In April 2020, Oxford University promised to donate the rights to its coronavirus vaccine to any drug maker. By August it had signed an exclusive deal with AstraZeneca — on research reportedly 97% publicly funded. That reversal framed the entire debate about patents and vaccine access.
The context
The period from 2020 to 2021 was marked by unprecedented disruption. When a pandemic arrives, the first question is always when the vaccine is coming — and the WHO, several countries and the major pharmaceutical corporations delivered working vaccines remarkably quickly.
Concern then shifted to availability, particularly in the developing world. Countries with the deepest pockets stockpiled enough for their populations; developing countries were not as fortunate.
Among the most conspicuous barriers were the patents the manufacturers held.
The Oxford example
The AstraZeneca vaccine, developed with Oxford University, was one of two major vaccines available to the Indian public. In April 2020 Oxford announced it was promising to donate the rights to any drug maker. By August 2020 it had reneged, entering an exclusive deal with AstraZeneca.
What made that particularly contentious was the funding: reportedly 97% of the research costs were publicly funded. It sparked a global debate about whether such arrangements promoted profits and patent rights over global health and safety.
The tension in the system
The function of IP rights is to ensure innovators enjoy the fruits of their labour — rewarding innovation with exclusive rights, and with them the ability to generate income. In the current economic structure that is treated as necessary to encourage innovation.
But IP rights and public interest conflict, repeatedly. The high prices of insulin and epinephrine auto-injectors in the United States — both life-saving — illustrate the same problem outside any pandemic.
To mitigate this, most countries include provisions permitting IP rights to be overridden in the public interest. Internationally, the Doha Declaration on the TRIPS Agreement and Public Health, adopted by the WTO Ministerial Conference in 2001, allows member countries to circumvent patent rights to improve access to essential medicine. Paragraph 4 records the agreement that TRIPS does not and should not prevent members from taking measures to protect public health, and should be interpreted and implemented supportively of the right to promote access to medicines for all.
The waiver proposal
In October 2020, India and South Africa proposed a waiver from certain TRIPS provisions for the prevention, containment and treatment of COVID-19, submitted to the Council for TRIPS.
The WHO separately launched the COVID-19 Technology Access Pool (C-TAP) to enable wider access to vaccines and related health products. It did not meet expectations, for lack of engagement from the pharmaceutical industry and from governments.
What became of the waiver: after prolonged negotiation, the WTO adopted a narrowed decision in June 2022 — limited to vaccines, applying to eligible developing members, and essentially easing existing compulsory licensing procedures rather than waiving the TRIPS provisions the original proposal targeted. Extension to therapeutics and diagnostics was deferred and never agreed. By the time it was adopted, vaccine supply was no longer the binding constraint that manufacturing capacity and distribution had become.
The argument
The pandemic was a sobering reminder of how central public health is to collective prosperity. Modern medicine may be the single most important component of the world as we know it, curing diseases considered inescapably fatal decades ago.
The challenge is equitable access, particularly in developing nations. Governments must ensure resources and expertise are shared promptly in a crisis. The Doha Declaration, C-TAP and the waiver proposal all point that way — toward a formal framework for sharing life-saving technology rather than the antiquated arrangement of developing nations relying on the charity of wealthier counterparts.
IP rights are widely accepted as an effective tool for enabling innovation. Those benefits are realised only where the rights are exercised in good faith, and where policymakers avoid chasing short-term gain at the expense of long-term shared growth. Whoever exercises IP rights, and whoever makes the policy governing them, must not lose sight of the ultimate goal — the public interest.
Ultimately it falls to governments to be proactive in striking the balance between letting pharmaceutical corporations recoup research costs and protecting the interests of the public at large.
The takeaways
- Public funding does not follow into public access — 97% funded, exclusively licensed.
- The Doha Declaration already permitted measures to protect public health.
- The TRIPS waiver was narrowed to vaccines and adopted in June 2022, late.
- C-TAP failed for want of industry and government engagement.
Frequently asked questions
What was the TRIPS waiver proposal? A proposal by India and South Africa in October 2020 to waive certain TRIPS provisions for preventing, containing and treating COVID-19.
Was the waiver adopted? A narrowed version was adopted by the WTO in June 2022, limited to vaccines and easing compulsory licensing procedures rather than waiving the provisions targeted.
What does the Doha Declaration permit? It affirms that TRIPS should be interpreted and implemented supportively of members’ right to protect public health and promote access to medicines for all.
What was C-TAP? The WHO’s COVID-19 Technology Access Pool, intended to widen access to vaccines and health products, which underperformed for lack of industry and government participation.