INTELLECTUAL PROPERTY RULES FOR COVID-19 VACCINES

WHAT ARE THE CONSEQUENCES OF INTELLECTUAL PROPERTY RULES FOR THE COVID-19 VACCINES? WOULD IT BOOST GLOBAL ACCESS TO VACCINES AND PROMOTE VACCINE EQUITY?

By Rulan Zhang Emory Kim

Although scientists have worked to develop vaccines at lightning speed, the challenge now lies in the distribution of the COVID19 vaccine to as many people as possible as quickly as possible. The equation for successful vaccination of enough people globally against COVID-19 is extremely complicated, as it often involves many more uncertainties and factors that studies cannot necessarily encompass.

On a surface level, we are already seeing how factors such as politics can cause delays in distribution, with countries imposing export controls on vaccine components. The complexity of vaccine production, often involving hundreds of parts, means that supply chains could easily break down, leading to shortfalls in fulfilling manufacturing targets.

In terms of more deep-rooted problems, it is becoming increasingly clear that the distribution of global vaccination is distinctly unbalanced: those living in developed nations are gaining access to vaccines much faster than those in developing countries. Currently, the majority of COVID-19 doses are going to wealthier countries, leaving many less economically developed countries (LEDCs) behind and almost entirely dependent on the COVAX scheme run by WHO. While COVID-19 vaccine rollout has now begun in more than 159 countries, vaccination rates in many low-resource nations remain low to nonexistent. As of December 2020, high-income countries representing 14% of the world population have 53% of the global supply of vaccines - this included 100% of Moderna’s vaccine and 96% of the Pfizer-BioNTech vaccine. Due to the vast inequities in COVID-19 vaccine distribution, it would take approximately 4.6 years to gain worldwide herd immunity with the current rate of 6.7 million vaccine doses per day.

Achieving herd immunity via vaccination requires enough people worldwide to be vaccinated, not just those in wealthier countries. It is clear that the status quo of vaccine roll-out simply may not be sufficient to meet the ambitious targets that have been set, making it extremely challenging to end the current pandemic and prepare for ones to come.

COVID-19 vaccines are by no means the first time that clear inequity has been seen with the distribution of crucial healthcare tools, therapeutics and efforts. Debates over the waiving of intellectual property (IP) rules for various healthcare therapeutics have persisted for years. While IP rights act as a critical incentive for pharmaceutical companies to invest in research and development (R&D) to constantly update and develop healthcare therapeutics, it allows companies to have monopolies over their products, which thus leads to an increase in price and exclusivity. The one regarding waiving IP rules for COVID-19 vaccines is in many ways no different and is bringing the dichotomy between IP rights and public health to the limelight.

India and South Africa appealed to the World Trade Organisation

(WTO) to relax IP protections for COVID-19 vaccines, highlighting the urgency of this debate. Subsequent to this appeal, there have been cries and letters of support from influential individuals and lawmakers urging for a temporary relaxation of the WTO IP protection rules.

Proponents of temporarily waiving IP protection of COVID19 medical technologies argue that this would allow manufacturers across the world (including LEDCs) to join in vaccine production to ramp up supply. This would be done without the fear of infringing IP rights, which means it could be easier to bring in more producers and produce on a larger scale. It might also be more efficient for poorer countries to conduct vaccine manufacturing in their own country, meaning they are no longer reliant on pharmaceutical companies in more economically developed countries (MEDCs) and WHO programs that require the funding/charity of MEDCs.

On the other hand, many experts argue that waiving IP protection will have limited impact and even cause harm to long-term vaccine investment and R&D. Experts argue that there is little proof waiving IP rights will increase vaccine production and vaccination rates in LEDCs. This relies on the premise that there are vaccine producers ready-to-go and capable of manufacturing if IP rights are waived. In addition, many LEDCs would have to make swift national legislative changes to accommodate for a change in WTO rules regarding IP rights, which would be extremely difficult and time-consuming and undermine the whole point of waiving IP rights.

Furthermore, many policy makers argue that maintaining IP rights would continue to provide the financial incentive for pharmaceutical companies to keep licensing and cooperating with manufacturers, which would increase global production. They argue that waiving IP rights, even temporarily, would take away the commercial incentive and harm manufacturing collaborations that would increase production. IP rights are also key to maintaining R&D to keep vaccines up to date with new COVID-19 variants. Removing IP rights could result in less private sector research due to the lack of financial incentive, causing COVID-19 vaccines to fall behind on variants and undermine efforts for second generation vaccines.

The debate surrounding the waiver of IP rights is more complicated than many proponents argue and may not necessarily lead to as many benefits as they believe. However, one thing is clear: there is an urgent need to think about global vaccine rollout strategy. In order to lessen the vaccine equity gap, it is essential to view vaccines as a public good and global effort rather than undertakings that deny people or countries who cannot afford them.

Enrico Bonadio Reader in Intellectual

Property Law, and Dhanay M. Cadillo

Chandler Postdoctoral research fellow.

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