In a world of increasing fragmentation and polarisation, the 78th World Health Assembly, starting Monday, will present itself as a beacon of hope with the adoption of the Pandemic Agreement. It will be a defining moment, as the World Health Organization (WHO) calls it, where the world leaders recognise that in a highly interconnected world, we stand to benefit when collaboration and equity are valued.
The WHO Pandemic Agreement, which was finalised in Geneva in April and will be adopted at the World Health Assembly, incorporates the much-contested idea of technology sharing and the role played by intellectual property (IP) rights during a global health crisis, such as the COVID-19 pandemic. The draft states that parties to the agreement recognise that while intellectual property rights are important for the development of new medical products, they should not prevent member states from taking measures to protect public health. The revised draft also addressed concerns regarding the impact of intellectual property rights on the prices of medical products.
Under Article 11 regarding transfer of technology and know-how, there is mention of making available “licences, on a non-exclusive, worldwide and transparent basis and for the benefit of developing countries…” and “provide, within its capabilities, support for capacity-building for the transfer of technology and know-how for pandemic-related products".
The use of intellectual property (IP) rights as a tool to block vaccines and drugs, in particular, came under the scanner during the COVID-19 pandemic in 2020. India and South Africa sought a temporary waiver on patents for COVID-19-related medical products, including the mRNA vaccines that were being developed in Western nations like the United States. The plea to the World Trade Organization (WTO), which deals with IP rights under Trade-Related Aspects of Intellectual Property (TRIPS), faced intense resistance from wealthier countries, as well as the pharmaceutical industry.
High-income Countries, like the US, the UK, the EU, Norway, and Canada, argued that IP rights played a crucial role in advancing innovation in science and its waiver was not required for fair distribution during the pandemic as other means like voluntary licensing, technology transfer arrangements, and the donor-funded COVAX Advance Market Commitment could be utilised for the sake of equity. However, they were ignoring the glaring reality that patents can act as private governance rules, as explained by Dr Aisling McMahon in Global equitable access to vaccines, medicines and diagnostics for COVID-19: the role of patents as private governance. The paper argues that patent holders can determine who obtains access and at what price, exerting considerable control over the supply of critical products like vaccines and drugs. For example, the US cornered the global supply of Remdesivir, a drug believed at that time to help recover faster from COVID-19. The Guardian had reported that the US bought nearly all the stock from drugmaker Gilead, which held the sole patent for Remdesivir, for three months in 2020.
In its argument for a TRIPS waiver at the WTO, South Africa cited the example of the legal tussle in India between the pharma companies, Pfizer and GlaxoSmithKline (GSK), with Médecins Sans Frontières (MSF) over the pneumococcal vaccine. A patent had blocked the development of alternative versions of the vaccine. The MSF was finally able to “break the stranglehold” of the two companies, but after 20 years.
The above cases depict not just the barriers to access and equity created because of patents, but also the dangers of price gouging of critical drugs and vaccines by large pharma companies, for whom the bottom line is a core driver. The MSF statement, after the legal battle, said, “There is little transparency on the prices charged by Pfizer and GSK, as the corporations take great lengths to keep prices secret. The result of these high prices is that governments cannot afford the vaccine, and children are left unprotected against deadly diseases like pneumonia.”
Next comes the argument of whether IP rights are critical in promoting and supporting innovation and excellence in science. The United Nations' agency, the World Intellectual Property Organization (WIPO), says IP rights enable “people to earn recognition or financial benefit from what they invent or create,” which, as many argue, incentivises further innovation.
There is, however, little evidence to support this argument. On the contrary, IP rights could limit competition and an innovative drive. A report endorsed by the Council of the Royal Society called Keeping Science Open: The Effects of Intellectual Property Policy on the Conduct of Science says that IP rights can make it “impracticable for others to pursue scientific research within the areas claimed, and because inventions cannot be patented if they are already public knowledge, they can encourage a climate of secrecy. This is anathema to many scientists who feel that a free flow of ideas and information is vital for productive research.”
Finally, tackling the question of reward and recognition for the innovators - do the benefits of an innovation belong to only a set of people or the society at large? To answer this debated subject, let's turn to two papers. The first, the paper Political Aspect of Innovation by Jerry Courvisanos lays out how governments support innovators through research and development subsidies and tax concessions for incremental innovations, patent protection, and other intellectual property rights. In the other paper titled Technological Sovereignty as an Emerging Frame for Innovation Policy, Elder et al argue on a similar note about the fact that innovation for technological sovereignty is often focused on selected and strategically identified domains. The strategically identified domains are widely state-supported and sometimes even witness state intervention in the form of protectionist measures.
Should the innovation be credited only to the innovators when it is protected and promoted by a state or industry, and effectively an outcome of a much larger effort? If it is the making of an entire society, should IP rights prevent its utilisation by humanity at large, especially when its equitable distribution can make a difference between life and death?
The basis of seeking a balance between innovation and equity is, hence, as much rooted in market realities as it is in morality and justice. So, when the World Health Assembly meets next week to finally adoption the Pandemic Agreement, member nations must send out a message loud and clear - that innovation without equity is untenable, unviable, and unethical.
(Maha Siddiqui is a journalist who has extensively reported on public policy and global affairs.)
Disclaimer: These are the personal opinions of the author
