A Threat to Global Innovation at the WTO
By James Pooley
The World Trade Organization recently announced that the United States, European Union, India, and South Africa had finalized a proposal to waive intellectual property protections for Covid-19 vaccines. Soon, all 164 WTO member nations will vote on whether to implement the proposed waiver.
The terms it outlines would be revolutionary -- that is, in undermining the rules for intellectual property protection.
The bedrock of this system is the Agreement on Trade-Related Aspects of Intellectual Property Rights, known as the TRIPS Agreement -- which since 1995 has established explicit minimum standards WTO members must meet in respecting one another's patents, trade secrets, trademarks, and copyrights.
All 164 WTO members have adopted the TRIPS Agreement.
Yet some nations in the developing world have long bristled at TRIPS and sought to modify it. This has especially been true in the case of medicines. The TRIPS negotiations were ongoing at the time of the HIV/AIDS epidemic, and many poor countries were understandably worried that they would have no affordable access to treatments as they developed.
But the TRIPS Agreement includes a provision that addresses this concern. When a country is facing an "extreme urgency" -- say, a public health crisis -- and is unable to secure the medicine it needs or negotiate a voluntary license with a patent holder, it can issue a "compulsory license" to authorize local manufacturers to produce the needed medicine for its own population. But this safety valve does not invalidate the ownership of the patent-holder -- thus preserving the core of IP protection.
When the Covid-19 pandemic arrived in 2020, however, new anxieties arose about the access of developing countries to the vaccines. India and South Africa then proposed a radical departure from the TRIPS framework at the WTO. They sought a waiver of global IP commitments on all health products and technologies related to the prevention, treatment, or containment of Covid-19.
It was telling that the leaders here were India and South Africa, two hubs of global generic drug manufacturing, and that their request was so broad. Rather than simply responding to the public health emergency at hand, they saw an opportunity to set a precedent for burying TRIPS in the future and acquiring not only patents but also private-sector trade secrets.
In short, it was naked commercial interest directed at piracy of medical innovation, dressed up as public health concerns.
It's noteworthy that two years after India and South Africa put their proposal forward, it's become a "solution" in search of a problem. The Serum Institute of India, the world's largest vaccine manufacturer, has stopped producing Covid-19 vaccines because demand is plummeting amid mounting global supplies. The Africa Centers for Disease Control and Prevention, meanwhile, has asked that countries halt all vaccine donations to Africa because "the primary challenge for vaccinating the continent is no longer supply shortages but logistics challenges and vaccine hesitancy." Indeed, by the end of 2022, the world's cumulative production of Covid vaccines may reach 30 billion doses -- or about four for every human on the planet.
Overcoming hesitancy and distributing doses remains a challenge -- but not one that would be budged an inch by a TRIPS waiver. It's time for the Biden administration to rethink its support for the idea and rein in its WTO negotiators.
James Pooley is former Deputy Director General of the United Nations' World Intellectual Property Organization and a member of the Center for Intellectual Property Understanding. This piece originally ran in the Boston Herald.
