Role Of 'Intellectual Property' While Tackling The 'International Pandemic'

It has always been a challenge for Legislators, Courts and Law Enforcement Agencies alike to strike a right balance between the private right of IP and public rights at large. The conundrum continues and intensifies in times of pandemic, more so as the pandemic is on global level! A global approach beyond nations and economies is the need of the hour. As appropriately put under the at the World Economic Forum^[1]:

The COVID-19 pandemic has demonstrated that no institution or individual alone can address the economic, environmental, social and technological challenges of our complex, interdependent world. The pandemic has accelerated systemic changes that were apparent before its inception. The fault lines that emerged in 2020 now appear as critical crossroads in 2021. The time to rebuild trust and to make crucial choices is fast approaching as the need to reset priorities and the urgency to reform systems grow stronger around the world.

Threat other than the Virus? – What is termed widely as "vaccine nationalism" is concept where countries compete and push to get "first access to the vaccine", whereby richest nations are securing billions of doses of COVID-19 vaccines, while developing economies struggle to access supplies. According to the People's Vaccine Alliance^[2], rich nations are vaccinating one person every second while the majority of the poorest nations are yet to give a single dose.

As per an estimate giving by the Bill & Melinda Gates Foundation in May 2020, the cost of manufacturing and supplying low-income countries with vaccines would be around $25 billion.^[3] Further, under WHO, the ACT Accelerator has posted initial needs of US$ 38.1 billion to complete its work of delivering tests, treatments and vaccines around the world to treat the cause of the pandemic – severe COVID-19^[4]. Which is a huge figure looking at pledging of $2.4 billion^[5] to Gavi (the Vaccine Alliance) for COVAX AMC and $11 billion to the WHO's "ACT-Accelerator" Scheme.^[6]

Apart from the commercial issues, the "vaccine nationalism" and especially stark disparity in vaccination between poor (but densely populated nations) and rich nations ultimately impacts everyone as it hampers progress on tackling the pandemic. If some countries do not carry out enough vaccinations to build herd immunity within their populations, the pandemic will continue there and eventually impact everywhere else too. The more this virus infects people, there are more likelihood that further mutations will occur, and it is inevitable that an escape mutation will eventually surface. The new mutation is likely to become the dominant strain and will find its way back to the shores of rich 'vaccinated' nations, setting off a whole new set of infections in those vaccinated against only the old variants.^[7] Thus, Vaccine nationalism is incredibly short-sighted.

Why isn't the World making more vaccines? – One main reason is because the vaccines are protected by patents. The big Pharma companies stationed in rich nations have the exclusion of manufacturing and selling of vaccines. Any company wanting to manufacture the vaccines, must get a license from the vaccine patent holder which is very costly. Developing nations such as India and South Africa has proposed temporary waiver of patents, which means for a given time period big Pharma in the rich nations would have to allow other companies to use their formula for free.

Last year, India and South Africa proposed^[8] a temporary waiver of certain provisions of the TRIPS agreement for prevention, containment and treatment of COVID 19. Particularly, the request is to waiver from the implementation, application and enforcement of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement to help more countries to access vaccines. However, the European Union (EU) has primarily opposed the said proposition. Recently, the international experts and leaders have called upon EU members to reconsider their opposition to the TRIPS waiver. Last year, the World Health Organization also created a technology pool (C-Tap) to encourage nations and vaccine innovator companies to share vaccine formulae with poor countries. While many countries, including India agreed to the collaboration, Pfizer CEO stated that "At this point in time, I think it's nonsense, and… it's also dangerous," and AstraZeneca CEO maintained that intellectual property is "a fundamental part of our industry and if you don't protect IP, then essentially, there is no incentive for anybody to innovate."^[9]

The said proposal by India and South Africa is again in news because of Former President Mary Robinson and Nobel Laureate Mairead Corrigan Maguire call on President Biden to waive intellectual property rules for Covid-19 vaccines and requesting EU leaders to urgently reconsider their opposition to the TRIPS waiver. Further, Bernie Sanders and nine other Democratic senators urged President Joe Biden on Friday to back a temporary patent waiver for COVID-19 vaccines that would allow countries to manufacture treatments locally and accelerate the global vaccination effort.^[10]

The counter argument - From the perspective of US, EU, other rich nations and IP innovator companies, the opposition to waiver of TRIPS Agreement is based on the premise that IPRs are not an obstacle for addressing the pandemic and, if anything, IP motivates the innovator companies and nations to find the treatment and keep striving for better results. Outrightly waiving off the protection of IP over COVID vaccines would not only stifle the research, and it will also dampen motivation for further research and development. Further, the argument is made that waiving of IP rights will make it difficult for the innovator companies to monitor and ensure quality of the novel vaccines manufactured freely. Not to forget that waiving off IP protection and monetization will make it quite difficult for the Pharma companies to take huge investment risks and scientific efforts involved while performing numerous experiments ensuring that the vaccine is constantly improved upon, kept safe and responsive to all variations within human body. Pharma companies take enormous risks for developing these medicines, they need to be supported through strong IP protection, and thanks to the returns from such IP protections, that the Pharma companies will be ablet to take risks in future for better vaccines.

It is now to be seen that after so much of global turmoil and debate over Intellectual Property (IP) protections versus protection against International Pandemic (IP), and mounting open-letters, diplomatic pressure on rich nations and Pharma giants, how a middle path is taken with respect to the India's proposal to waiver the select Sections of TRIPS Agreement to expedite containment and treatment of COVID 19, globally!