As most readers will be aware, the period of time between 2020-2021 has been marked with unprecedented disaster and suffering. The year 2020 started out with the Australian wildfires, which was followed by rising geo-political tensions, and then of course, COVID-19 spread rapidly across the globe.
As is the case with most epidemics/pandemics that have shaken the world over the past century, the first question that springs up in everyone’s mind is “when is the vaccine coming?”. Luckily for us, the World Health Organization (WHO) along with several countries and the world’s major pharmaceutical corporations were able to push out working vaccines fairly quickly. Once the vaccines were invented, concern then shifted to availability of said vaccines across the world. This was especially concerning in the poorer countries of the developing world. It goes without saying that the countries with the deepest pockets were able to stockpile enough vaccines for their populations while developing countries were not as fortunate.
One of the most conspicuous barriers of global availability of these vaccines were the patents that the manufacturers had over them, as is the case with any pharmaceutical product. Let’s take the example of the AstraZeneca Vaccine, which was developed by both AstraZeneca and Oxford University. Currently, it is one of the two major COVID vaccines available to the Indian public. In April 2020, Oxford University announced that it was “promising to donate the rights to its promising coronavirus vaccine to any drug maker.” However by August 2020, Oxford reneged on the promise and entered into an exclusive deal with drug maker AstraZeneca. This was especially concerning to many, considering that reportedly 97% of the research costs for the vaccine was publicly funded. This sparked a global debate on whether such deals were promoting profits and patent rights over global health and safety.
As we all know, the main function of Intellectual Property Rights (IPR) is to ensure that one gets to enjoy the fruits of their labor, i.e., to reward innovation through exclusive rights over such innovation. In our current economic structure, Intellectual Property Rights are seen as a necessary tool to encourage innovation by rewarding innovative work with the ability to exclusively generate income from such work. However, we have all seen on several occasions how IP rights and public interest can conflict with each other, such as the high prices of insulin and epinephrine-pens in the United States, both of which are life-saving medicines.
To alleviate the risk of such conflicts arising, most countries include certain provisions in their IP codes that can be used to override the IP rights of an individual/entity for public interest in certain circumstances. One such provision can be found in the Declaration on the TRIPS Agreement and Public Health, also known as the Doha Declaration, which was adopted by the WTO Ministerial Conference in 2001. It allowed for Member Countries to circumvent patent rights to enable better access to essential medicine. In support of this, Paragraph 4 of the Doha Declaration states that “We agree that the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members’ right to protect public health and, in particular, to promote access to medicines for all.”
In October 2020, India and South Africa submitted a proposal for a waiver from certain TRIPS provisions for the purpose of prevention, containment and treatment of COVID-19 to the Council for TRIPS. To further enable wider accessibility of Covid-19 vaccines and other related health products, the WHO launched the Covid-19 Technology Access Pool, also known as C-TAP. However, the initiative has reportedly not met expectations due to lack of engagement by the Pharmaceutical industry and Governments.
Opinion:
It goes without saying that the Covid-19 pandemic has caused great hardship, distress and suffering the world over, and that this period of our history has been a sobering wake-up call to all of us on how important public health is to ensure our prosperity as a species. Modern medicine may be the single most important component of the modern world as we know it today. It has helped us cure diseases which were considered inescapably fatal just decades before and the contributions of health workers and scientists can never be overstated. The challenge we face today is trying to ensure equitable access to modern medicine across the world, especially in developing nations. Governments must ensure that resources and expertise are shared promptly and effectively among each other during times of crisis such as this. The provisions in the Doha Declaration along with the C-TAP initiative and the Waiver proposal put forward by India and South Africa are a step in the right direction. Such initiatives can be seen to encourage a more formal and concrete framework of sharing information and life-saving technology between nations, instead of the tired and antiquated system of developing nations relying on the charity of their wealthier counterparts.
Intellectual property rights are widely accepted to be an effective tool in enabling innovation for the sake of human prosperity. But such benefits can only be realized if such rights are exercised in good faith, and if policy makers can prevent themselves chasing short-term gain at the expense of long-term sustainable and shared growth. In other words, those who exercise their IP rights and those that make the policy governing such rights must not lose sight of the ultimate goal, i.e. upholding the public interest.
Even with all the above provisions, along with the myriad number of local laws that try to safeguard and protect public health, it is ultimately up to the various governments of the world to be proactive in ensuring that a balance is struck between enabling pharmaceutical corporations to recoup research costs and the interests of the public at large.
This article has been authored by Philip Koshi.
