If there is a time since the great wars when universal values of solidarity and selfless cooperation were tested, it will be now. It will pivot on the issue of sharing the intellectual property rights for Covid-19 vaccines.
Pfizer has raised its vaccine sales forecast to USD 26 billion. The company is hopeful about a long term demand for Covid-19 vaccination (and potential for booster doses) worldwide.
This is also a reason for big pharma to oppose a move that seeks waiver of IP on Covid-19 technology lies.
The US has backed a move led by India, South Africa and over hundred other nations. It also includes the Office of the UNHCR. U.S. Trade Representative Katherine Tai said, “The administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for Covid-19 vaccines,“.
With this it has either opened floodgates of IP litigation by big pharma in the US or triggered chaos and discontent in the delicate TRIPS framework of the WTO or most likely, both.
Response from the industry and analysts on this issue seemed justified in their instinct to respect and protect IP and avoid setting this precedence. However, the explanation for why this may not be helpful in fighting the current pandemic was far from the truth.
There are more effective options than suspending patent protection argues an editorial in the FT. It goes on to suggest ‘more partnerships’ among global pharma companies and’sign more licensing deals with local producers elsewhere that include providing expert support.’
Joe Stiglitz and Lori Walalch write that preserving IP in this case is ‘morally wrong and foolish’. The morality chord is struck again by Ezekiel Emanuel and Joseph Nye arguing that exporting vaccines is a ‘moral duty’ if the US can ‘save people overseas by getting them vaccinated without sacrificing our own lives and well-being’. American health depends on exporting covid vaccines, they suggest.
Rahul Mattan presents a well-laid out case for suspending IPR and what it would need additionally from the legal perspective –
The TRIPs Agreement does permit countries to exercise special powers under extraordinary circumstances. All member countries are within their rights to compel the compulsory licensing of intellectual property if they feel this is required in order to deal with a public health emergency.
As useful as this option might seem, in the current circumstance, it will be of no practical benefit considering that the production mRNA vaccines also requires access to over 100 key components that are, themselves manufactured across over a dozen countries. In addition we will need access to various other non-chemical intellectual properties – such as algorithms, software and training materials – without which the vaccines cannot be usefully deployed.
The nature of debate around this issue has brought back corporate governance and shareholder capitalism in focus. Intellectual property rights for innovation and tech is absolutely necessary. This is not contested at all. What indeed is contested is whether there can be exceptional circumstances in which IP must be suspended or shared widely. If yes, what do those circumstances look like. Further, should corporations be made to comply or their primary responsibility to shareholders be honoured before the humanitarian need of the hour?