lijian's Regular Press Conference” (March 17 2021), Ministry of Foreign Affairs of the People’s Republic of China <https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1861993.shtml>.

[15] The Economist, “Vaccine diplomacy boosts Russia’s and China’s global standing” (29 April 2021) <https://www.economist.com/graphic-detail/2021/04/29/vaccine-diplomacy-boosts-russias-and-chinas-global-standing>.

[16]David Wainer and Josh Wingrove, “Biden Gets U.S. Into Vaccine Diplomacy Race as Stockpiles Rise” (5 May 2021), Bloomberg <https://www.bloomberg.com/news/articles/2021-05-05/biden-gets-u-s-into-vaccine-diplomacy-race-as-stockpiles-rise>.

[17] WHO Regional Office For Europe, “Serbia’s COVID-19 vaccination campaign off to a strong start” (March 11 2021), World Health Organisation <https://www.euro.who.int/en/countries/serbia/news/news/2021/3/serbias-covid-19-vaccination-campaign-off-to-a-strong-start>.

[18]Mersiha Gadzo, “In Serbia, COVID vaccine supply outweighs demand amid mistrust” (6 April 2021) <https://www.aljazeera.com/news/2021/4/6/supply-of-covid-vaccines-outpaces-demand-amid-hesitancy-in-serbia>.

[19] Andrew Higgins “As Vaccinations Speed Along in Serbia, the Country Basks in the Glow of a Successful Campaign” (March 17 2021), New York Times <https://www.nytimes.com/2021/03/17/world/europe/as-vaccinations-speed-along-in-serbia-the-country-basks-in-the-glow-of-a-successful-campaign.html>.

[20] Sharon Driscoll, “Stanford’s Lisa Ouellette on Waiving COVID-19 Vaccine Patents” (4 May 2021), SLS Blogs <https://law.stanford.edu/2021/05/04/stanfords-lisa-ouellette-on-waiving-covid-19-vaccine-patents/>.

[21] Ben Ramalingam and Jaideep Prabhu, “Innovation, development and COVID-19: Challenges, opportunities and ways forward” (1 December 2020), OECD Policy Responses to Coronavirus (COVID-19) < https://www.oecd.org/coronavirus/policy-responses/innovation-development-and-covid-19-challenges-opportunities-and-ways-forward-0c976158/>.

[22] David Wainer and Josh Wingrove, “Biden Gets U.S. Into Vaccine Diplomacy Race as Stockpiles Rise” (5 May 2021), Bloomberg <https://www.bloomberg.com/news/articles/2021-05-05/biden-gets-u-s-into-vaccine-diplomacy-race-as-stockpiles-rise>.

[23] ECDC, “COVID-19 situation update worldwide, as of week 17” (6 May 2021),             

European Centre for Disease Prevention and Control <https://www.ecdc.europa.eu/en/geographical-distribution-2019-ncov-cases>.

[24] Above n 19.

[25]McLellan, Udayakumar, et al. “Reducing Global Covid Vaccine Shortages: New Research and Recommendations for US Leadership” (April 15 2021), Duke Global Health Innovation Centre <https://launchandscalefaster.org/sites/default/files/documents/US%20Leadership%20for%20Global%20Vaccines.pdf>.

[26] David Brunnstrom and Michael Martina, “Exclusive: Quad nations meeting to announce financing to boost India vaccine output - U.S. official” (March 10 2021), Reuters <https://www.reuters.com/article/us-health-coronavirus-vaccines-quad-excl-idUSKBN2B12QM>.

[27] WTO, “WHO Director-General's opening remarks at 148th session of the Executive Board” (18 January 2021) <https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-remarks-at-148th-session-of-the-executive-board>.