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Should intellectual property laws upheld by the WTO be waived during a COVID-19 pandemic?
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I almost forgot to post this one, but it's better late than never, I guess. There have been endless allusions to the idea that, rich or poor, the countries of the world are all in this fight against COVID-19 together. However, when push comes to shove, it appears the reality of the matter is rather different: A few weeks ago, large developing countries put forth the idea at the WTO that intellectual property rights on COVID-19 medicines should be abrogated while a global pandemic is going on.
Perhaps unsurprisingly if regrettably, European and American countries indicated not being willing to go along. Since a consensus would have been required for an IP waiver on COVID-19 medicines to come into effect at the WTO, this effort was admittedly a long shot from the start:
Wealthy nations [...] reiterated their opposition to a proposal to
waive intellectual property rules for COVID-19 drugs, three trade
sources said, despite pressure to make an exception to improve access to
drugs for poorer countries. Supporters
of the waiver say existing intellectual property (IP) rules create
barriers on access to affordable medicines and vaccines and they want
restrictions to be eased, as they were during the AIDS epidemic.
But
opposition from the European Union, the United States and some other
wealthy nations at a meeting on Friday, means the proposal set to go
before the World Trade Organization’s (WTO) General Council next month
is likely to fail.
“If
rich countries prefer profits to life, they will kill it by tying it
down in technicalities.” said a delegate supporting the motion who
attended the closed-door meeting. The 164-member WTO body usually has to agree by consensus unless members agree to proceed to a vote, which is exceptional.
Populous developing countries India and later China pushed for lifting IP restrictions on COVID-19 medicines, although you have to wonder if they have competing commercial interests since they too have production capabilities in making these medicines should IP be waived. Then again, the current WTO head Ngozi Okonjo-Iweala (this article was written before she became its Director-General) also supported the initiative:
The proposal
was first raised by India and South Africa in October. Since then,
China, which has five COVID-19 vaccine candidates in late-stage trials,
has voiced its support, as have dozens of other WTO members, mostly from
developing countries.
The
World Health Organization says it supports tackling barriers to access
to COVID-19 medicines, as does Nigeria’s Ngozi Okonjo-Iweala, selected
by a panel to be the WTO’s next director-general.
You have to wonder though if some developing countries might want to declare medical emergencies that compel them to waive such IP on COVID-19 medicines under "compulsory licensing" procedures allowed by the WTO:
In 2001 — at the height of the AIDS crisis and under pressure from
governments whose citizens were dying because they could not afford
life-saving medicines — the World Trade Organization waded into the battle between intellectual property and public health. The resulting Doha Declaration ruled
that the Agreement on Trade-Related Aspects of Intellectual Property
Rights “should not prevent members from taking measures to protect
public health.”
It confirmed that governments retained several mechanisms for guaranteeing affordable access to medicines, including issuing compulsory licenses,
which allow them to use an invention without the patent holder’s
consent in extraordinary circumstances. This applies not only to new
drugs but also to existing medications whose patents have been extended
because pharmaceutical companies made minor changes to formulations or
discovered a new use for the medication.
Given the uncertainty
over access to treatments for COVID-19, several countries have been
laying the legislative groundwork to issue compulsory licenses for
products that patent holders refuse to make accessible.
I think developing countries will first observe whether they can avail of more COVID-19 medicines they believe they need under the COVAX initiative. If that avenue proves unfruitful, then don't be surprised to see "compulsory licensing" claims start appearing. Make no mistake that our world remains riven by North-South divides even amidst a global pandemic.
