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Explainer: Why is India calling for IP rules around Covid vaccines to be waived?

The World Trade Organization will meet again today to discuss the proposal.

A mass cremation of Covid-19 victims in New Delhi.
A mass cremation of Covid-19 victims in New Delhi.
Image: SIPA USA/PA Images

AS VIRUS CASES and death tolls linked to Covid-19 continue to spiral in the global South, particularly in India, the World Trade Organization will meet today basis to discuss a proposal to waive intellectual property (IP) rules around vaccines.

It was India along with South Africa and 50 other allies that first suggested the waiver idea last October.

So far, the proposal has been given short shrift.

Despite the backing of Amnesty, Human Rights Watch and other rights groups, European Union and wealthy countries like the United States, Britain, Canada, Australia and New Zealand have blocked the push by lower-income and developing nations.

But the catastrophic second wave of the virus currently engulfing India has given new impetus to the idea of temporarily doing away with the rules. This would, proponents of the idea believe, alleviate the scarcity of vaccines, a problem only exacerbated by wealthy countries in their scramble for jabs.

With the Biden administration reportedly weighing its options, let’s take a look at how it would work and the general debate around international IP protections.

What does India want?

Essentially, India and its allies want the rules to be waived on a temporary basis for all products and technology pertaining “to prevention, containment or treatment of Covid-19″.

That means masks, personal protective equipment, ventilators, diagnostic kits and, yes, vaccines.

The trouble, they said in their submission to the WTO last October, is that the crisis has caused “a swift increase in global demand” for equipment and treatments, “with many countries facing acute shortages, constraining the ability to effectively respond to the outbreak.”

As it relates to vaccines specifically, the issue is that wealthier countries have been able to place huge advanced orders with the small handful of drug companies with jabs in production.

The idea is that Big Pharma companies — Pfizer, Johnson & Johnson, Moderna etc — should share their knowledge with smaller companies in developing nations, allowing them to produce their own vaccines without fear of legal reprisal.

In a nutshell, it would mean a temporary suspension of certain provisions of the TRIPS agreement.

Ok, what’s TRIPS?

TRIPS stands for Trade-Related Aspects of Intellectual Property Rights.

Signed into effect in 1995, TRIPS effectively brought the world under one intellectual property regime, setting down detailed standards for the enforcement of copyrights and patents among the 164 members of the WTO that signed it.

But from the get-go, the question was: in whose interest is this agreement? Pharmaceutical companies for one.

In fact, in their 2004 book ‘Who Owns the Knowledge Economy?’, academics Peter Drahos and John Braithwaite detailed how Pfizer spearheaded the initial lobbying push in favour of TRIPS in the 1980s.

At the time, they wrote, the idea seemed like a pipe-dream but quite quickly, those “visionaries” at Pfizer managed to convince American, European and Japanese business and policymakers to back the deal.

At issue for Big Pharma was competition from a growing generic drugs industry in the ‘Asian Tiger’ economies. Having expanded production into the global South beginning in the 1950s, American drug companies now faced stiff opposition to their monopoly power with many countries using what are called ‘compulsory licensing’ agreements to bring down the price of essential drugs for their citizens.

What do the drug companies say?

Modern-day defenders of TRIPS say that the agreement contains ‘compulsory licencing’ mechanisms that allow the rules to be circumvented in case of emergency.

This, they argue, is a better mechanism for dealing with the current vaccine shortage than waiving the rules altogether.

It would allow governments to legally grant authorisation for the production of essential medicine to a third party without the patent holder’s permission. This would permit countries like India to begin to manufacture their own generic versions of the vaccines.

Europe’s biggest drug industry lobby group, the European Federation of Pharmaceutical Industries and Associations (EFPIA), outlined its arguments in a document submitted to the European Commission last September.

Among other things, it made the case that “a blunt tool” like a TRIPS waiver could have a “long term negative impact for medical innovation, including preparedness for future pandemics”.

Local production of vaccines “is not a panacea”, the EFPIA said, and “few countries have the local capacity to develop and manufacture copies of high quality and safe vaccines and complex therapeutics being developed”.

This argument was repeated by billionaire Microsoft founder Bill Gates earlier this week. 

Gates and company believe that COVAX — the global partnership between the European Commission, research groups and the pharmaceutical industry itself — is the best mechanism for delivering jabs to the developing world.

So what’s the case for a waiver?

For one, that COVAX is struggling.

The initiative has been beset by the same supply problems that India and other countries have had to suffer as a result of western vaccine nationalism and export bans as well as funding shortages. 

Some estimates suggest that COVAX might deliver just 20% of its targets this year.

As Rosamond Bennett of Christian Aid Ireland writes on The Journal, “The Economist estimates more than 85 poorer countries could be waiting until 2023 for widespread access to coronavirus vaccines. This imbalance is costing lives every single day.”

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Compulsory licencing under TRIPS is also inadequate, they argue.

As Indian economist Jayati Ghosh wrote recently, the issue is, “When the precise technology for producing the vaccine is not known, compulsory licencing works only when patent holders are willing to make available the technology to licenced producers.”

In other words, if the drug companies don’t want to play nice, they don’t have to — and so far, they haven’t wanted to.

Earlier this year, The Guardian reported that the Covid-19 Vaccine Technology Access Pool — set up last May by the World Health Organization as a forum to allow drug companies to share vaccine technology and data —  has been virtually unused.

As Nicole Lurie of Coalition for Epidemic Preparedness Initiatives argued recently, there is excess production capacity in the developing world that is currently going unused because of IP barriers.

“The challenge is,” she said, “that right now the companies that have got established vaccines are really hesitant to form partnerships, particularly with some developing country manufacturers.”

To put it another way, “The Big Pharma companies are happy to supply rich countries that are already competing for privileged access to the limited vaccine supply, and therefore are not really concerned about access to smaller or less well-endowed markets,” Ghosh wrote this week.

“A global waiver would change those incentives for companies.”

What about future vaccine innovation?

Human rights groups have hit out at the suggestion that a temporary waiver could upend the incentives for pharma companies.

“They produced these things quickly because billions in public money has been pumped into developing these vaccines,” Colm O’Gorman, Executive Director of Amnesty Ireland said this week.

“So, the business model — if that’s the rather vacuous argument that some people might want to make around standing up for the status quo — was already disrupted when we saw billions of public money being pumped into fast-tracking development.”

His remarks echoed those made by Human Rights Watch media director Andrew Stroehlein, who said last week the innovation argument is not only “ahistorical” it also borders on “extortion”.

“Our governments poured billions into developing vaccines,” Stroehlein tweeted.

“They could be thus incentivised again in future, obviously.”

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