Renunciation of IPR in Covid Era: A Spurious “Good Idea”
Over the past four months, almost 850 million doses of the potential covid vaccines have been administered to people around the globe. To ensure that all the developed and developing countries across the globe can maintain and expand access to safe and effective COVID-19 vaccines, the governments must support the ongoing industry collaboration and oppose the counterproductive efforts of waiving Intellectual Property Rights. In this article, the author will try to shed some light on the background of the waiver regime followed by a scrutiny of the proposed IP waiver regime. Finally, the author will conclude by presenting his outlook on the instant situation.
In October 2020, India and South Africa requested the World Trade Organization(WTO) to dangle the protection protocols for the patents, copyrights, industrial designs and trade secrets to promote prevention, protection and containment of the novel coronavirus until the global vaccination has been completed or the global populace has developed immunity towards Covid-19. This request was further joined by several developing countries and a chorus of non-governmental organizations to ensure that all the people can have timely access to Covid-19 vaccines and unleash the poor countries worldwide to make their vaccines. This proposal was opposed by several developed nations like the United States of America(USA), the members of the European Union, Japan, Australia, Canada, etc. This debate is continued in the forum of WTO with no intelligible way forward.
Scope of the proposed IP waiver regime:-
Before jumping on what can and what cannot be achieved, we should take a skimpy look at what has been proposed. In a nutshell, India and South Africa proposed that all the members of WTO should be released from their obligations under the Trade-Related Aspects of Intellectual Property Rights(TRIPS) agreement to grant new patents, copyrights, trade secrets, regulatory data and business confidential information. This proposal also exonerates the member countries to enforce the already-existing protection regarding prevention and treatment of Covid-19.
This proposal empowers the member governments to implement the waiver in their unbridled discretion which means that any action taken by a member government under the umbrella under the proposed waiver regime will not be covered under the dispute settlement provisions of WTO. This type of situation can create conflict between the member of WTO because even the arbitrary decisions of governments cannot be reviewed or settled at any forum. The pragmatic mainstream issues aligned with this proposal are as follows:-
The waiver has to be implemented under the national laws of 164 member countries. No explanation is provided on how these countries would be expected to rapidly amend numerous statutes in their legal codes. Most of the countries that are supporting this proposal are not even a part of the TRIPS agreement. They want a waiver from the rules that don't even apply to them. Such a proposal will create a situation of pandemonium and will daunt the global patchwork of national laws even after the end of the Covid-19 pandemic.
The proposed waiver is drenched with vagueness and ambiguity as most of the rightsholders will fail to understand which products or services will lose IP protection in which country and for how long. As the proposed waiver cannot be time-limited, proprietary material or information cannot be un-disclosed once it has been made public, which means they will lose their protection forever.
Can the proposed waiver help in the fight against pandemics?
There are no instances in which the IPR has hindered the development and production of the Covid-19 vaccines. There have been a few instances of patent litigations, but none to block or delay Covid products. The proposed blanked suspension of IP rights is no quick fix for the pandemic, as it is unlikely to accelerate the delivery of Covid-19 vaccines. The supporters of the waiver proposal have been unable to document the existence of the idle global Covid-19 vaccine manufacturing capacity that could be unleashed by suspending IP rights. The current global need for non-Covid vaccines is estimated at 3.5-5.5 billion doses per year and those who talk about using existing capacity must realise that we cannot convert current manufacturing away from these critically important products as someone must keep making whooping cough, polio, MMR and other childhood vaccines against diseases that kill more children in the developing world that Covid ever will. The Developing Countries Vaccines Manufacturing Network(DCVMN), which is responsible for pushing vaccine production in poorer nations also agrees that a waiver of IP rights is not a potential solution to tackle the current problem.
Indeed, even the most IP-unfriendly non-governmental groups have come to comprehend that simply suspending IP rights won't mystically make more antibodies show up and have been changing and refining their stories and requests as work towards Covid-19 immunizations advanced. Assumptions that makers throughout the planet could "uninhibitedly" and freely make adaptions of existing Covid-19 antibodies inside the space of months are just preposterous. There is nothing of the sort as a "nonexclusive immunization" as some waiver advocates anticipate. Any subsequent items would contrast in quality, wellbeing, viability and won't be approvable without running new costly and tedious clinical preliminaries. This fiasco would be exacerbated by the redirection of the scant crude materials from going makers to unpracticed makers who are doing this interestingly, at lower proficiency, in any event at first, regularly in areas that need an organic assembling framework. Such stock redirections and shortcomings will just make it harder to keep up current worldwide immunization creation, and overall Covid antibody yield will decrease not develop.
Coronavirus Vaccinations- Statistics and Research, Ourworldindata, 25 Apr 2021, 11:59 AM, https://ourworldindata.org/covid-vaccinations.
Hans Sauer, Waiving IP rights during times of Covid: A false good idea, The IP watchdog, 25 Apr 2021, 11:59 AM, https://www.ipwatchdog.com/2021/04/19/waiving-ip-rights-during-times-of-covid-a-false-good-idea/id=132399/.
Waiver from certain provisions of TRIPS agreement for the prevention, containment and treatment of Covid-19, World Trade Organization, 25 Apr 2021, 11:59 AM, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True.
TRIPS agreement- Article 66, World Trade Organization, 25 Apr 2021, 11:59 AM, https://www.wto.org/english/res_e/publications_e/ai17_e/trips_art66_oth.pdf.
Rachel Thrasher, Why innovation would survive a Covid-19 waiver, The IP Watchdog, 25 Apr 2021, 11:59 AM, https://www.ipwatchdog.com/2021/03/24/innovation-survive-covid-19-trips-waiver/id=131194/.
John Miller, Explainer: Activists, drug groups waiver war over Covid-19 shot patients, Reuters, 25 Apr 2021, 11:59 AM, https://www.reuters.com/article/us-health-coronavirus-wto-vaccines-expla/explainer-activists-drug-groups-in-waiver-war-over-covid-19-shot-patents-idUSKBN2B2285.