The drumbeat of those calling for a World Trade Organization (WTO) waiver on intellectual property protection (IPP) for pharmaceutical patents in the ongoing covid pandemic is getting louder
The drumbeat of those calling for a World Trade Organization (WTO) waiver on intellectual property protection (IPP) for pharmaceutical patents in the ongoing covid pandemic is getting louder. Last October, India and South Africa moved a motion at the WTO asking its council on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to provide such a waiver. While many developing countries have since supported the joint move, most advanced countries, home to the world’s major pharmaceutical companies, have opposed it.
Notably, during the conversation on 26 April between US President Joe Biden and Indian Prime Minister Narendra Modi, while the waiver was raised by the Indian side, it was omitted from the White House readout of the call, and a spokesperson was notably reticent on whether the US was going to ditch its opposition to the proposal. The president also faces pressure from the ‘progressive’ or left wing of his Democratic Party, which strongly supports the waiver initiative.
Not to be left on the sidelines, Nobel economist Joseph Stiglitz, along with activist Lori Wallach, penned an opinion piece in The Washington Post (‘Preserving intellectual property barriers to covid-19 vaccines is morally wrong and foolish’, 26 April), making a case for such a waiver, claiming that failing to support it, which they argue would impede the global vaccination drive, was “morally wrong and foolish".
Unfortunately, superficially appealing as it appears to be, the call for a waiver is, at best, a distraction and, at worst, a red herring in the current global public health debate. As noted by WTO secretary-general Ngozi Okonjo-Iweala, there is a legitimate “third way" that would allow wider manufacture of life-saving vaccines while preserving IPP for the inventors of those vaccines. This is through voluntary licensing arrangements between pharmaceutical companies and countries that wish to make vaccine doses for their own use. Indeed, and ironically, this is exactly what has occurred in India’s case, with a licensing agreement between AstraZeneca and Serum Institute of India that allows the latter to make vaccines for both domestic use and export, and also contribute doses to the Covid-19 Vaccines Global Access facility, better known as Covax.
The recent difficulties with this arrangement are a result of India diverting some doses intended for export (or for Covax) to its domestic vaccination drive, given the ferocious second wave of infections currently engulfing India. In no way does this reflect a failure of the underlying rationale for voluntary licensing arrangements. In simpler terms, even if India and other countries were granted a waiver today, vaccine production will not go up tomorrow. India’s limiting factors are a shortage of raw materials and low production capacity, neither of which would be cured with the supposed magic bullet of a WTO waiver.
What is more, India will soon also begin making other important global vaccines under similar licence arrangements, and a waiver would do nothing to speed up this process, the bottlenecks of which are, again, access to supplies and limited production capacity. A waiver can’t wish these away.
Even in the event that India, or any other developing country, needs to ramp up production more than is feasible via licences from global manufacturers, there is another alternative available, which is ‘compulsory licensing’, whereby, for the purpose of combating a health emergency such as the one caused by covid, a WTO member is allowed to override a patent and ‘license’ a domestic manufacturer to produce a global vaccine for its own domestic use. Such an approach would not permit the export of vaccine doses made under a compulsory licence, but then, in the case of a public health emergency, surely the most pressing objective is to produce doses for domestic use and not for export to other countries.
Indeed, India has been one of the pioneers of compulsory licensing for life-saving drugs, and there is no reason whatsoever that this approach should not be taken by any developing country, if, for some reason, global pharmaceutical companies are unwilling to play ball and license a life-saving vaccine for domestic manufacture and distribution in that nation.
Not only would a WTO waiver not do anything to address the real bottlenecks that constrain the global production and distribution of vaccines, it would also set a bad precedent, creating a serious moral hazard problem that could critically damage the incentive of global pharmaceutical companies to commit the vast resources needed in the inherently risky process of inventing life-saving drugs in future.
It is true that governments, including the US and others, have significantly subsidized or incentivized in other ways the research and development activities of private pharmaceutical companies that now hold patents for major covid vaccines. Yet, these governments required the ingenuity of private enterprise to invent these vaccines. If not, they could just as easily have committed resources to government labs to invent these vaccines. Instead, they chose to invest public resources in private enterprise, a type of public-private partnership that is common in basic research and not unique to the development of covid vaccines.
While it may seem appealing, a WTO waiver on intellectual property protection is an inappropriate priority. It’s a distraction from the heavy lifting needed to create the capacity to fight the scourge of covid.
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