“No one is safe until everyone is safe.” The threat of breakthrough infections caused by future SARS-CoV-2 variants has highlighted the need to increase the global effort to scale up production of COVID-19 vaccines, treatments and diagnostics. Not only do global inequalities in vaccines persist in the least developed countries (LDCs) where, in February 2022, only 28% of the total population had received at least one injection, but so do inequalities in terms of vaccines. of diagnostic capacity, with LDCs accounting for only 1% of the total number of COVID-19 tests globally. Women in particular have suffered more social and economic fallout from the effects of the pandemic.
The proposed pandemic waiver on intellectual property rights under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO) is an important avenue in the scaling up of pharmaceuticals related to COVID-19. Considered one of the pillar treaties of the WTO, the TRIPS Agreement is a multilateral agreement aimed at protecting patents, copyrights and other intellectual property rights. These antiquated notions of intellectual property create artificial monopolies that precisely prevent the wider diffusion of innovation.
From June 12 to 17, 2022, the WTO held its 12th Ministerial Conference (MC12) in Geneva, Switzerland. After repeated extensions and working until dawn on June 17, WTO member delegations presented the “Geneva package” of ministerial results, including a decision on the TRIPS Agreement and a statement on the WTO’s response to COVID-19 and future pandemics. These texts, however, are so laden with problematic provisions that they offer little relief to a world beset by the woes of the pandemic.
Innovation? Misalignment of big pharma investments and public health priorities
A waiver of intellectual property rights relating to COVID-19 treatments, diagnostics and vaccines under the TRIPS Agreement was proposed in October 2020 by India and South Africa. That was long before the first COVID-19 vaccines even received emergency clearances. However, big pharma and their patron states in the United States and the European Union have consistently opposed a waiver on the grounds that such artificial monopolies (ironically promoted in a multilateral free trade framework like the WTO) encourage investment in pharmaceutical innovation and biomedical research. . They further argue that the existing rules of the TRIPS Agreement are sufficiently flexible.
This, of course, is simply untrue, if one is to take into consideration the politics and market failure that have precisely enabled the current pandemic. The reality is that the current pandemic has long been predicted and governments have offered funding in the direction of coronavirus research.
Public health priorities, such as infectious diseases from coronavirus or Ebola and the danger posed by future antibiotic-resistant bacteria, and big pharma investments were and continue to be misaligned as industry is primarily interested in “blockbuster drugs” treating chronic diseases such as cancer, diabetes, hypertension and hypercholesterolemia. These drugs are seen by pharmaceutical companies as consistently high and sustainable sources of revenue, paid for by patients over a long period of time and with high purchasing power. In contrast, investing in infectious diseases is considered risky. Epidemics often occur in places with low purchasing power and people become immune or die soon after being infected. Exploratory research in this area is therefore mainly initiated by research teams from universities and small startups, not Big Pharma.
When the pandemic arrived, Big Pharma again opportunistically jumped on unwitting governments by pouring billions of taxpayer dollars in the form of additional research funding and advance purchase agreements, which put the poorest countries at the back of the line, while letting industry set the rules. in the field of intellectual property. This effectively transfers investment risk to the public sector but shares none in terms of intellectual property rights.
New billionaires, millions of deaths
Moreover, the same countries and companies that are undermining the waiver proposal today opposed the use of public health flexibilities under the TRIPS Agreement (e.g. compulsory licensing) even before the coronavirus pandemic, threatening governments with “contentious terrorism” (as Nobel Prize-winning economist Joseph Stiglitz calls it) under bilateral investment agreements. A notorious case is that of the American pharmaceutical companies against South Africa during the HIV-AIDS epidemic, where the interests of monopoly capital endangered the lives of millions of Africans infected with the virus.
After several months of quadrilateral (US, EU, South Africa, India) negotiations and millions of deaths from COVID-19, a draft waiver text was released in March 2022. Civil society groups such as Médecins Sans Frontières quickly pointed out several shortcomings in the document, such as limiting the waiver to vaccines but not covering diagnoses and treatments, not removing other forms of intellectual property barriers (such as trade secrets and industrial designs) needed to expedite production, and add heavy TRIPS-plus “clarifications” such as Eligible members must list all covered patents (mRNA vaccines have about 280 components from 19 countries), among others.
A fake waiver
Thanks to the stubborn resistance of northern governments such as those of the UK, Switzerland, the US and the EU, most of the worrying provisions of their draft counter-proposal were incorporated into the decision on the TRIPS at the ministerial meeting last week. Following the draft counter-proposal, the ruling only covers patents for vaccines and excludes diagnostics and therapeutics, postponing discussion of extending coverage to six months from MC12. It relaxes export restrictions under Art. 31(f) of the TRIPS Agreement, but largely reaffirms existing flexibilities for compulsory licensing as well as maintaining TRIPS-plus “clarifications”.
The whole process wasn’t exactly transparent either. The majority of WTO members who supported the original waiver proposal had been bullied by rich countries into accepting the “waiver”; some of the delegates would have hadn’t even seen the final text before the adoption of the decision. This opaque and undemocratic decision-making process is not at all uncommon at the WTO. The infamous “green room” meetings (small groups of usually high-income countries and a few developing countries chosen by the WTO Secretariat) have been criticized by civil society as betraying the multilateral consensus decision-making process based on WTO rules.
The patent system as unsustainable production and consumption
Clearly, big pharma investments and public health priorities are seriously misaligned, with biomedical and pharmaceutical infectious disease research taking precedence over corporate profits. There is an urgent need to move away from the TRIPS regime as an “unsustainable system of production and consumption that violates human rights”.
Big Pharma and their developed country backers are not interested in saving lives and ending the pandemic as soon as possible, only in protecting their oligopolies and the massive profits of their executives and shareholders. The global intellectual property regime that the WTO has promoted under the TRIPS Agreement has hampered an effective response to the pandemic and allowed more time for vaccine-resistant variants to emerge. With the TRIPS waiver watered down, even northern countries and the WTO itself have recognized that the existing patent system for vital products is fundamentally broken and insufficient to deal with crises such as the coronavirus pandemic.
Instead of leaving public health to a handful of pharmaceutical companies, governments must move away from patents and consider other ways to encourage innovation for lifesaving products that do not rely on the creation of artificial monopolies. We must hold to account the governments and corporations that enabled the policy and market failure that exacerbated the pandemic. We must urge policy makers to take action to create a publicly funded international biomedical and pharmaceutical research infrastructure that can listen to science and put the lives and livelihoods of billions of people above the business profits. – Rappler.com
JC Navera is Policy Officer (Trade and Investment) for IBON International.