There was a brief moment of euphoria last week as it looked like COVID-19 vaccines, drugs and supplies could be released by the World Trade Organization’s intellectual property rights straitjacket and a patent waiver would make them available and affordable for those not vaccinated in the World South.
But closer, Big Pharma and its parent states have won again.
The ill-fated “solution” agreed upon by the informal “quad” (US, EU, India and South Africa) is insufficient, problematic and unrealistic. There are too many constraints to make a significant difference and it is far from the original proposal from India and South Africa that would have effectively addressed the barriers.
While the WTO is making decisions by consensus, it is not clear to what extent this deeply flawed text can, or will, be reopened when members debate next week. Due to its full history, it is unlikely that they will agree to resolve its shortcomings.
Let us recall some sad and disturbing facts. In the third year of this pandemic, only 14% of people in low-income countries have even been vaccinated once. Rich countries like New Zealand are 90% vaccinated and on our third shot. In fact, at the end of last year, there were more boosters in high-income countries than total doses in low-income countries.
Read more: The major barriers to global vaccination: patent rights, national self-interest and wealth
A second sad and disturbing fact: in November last year, the People’s Vaccine Alliance reported that Pfizer, BioNTech and Moderna, the companies behind two of the most successful COVID-19 vaccinations, total US $ 65,000 (NZ $ 92,000) each Make minute.
They have received more than US $ 8 billion in public funding to develop the lucrative COVID-19 vaccines. Pfizer and BioNTech supplied less than 1% of their total vaccine supply to low-income countries, while Moderna supplied only 0.2%.
Pharma profits and property rights before right to life
An important guarantor for the profits of the pharmaceutical companies is a little-known trade agreement, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
During the negotiations to form the WTO in the early 1990s, the US demanded strong protection for the intellectual property rights of its firms as the price of the agreement to discuss real trade issues such as subsidized agriculture. WTO members, in addition to the least developed countries, must implement these rules in their national laws.
The significance of the TRIPS was exposed in the late 1990s, when pharmaceutical giants threatened legal action against South Africa and Brazil to produce generic versions of patented HIV-AIDS antiretroviral drugs.
A global name-and-shame campaign has drawn them back and seen a declaration on TRIPS in public health adopted at the 2001 WTO Ministerial Conference. This compromise was a precursor to the COVID-19 scenario.
Read more: Wealthy nations starve the developing world of vaccines. Omicron shows the cost of this greed
To date, only one country, Rwanda (which belongs to the group of the least developed countries), has jumped the hurdles and imported medicines under the change of TRIPS.
Attemptive deal limited to vaccinations only
Two decades later, in October 2020, South Africa and India led movements for a TRIPS waiver of COVID-19 vaccines, medicines, test kits and other supplies. Despite another global campaign involving New Zealand public health representatives, trade unions, churches and development agencies, the European Union, Switzerland and the United Kingdom have blocked despair every step of the way.
The Biden administration changed its position in May 2021 to support negotiations for a waiver, but limited it to vaccinations. This announcement brought a New Zealand sitting feather on board.
Read more: US support for waiver of COVID-19 vaccine patent rights puts pressure on drugmakers – but what would a waiver actually look like?
The proposal remained in place for 18 months. Some richer countries have called for completely unrelated negotiations to further their commercial goals, while the hard core refuses to move. Last December, talks moved to a new phase, where the “quad” of key WTO members tried to broker a deal.
When the tentative deal was announced last week and the text deleted, the euphoria quickly subsided.
The text only applies to vaccines’ patents, and COVID-19 only, which means that a similarly complicated process would be required for future pandemics. WTO members will decide in six months whether to extend it to medicines, diagnostics and therapies, as proposed by South Africa and India. Realistically, this will not happen.
Opportunities continue to pile up against poorer countries
Beyond these limitations, there is no guarantee that governments will have access to the “prescription” for all currently patented vaccines, let alone second-generation vaccines that still claim patents, or the technology needed to produce them.
There are many legal uncertainties. A WTO member may authorize “use of patented subject matter” otherwise protected under TRIPS Article 28.1 “to the extent necessary to address the COVID-19 pandemic”.
When does COVID-19 stop being a pandemic, who decides, and what happens when COVID-19 is just endemic? Which uses of patented subjects are considered “necessary” (a restrictive concept in commercial law) and which ones go too far? The text still allows these things to be taken for granted.
The odds are further stacked against poorer countries. Eligibility is limited to WTO developing countries that exported less than 10% of the world’s vaccines by 2021. This means that China is excluded in non-WTO countries, as well as countries such as Brazil, which have recently relinquished their developing country status.
The coverage of the least developed countries is unclear. And the complex and burdensome notification and compliance requirements may be as unrealistic as the previous TRIPS disclaimer.
Four things remain to be seen. First, will the deal actually be implemented without debate and change in another travesty of the WTO consensus process?
Second, what kind of dissertation would richer countries demand in return for their support?
Third, this will be the end of the movement to establish TRIPS rules, even temporary ones, to ensure genuine access to life-saving COVID medicines, vaccines and medical care for the majority of the world’s people and developing countries once the direct COVID-19 has the crisis subsided?
And would New Zealand and the Australian governments be complicit in this happening?
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