The TRIPS Waiver – An Alternative to Traditional IP Law in the time of Coronavirus

About the Author: Brandon Samples is a first year law student at American University- Washington College of Law. Brandon graduated from the University of South Carolina and hopes to work on international trade or immigration policy either through the government or an NGO after graduating law school.

 

While a handful of countries are currently mass-producing the COVID-19 vaccine in its many variations, the rest of the world is falling behind as production agreements linger and mobilization remains limited. Right now, the COVID-19 vaccines, and technology related to their production, are protected by a myriad of intellectual property rights. World Trade Organization (WTO) agreements mandate, among other things, that a patent owner has exclusive rights to make, use, sell, or allow imports of a patented product or the product resulting from a patented process.[1] In effect, this means that pharmaceutical companies that own patents related to COVID-19 vaccines have to negotiate licensing agreements with new manufacturers, domestically and internationally, before those manufacturers can start producing the vaccine.[2]

Currently, the 1995 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), dictates that all 164 WTO members provide a certain level of IP protections for copyrights and patents.[3] Specifically, Part II of the TRIPS agreement requires that WTO parties must provide a patent owner with at least twenty years of exclusive patent rights.[4] The negative effects of these international IP protections are more prevalent now than ever during a global health pandemic – high-income countries’ success in developing the COVID-19 vaccine variants means that residents of those countries have received about 90% of vaccines delivered as of March 21, 2021.[5] This is a major humanitarian issue that means populations outside of these select countries may have to wait much longer for a potentially life-saving vaccination.[6]

However, there remains an alternative to the vaccine’s lopsided production and its possible lingering effects on global wellbeing: a waiver to international IP protections narrowly tailored to COVID-19 prevention methods. The proposed Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment and Treatment of COVID-19 (TRIPS Waiver) was introduced by India and South Africa to the WTO in October, 2020.[7] The TRIPS Waiver specifies that certain provisions of the TRIPS Agreement that protect copyright, industrial designs, patents, and undisclosed information, would be waived for COVID-19 technology until the pandemic is over.[8] If the TRIPS Waiver went into effect, any facility could access technology and produce COVID-19 vaccines without having to wait for a licensing agreement, therefore eliminating the existing vaccine monopolies of large pharmaceutical corporations and allowing production of the vaccine to begin more quickly in parts of the world that need it most.[9] The TRIPS Waiver has widespread support – fifty-eight governments currently sponsor the Waiver and 100 countries support the Waiver overall.[10] Countries that do not support the TRIPS Waiver include, as of March 9th, the United States, Australia, Brazil, Canada, the EU, Japan, Norway, Switzerland, and the United Kingdom – primarily jurisdictions that have already secured the majority of available vaccines.[11]

Resistance to the TRIPS Waiver is alarming because, in addition to humanitarian health concerns, the global economy will remain stalled if the spread of COVID-19 is allowed to continue. The International Chamber of Commerce estimates that current “vaccine nationalism,” prioritizing production in countries that developed the vaccine, could cost the global economy as much as $9.2 trillion if other countries are not prioritized for vaccinations in the same manner.[12] Namely, in comparison to estimates for a world that is fully vaccinated, Norway, Switzerland, the United Kingdom, and the United States may lose up to 3.9% of their respective Gross Domestic Products if their “vaccine nationalism” continues. Likewise, a report by the National Bureau of Economic Research further estimates that, in an unevenly vaccinated world, up to 49% of global economic costs of the pandemic in 2021 would be borne by high-income countries even if they achieve universal vaccination domestically.[13]

President Biden has been reluctant to signal his support for the proposed TRIPS Waiver. However, more than thirty members of Congress have signed a letter calling on Biden for his support alongside a myriad of NGOs and nonprofits including Medicins san Frontieres, Oxfam, Human Rights Watch, and more.[14] Recent reports indicate that the White House may soon change its mind and decide to become a landmark supporter of the TRIPS Waiver.[15] Because COVID-19 does not discriminate based on wealth, geography, or IP protections, it is time to consider novel measures such as the TRIPS Waiver in order to combat the virus worldwide and ensure equal access to life-saving vaccines for everyone across the globe.

 

[1]  TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights pt. II, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.

[2]  MSF to wealthy countries: Don’t block and ruin the potential of a landmark waiver on monopolies during the pandemic, Medecins san Frontieres Access Campaign (Feb. 3, 2021), https://msfaccess.org/msf-wealthy-countries-dont-block-and-ruin-potential-landmark-waiver-monopolies-during-pandemic.

[3]Members and Observers, World Trade Organization, https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Mar. 28, 2021) (list of current observers to the WTO);  Enforcement of intellectual property rights, World Trade Organization, https://www.wto.org/english/tratop_e/trips_e/ipenforcement_e.htm (last visited Mar. 28, 2021) (clarifying enforcement of WTO agreements and explaining that all observer parties must follow them).

[4] TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights pt. II, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299.

[5] Selam Gebrekidan & Matt Apuzzo, Rich Countries Signed Away a Chance to Vaccinate the World, N.Y. Times (Mar. 21, 2021, updated Mar. 25, 2021), https://www.nytimes.com/2021/03/21/world/vaccine-patents-us-eu.html?action=click&module=Spotlight&pgtype=Homepage.

[6] MSF urges wealthy countries not to block COVID-19 patent waiver, Medecins san Frontieres (Feb. 3, 2021), https://www.msf.org/msf-urges-wealthy-countries-not-block-covid-19-patent-waiver.

[7] Council for Trade-Related Aspects of Intellectual Property Rights, India & South Africa – Proposed Waiver from Certain Provisions of the TRIPS Agreement for the Prevention, Containment, and Treatment of COVID-19, WTO Doc. IP/C/W/669 (Oct. 2, 2020), https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True.

[8] Id.

[9] MSF to wealthy countries: Don’t block and ruin the potential of a landmark waiver on monopolies during the pandemic, Medecins san Frontieres Access Campaign (Feb. 3, 2021), https://msfaccess.org/msf-wealthy-countries-dont-block-and-ruin-potential-landmark-waiver-monopolies-during-pandemic.

[10] Countries obstructing COVID-19 patent waiver must allow negotiations to start, Medecins sans Frontieres (Mar. 9, 2021), https://www.msf.org/countries-obstructing-covid-19-patent-waiver-must-allow-negotiations.

[11] Countries obstructing COVID-19 patent waiver must allow negotiations to start, Medecins sans Frontieres (Mar. 9, 2021).

[12] Study shows vaccine nationalism could cost rich countries US$4.5 trillion, International Chamber of Commerce (Jan. 25, 2021) https://iccwbo.org/media-wall/news-speeches/study-shows-vaccine-nationalism-could-cost-rich-countries-us4-5-trillion/.

[13] Cem Çakmaklı, Selva Demiralp, Ṣebnem Kalemli-Özcan, Sevcan Yeşiltaş & Muhammed A. Yıldırım, The Economic Case for Global Vaccinations: An Epidemiological Model with International Production Networks, National Bureau of Economic Research (Jan. 2021), https://www.nber.org/papers/w28395.

[14] Presser: 400+ US Civil Society Organizations Call on Pres. Biden to Stop Blocking COVID-19 WTO Waiver to Boost Vaccines, Treatments Worldwide, Public Citizen (Feb. 26, 2021), https://www.citizen.org/news/hundreds-of-prominent-us-civil-society-organizations-call-on-pres-biden-to-stop-blocking-covid-19-wto-waiver-to-boost-vaccines-treatments-worldwide/.

[15] Kayla Tausche & Jacob Pramuk, White House weighs temporarily lifting intellectual property sheild on Covid-19 vaccines, CNBC (Mar. 26, 2021) https://www.cnbc.com/2021/03/26/covid-vaccine-updates-white-house-mulls-lifting-intellectual-property-shield.html.

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