Intellectual property (IP) refers to a conglomeration of exclusive rights that recognise and respect the ideas of a creator and grant protection from copy or misuse. Examples of IP rights include copyright, trademarks, patents, with the most contentious of these being copyright protection. While the interplay of IP rights and healthcare may not be readily apparent, the COVID-19 pandemic has re-emphasised the importance of securing access to intellectual property during a crisis, where this is in line with public interest.
A considerable amount of literature has been developed on the role of IP rights in the fight against the spread of COVID-19, with much of the focus on how to leverage pre-existing public interest mechanisms to provide quick access to life-saving information. This life-saving information is usually protected by patent laws, and access is subject to barriers designed to protect intellectual property. While necessary, these protections within the framework of the COVID-19 pandemic translate into barriers which hamper the advancement of the global fight against the pandemic.
It is the position of various prominent non-governmental organisations (NGOs) in the health sector and some governments, that the IPR which protect information central to vaccine and management protocol in the treatment of COVID-19 are against public interest. They argue that suspending IPR to allow unfettered information sharing will lead to better adaptation of treatment protocols, as well as quicker and more effective vaccine manufacture and access, which will especially benefit developing countries.
This belief was the foundation for a proposal made to the World Trade Organization (WTO), for a temporary global waiver on Covid-related IP rights. Head of the World Health Organization, Tedros Adhanom Ghebreyesus, gave his support, warning of a “catastrophic moral failure” caused by unequal access to Covid vaccines.
However, while such calls may seem morally appealing, they are heavily misguided. IP has played a vital role in every step of vaccine research, manufacturing and distribution. In January 2020, little was known about Covid-19. Eighteen months on, several safe and effective vaccines have been developed and authorised for use in record time, alongside over 1,000 ongoing clinical trials.
Far from delaying research, in contrast to the claim of critics, IP rights have provided indispensable support and encouragement for the dozens of research consortia and partnerships that have emerged to tackle the virus. This was only possible because IP rights allow potential rivals to co-operate and share valuable proprietary knowledge with confidence that it is legally protected from misuse. A good example is the partnership between Pfizer and BioNTech, which was behind the first vaccine to be authorised in the US. This would not have taken place without strong protections of the existing IP rights.
Proponents of free and unfettered access to vaccines argue that IP rights are largely responsible for unreasonably expensive Covid vaccines, with health NGO, Médecins Sans Frontières calling for “no patents or profiteering.” However, there is little prospect of unfair profits, with four vaccines already authorised by western regulators, numerous Chinese and Russian vaccines available and many more in development. In such a competitive environment, no single company is likely to monopolise and profiteer in the covid vaccine market.
Owners of new covid vaccines could license their manufacture to partners with the skill and capacity to produce large quantities of high-quality products. These can then be distributed at scale in low- and middle-income countries, in an orderly transfer of knowledge and technology.
Alternatively,voluntary IP licensing, an idea initially opposed by IP critics, can be deployed as it was successfully done in the past, notably for distributing innovative hepatitis C medicines in lower-income countries.
The removal of waiver of IP rights would constitute a step backwards and discourage companies from making urgently needed refinements to existing vaccines to combat new Covid-19 variants. Existing vaccine-manufacturing licensing deals would be derailed, throwing global supply chains into chaos and place further strain on vaccine rollouts as a result of manufacturing delays. Indeed, it is difficult to see how the transfer of manufacturing know-how would proceed in that scenario.
Currently, new manufacturing licensing deals such as those between AstraZeneca, Novavax, and the Serum Institute in India will allow billions of doses of the vaccines to be manufactured over the next months. COVAX, a new WHO multilateral vaccine procurement body, is expected to source many of these doses for distribution in lower-income countries.
Misguided calls to suspend IP rights may sound ethically appealing, but this appeal fades in the face of the harm they could inflict now and in the future. If a similar situation arose, few investors or academics would invest their money, time and effort in a process, research or product over which they will have minimal control.
In this scenario, developing countries will lose more, as a waiver could result int the market being flooded with counterfeit vaccines which may present a greater public health risk than SARS-Cov-2019. Given the weak food and drug regulatory capacity of these countries, this could be potentially dangerous not just for those countries but for the rest of the world.
Critics of IP need to understand these potential issues. Contrary to their argument, the strength of the Intellectual Property regulations could contribute in accelerating an end to the pandemic.
Reach out to Achare Takor, Head of the Intellectual Property Desk at Centurion Law Group, to inquire more, or download the IP Brochure
Author: Achare Takor, Head of the Intellectual Property Desk at Centurion Law Group
