IPR waiver and poor countries
July 15, 2021
The developing and poor countries want to see their proactive role in this human tragedy. The adamant attitude of a few companies has every potential to unite the people of world against IPR. — Prof. MK Bhat
85% of world trade is enjoyed by only15% of the world population but the same cannot be possible in case of vaccination. World can bear income inequality but it cannot sustain with inadequate vaccination. Full vaccination in a few countries and no vaccination in the rest of the world is a threat to the whole world. Universal vaccination becomes even more important due to high speed with which this virus spreads, its changing mutation can break hell for humanity, if immunity is not developed in people. It becomes imperative for the world bodies to see how the whole mankind gets vaccinated. The demand for vaccine is quite high and producers can’t meet the demand on their own for many years. There is a dire need to involve more companies from developing world in the process to increase production and to reduce logistic and storage problems.
There is no doubt that companies invested on research to innovate the vaccine and WTO ensures patent to them for a fixed period of time. These pharma companies feel that they will lose their investment on research if they will give an easy access to others. They pursue business as usual approach for profits through rigid control on intellectual property rights. These rights allow organisations to stop others (for a fixed Period) for making use or selling their inventions without their permission. This keeps prices high and makes the monopoly of a few; if patent is removed multiple companies may get involved and can make world covid free in less time period. The pharma companies chose not to engage with WHO covid-19 technology access pool (C tap) initiative that aims to encourage voluntary contribution of IP, technologies and data to support the global sharing of covid-19 technologies.
India and South Africa have proposed WTO in October 2020, to waive intellectual property protection for a limited time on the products related for preventing, containing or treating Covid-19. They were supported by Kenya and Eswatini as co-sponsors, 100 countries supported the move immediately. It may be noted here that India has its domestic production yet it raised the issue on humanitarian bases for the countries who depend on others for vaccination. The issue raised pertains to several items for covid-19 including drugs, vaccines, protective gear, ventilators and diagnostic kits. The waiver should be applicable until the majority of world population gets vaccinated for immunity against covid-19.
The WTO makes Intellectual Property Right (IPR) inapplicable under certain abnormal condition. Article IX 3 and 4 of the Marrakesh agreement establishing WTO agreement affirms the exceptional circumstances as a waiver from TRIPS. The Doha declaration refers to compulsory licensing and the freedom to determine the grounds on which licence are granted, the right to determine what constitutes national emergency and circumstances of extreme urgency, and the freedom to establish the exhaustion of IP rights. TRIPS allows compulsory licensing which enables governments to licence the use of patented invention to third party or government agency without the consent of the patent holder. Article 31 of Doha agreement set forth a number of conditions for the grant of compulsory licence.
There is enough justification for applying IP waiver in the current pandemic as it has already claimed 3.2 million lives, infected more than 437 million people and devastated economies.WTO as the ruling authority needs to develop consensus among member countries on this issue.
The world opinion on waiver of IPR on covid-19 is divided at present, countries like USA, France, Russia and Newzeland support the move while as Germany and a few multinational organisations oppose the waiver because they believe that protection of intellectual property is a source to finance innovation and must remain so, the other bottleneck raised by them is that waving needs to be done with reference to other vaccines too. They apprehend that it may make companies to spend less on R&D. The other argument put forward is that developing countries do not have the necessary wherewithal to produce such vaccines, it may lose quality. Those opposing wavering of IPR see to their business alone while as India with its philosophy of “Vasudev Kutumbhkam” sees the welfare of humanity on earth.
The dissemination of vaccine needs to be done on humanitarian bases rather than on the economic strength of the nations but unluckily the rich countries have got lion’s share. There are countries where maximum people have been vaccinated and at the same time there are countries where vaccination has yet to start. Everyone’s life is equally important. As per Anlonio Guterrs, Secretary General of UN, richest countries get vaccinated thirty times faster than the lowest income countries.10 countries have received 75% of the vaccine administered so far, 0.3% has gone to low-income group and 1% to the African continent, and 100 countries have got no vaccination as yet. UK, USA and Israel have vaccinated majority of their population and life has started to become normal in these countries.
This has compelled various development and aid agencies to campaign against IPR on the plea that it will make vaccine affordable to the poor. Over 350 civil society organisations across the world have appealed to WTO member countries to support the proposal made by India and South Africa, in India Swadeshi Jagran Manch has launched nationwide campaign for waving of IPR on covid 19 vaccine and more than 20 lakh people are likely to sign the petition by June 13th (8 lakh people have already signed it). All the above mentioned organisations believe that there is a need of equal access to vaccine and technology for containing pandemic.
It is worthwhile to mention here that IPR removal without technology transfer is of little use especially for mRNA vaccine like Pfizer and Moderna because they require high scientific input. The technology transfer can be better through partnership or licence with the innovator to figure out how to develop the vaccine. This will help to arrange the necessary equipment, infrastructure, technical skills, technology software laboratories and raw materials. It may be noted that Astra Zeneca Covishield vaccine, the Johnson and Johnson, and Russian Sputnik have given voluntary licence to some companies around the world. The Bharat Biotech Covaxin developed by the Indian Medical Research has been licenced to three companies namely, Bharat immunologicals and biologicals corporation Ltd, Haffkine Biopharmaceutical corporation Ltd. and Indian immunologicals Ltd.
Universal vaccination is the only alternative at present for the current pandemics. Poor countries may have to wait upto 2026 to get vaccinated for herd immunity at the current speed. There is no doubt that Poverty can be no excuse for early vaccination, the governments of developed countries too are responsible for their people but the stockpiling of vaccines is definitely unacceptable. Developing countries are not having access to technologies on the one hand but on the other hand wealthy countries having 13 percent of the world population have locked at least half of the doses of world five leading potential vaccines.
The countries are heading towards consensus as world majority cannot be hostage to a few companies. The time has come when things need to be settled through international organisations in an amicable manner. It is a chance for international organisations to prove their credibility. The developing and poor countries want to see their proactive role in this human tragedy. The adamant attitude of a few companies has every potential to unite the people of world against IPR.
Prof. M. K. Bhat: Professor (M.A.I.T), Guru Gobind Singh Indraprastha University, Delhi