March 11, 2022 marked the beginning of the third year of the COVID-19 pandemic. A couple of days later, a compromise deal for a partial intellectual property rights (IPR) waiver was leaked to the press, presented as a tentative agreement by India, South Africa, the United States and the European Union. The four are functioning in a group under the auspices of the World Trade Organization (WTO) following a year-long impasse of the TRIPS waiver discussion among the organization’s members.
The compromise deal would cover only vaccines, giving countries the opportunity to use those under patent without seeking permission from the patent holder. This would not apply to all countries, but only to countries classified as developing at the WTO, which have a share of less than 10% of world exports of COVID-19 vaccine doses in 2021. This designation means that some countries with significant production capacities would not be covered by the agreement, notably China which has a share of more than 30% in world exports. While space is left to expand the application of the deal to medicines and diagnostics, there is no guarantee this is going to happen.
Rich countries, especially the US and the EU, have been rigorously pushing for a partial and limited waiver for months, looking for a way to avoid the original proposal submitted to the WTO by India and South Africa in October 2020. While the original proposal called for waiver of all types of intellectual property (IP) on all COVID-19 medical products for all countries, the counter proposal is extremely limiting as it is asking for a patents-only waiver, for vaccines only, and for a limited number of countries. It excludes other types of IP protection such as trade secrets, copyright, undisclosed data and industrial design. Again, it excludes tests, treatments and other necessary tools such as masks and ventilators.
However, the surfacing of the compromise deal does not mark the end of the TRIPS waiver discussions, as the governments of the four entities still have to finalize their own consultations and take the deal to the other WTO members.
In the case of the EU, government consultations mean consultations with all member states. While it remains unclear whether the deal has been backed by all EU members at the time of writing this report, concerns have been raised about the possibility of some of them watering down the deal even further. This particularly applies to Germany.
Some, including World Health Organization (WHO) Director-General Tedros Adhanom Ghebreyesus and WTO Director-General Ngozi Okonjo-Iweala, have hailed the compromise deal as an important breakthrough for pandemic response and recovery. Yet the possibility of scaling down from the original TRIPS waiver proposal was heavily criticized by right to health movements, including the People’s Health Movement, Third World Network, and DAWN.
5) This compromise has nothing new to offer and places even more restrictions than the ones already present within the #TRIPS Agreement
We need MORE, not LESS freedom to manufacture & distribute #COVID19 tests, vaccines & drugs
Go back to the drawing board!#Fem4PeoplesVaccine
— DAWN (@DAWNfeminist) March 16, 2022
EU has finally admitted dat intellectual property is a barrier & threat to access to vaccines. Yet their proposal doesn't even begin to address the issue. It's limiting & against access principles. @EU_Commission @VDombrovskis#TrueTRIPSwaiver NOW!https://t.co/rG440ZQtQN
— PHM (@PHMglobal) March 16, 2022
Maintaining a two-tiered world
Criticism of a partial waiver was expressed even before the existence of the compromise text was known. During her introduction to the recent webinar “Two Years of COVID-19 Pandemic, Two Years of Shameful Inequitable Access,” Sangeeta Shashikant from Third World Network warned that approximately 100 countries in the world still lagged behind the vaccination goals set by the WHO. But the unavailability of diagnostics and treatments for COVID-19 is an equally pressing problem that needs to be addressed with urgency. As Shashikant explained, the scope of the original waiver proposal is to prevent, treat, and contain COVID-19, a feat that vaccines alone cannot accomplish.
Othman Mellouk from the International Treatment Preparedness Coalition concurred that it is well known that intellectual property rights on all three key areas of products – vaccines, tests and drugs – need to be lifted if the world is serious about addressing the health inequities that have appeared during the pandemic. “The attempt by rich countries to focus our attention on vaccines is an attempt to safeguard the profits of Big Pharma. Essentially, they are saying, ‘Okay, they might lose a bit of income if a vaccine waiver is passed, but at least we will safeguard the profits coming from tests and drugs,’” Mellouk said.
The partial approach is also indicative of the colonialist perception of the Global South by both rich countries and pharmaceutical companies. “It reminds me of what we saw in the early stages of the HIV/AIDS pandemic, when the same people were saying that therapeutics which were working in rich countries would not work for Africa, that a different, prevention-only approach should be adopted for this part of the world,” Mellouk commented.
Health strategies in the US and the EU recognize the importance of combining vaccines, tests and drugs when combating COVID-19. Yet, when it comes to the international level, the same countries are proposing measures that make it harder for low and middle income countries to follow the same approach. One example is the EU’s long-lasting insistence on compulsory licensing instead of fully backing the TRIPS waiver.
As Leena Menghaney from the MSF Access Campaign warned, securing licenses is far from simple, and more often than not, they come with strings attached. Instead, a full TRIPS waiver would guarantee freedom to operate to all production capacities in the world. It would also mean that they could freely access the raw materials that are needed to produce generics, as well as what Brook Baker from the Health Gap refers to as “the full technology package” – the software and know-how used in the production process.
A full waiver is the only real solution
Baker believes that only this approach, in combination with a full mobilization of local production capacities, will allow us to expand supply in line with actual needs.
Felipe de Carvalho from the Brazilian Interdisciplinary Aids Association (ABIA) emphasized that for the Global South, the need for COVID-19 treatments is huge. “COVID-19 treatment is out of reach in most countries in Latin America. All the drugs that big pharmaceutical companies can produce in 2022 have already been sold to rich countries, so there is very little we can do without a waiver. Governments have to accept all the conditions producers put forward if they want to purchase the drugs,” he said.
This comes from the experience of contracts for COVID-19 vaccines in which companies like Pfizer were able to take governments for a ransom, undermining countries’ sovereignty and law of the land.
Many countries in Latin America have the production capacities to increase the availability of the necessary products, but if the text allegedly proposed by the US, the EU, India, and South Africa comes to a pass, it is unclear if they will get the chance to use them. A limited waiver, like the one the US and the EU are aiming for, will not be enough to meet the world’s needs, said Lori Wallach from Rethink Trade at the 11 March webinar.
Many countries in the Global South are already struggling with the debt they accumulated when they were purchasing much needed vaccines from pharmaceutical companies. Their situation will worsen if they are not allowed to rely on their own resources for producing COVID-19 medical products, and generic treatments are not made available soon. “Our world is broken now, and it will remain broken in future pandemics if the approach doesn’t change soon,” Baker said.
Read more articles from the latest edition of the People’s Health Dispatch and subscribe to the newsletter here.
