Covid vaccines as a global public good
As the world learns to respond to current and future pandemics, we need to think about IP and patent rights for the development and distribution of vaccines.
The domestic and global response to the Covid-19 pandemic suffered from economic and political barriers. The worldwide access and distribution of vaccines have been marked with disparity that reflects global inequity. The UNESCO’s International Bioethics Committee and the World Commission on the Ethics for Scientific Knowledge and Technology (COMEST) have urged that vaccines be treated as a global public good to ensure they are equitably available in all countries, and not just those who bid the highest.
The European Journal of Public Health published an article by Marianne Meijer, Marieke Verschuuren, and Ella Weggen of the Wemos Foundation – a non-profit based in The Netherlands that focuses on global health rights. The authors identified the role of IP rights in the continued dominance of vaccine production by a small group of pharmaceutical companies. They found that patents protected these companies’ manufacturing platforms from competition, contributed to high prices and reduced access from middle- and low-income countries. Published in September of 2021, the article highlighted these issues as the omicron variant and third wave of Covid-19 spread at rates not seen before.
The authors remind us that, in October 2020, India and South Africa filed a proposal with the World Trade Organization, which includes the Trade-Related Aspects of Intellectual Property Rights (TRIPS), for a waiver to be issued for some IP rights related to the manufacturing of Covid-19 products (not solely vaccines). It would have enabled third parties to produce vaccines without the risk of legal repercussions. Over 100 countries backed the waiver, but high-income countries, including Canada, the US, the EU and European Commission (EC), blocked it. Their justification was that manufacturing expansion, as opposed to IP patent rights, was the main impediment to increased vaccine access. The authors rightly identified that the EC failed to recognize that ramping up production requires sharing IP rights and the know-how related to manufacturing. If only IP rights are provided without the requisite knowledge of how to manufacture vaccinations, the result is decreased efficiency and delayed vaccine distribution.
There are ways to accelerate the distribution of vaccines, but we must consider that the current incentive for pharmaceuticals to develop new vaccines and incur heavy research and developments (R&D) costs are contingent on exclusive rights provided over production and sale. Brink Lindsey, VP and Director of the Open Society Project at the Niskanen Center in Washington DC, is a Harvard Law School graduate and published his thoughts on why waiving patent protections provides no panacea. Lindsey states that technology transfers, capacity expansion, and supply line coordination are more immediate needs. He suggests that the most effective method during a public health crisis is direct government support. This would include the public funding of R&D, purchase commitments by governments to buy large numbers of doses at set prices and to do so generously to maintain the incentive for drug companies to prioritize this work. He argues that "to accelerate the end of a public health emergency drug makers should profit handsomely from doing the right thing."
Lindsey finds it is appropriate to shift market incentives in a pandemic, such that governments provide superior incentives to those offered under patent law. Public funding covers R&D costs for drug development and provides advance purchase commitments that guarantee healthy returns. His opinions merit consideration because profit incentives and the organizational capabilities of the pharmaceutical industry remain the most expedient method for the response to future global health crises.
However, Lindsay’s outlook still suffers from issues of global disparity. His proposal does not fully address the inequalities between high- and low-income countries. A low-income country cannot afford to place large purchase commitments for vaccines. To avoid this gap between nations, public funding for R&D and significant purchase commitments would have to be made through a global fund. We would also need an agreement between nations and pharmaceutical corporations that all IP, manufacturing and patent rights will become a global public good after successful trial and development.
It is vital in the fight against a global pandemic that countries have vaccine availability in relatively the same period. The omicron variant developed because of high infection and low vaccination rates. Virologists have posited that if all eligible individuals had been vaccinated in the same period the Covid-19 virus would not have mutated in the same manner that gave rise to the omicron variant.
It is not without a terrible irony that in November 2021, the omicron variant was first detected in South Africa. Vaccines with high efficacy rates had been available in high-income countries for over six months prior to the first detection of the omicron variant. This all occurred when, just over one year before, the country had filed its joint proposal to TRIPS for a waiver that may have facilitated greater vaccine access and prevented the more contagious omicron variant.
Global problems require global solutions. Equitable global access to vaccines is paramount to the fight against future variants and diseases. The cost of not doing so is high, not just financially, but in the social consequences that further divide nations and individuals within them. The circumstances that preceded the highly contagious omicron variant were preventable. The WTO and TRIPS, high- and low-income countries, and multi-national pharmaceuticals must work together to create a system of vaccine production that both maintains incentives for the development of life-saving medical technology and meets a primary goal of global vaccine equity and efficacy. IP rights and patent laws must evolve to recognize a global health crisis and provide the legal framework for vaccines to be recognized as a global public good.
The world depends on it.