Global death toll from Covid-19 has topped a staggering three million with cases of infection nearing 145 million. This, however, does not say all, as under-reporting, due to deaths and infections outside hospitals and clinics, renders the picture less upsetting. Added to this are setbacks faced by many countries in accessing vaccines.
Although vaccines have been rolled out by UK, USA, Russia and China, half of all doses administered so far have been in Europe and North America, while many poorer countries have vaccinated 1.0 per cent of their populations. With new coronavirus variants raising the health risk, South Africa and India have proposed that the World Trade Organisation (WTO) temporarily waive intellectual property rights for Covid-19 vaccines to help ramp up production. Manufacturing countries rejected the idea, arguing that intellectual property rights - which give vaccine creators the power to prevent other companies from reproducing their products - are necessary to ensure innovation and waiving them would not result in increased production. They are now under pressure to change their minds.
Clearly, the focus now is on how vaccine will be accessed once approved for use. Several obstacles have surfaced in many countries. As for Bangladesh, it is the failure of the vaccine supplying company in India due to sudden surge of Covid-19 infections and deaths in that country that has stopped shipment affecting vaccination programme here. There are reports of similar nature in other countries as well-- in Asian and African regions. While there are obstacles in ensuring sufficient manufacturing capacity and infrastructure to roll out vaccines globally, another potentially significant obstacle is the role of intellectual property rights, including patent rights, in how vaccines are accessed.
Patent rights play a significant role in how Covid-19 vaccines will be accessed - by whom and at what price. Patents effectively give the patent holder the right to stop others from using the patented technology without their permission for the duration of the patent. If the patent holder refuses others the permission to manufacture or sell the vaccine, they can become the sole provider of the vaccine, and this could have knock-on effects on the price and on the quantities of the vaccine available for sale around the world. Such intellectual property rights also give the rights holder the potential to agree on deals with countries for preferential access to the first supplies of the vaccines, which could limit supplies available elsewhere. Indeed, recent reports suggest that over 80 per cent of the supplies for the Pfizer/BioNTech vaccine are already agreed for distribution in higher-income countries accounting for only 14 per cent of the world's population, which could lead to shortages elsewhere.
Experts have suggested that to address potential access obstacles arising from intellectual property rights, governments can encourage patent holders to share intellectual property rights to tackle the pandemic by endorsing voluntary licensing initiatives. One example is the World Health Organisation's Covid-19 Technology Access Pool (C-TAP) which encourages the sharing of data, intellectual property rights, knowhow and cell lines related to Covid-19 health technologies in a spirit of solidarity to bring an end to the pandemic as soon as possible. The C-TAP initiative, if supported by states and pharmaceutical companies, would provide a key mechanism to ensure that intellectual property rights do not impede access to Covid-19 vaccines/treatments. However, to date, C-TAP has received endorsements from just 40 countries globally.
Alongside such voluntary initiatives, it is important that states have effective avenues to mandatorily intervene with patent holders' licensing decisions via compulsory licences if patent holders refuse to license technology on reasonable terms for Covid-19. A compulsory licence allows use of an invention without the patent holder's permission, provided certain criteria are met. In this vein, some patent holders including Moderna, have indicated they will not enforce their intellectual property rights over Covid-19 vaccines during the pandemic, but not all rights holders have made such commitments.
When a country approves a patent, it gives the patent holder a monopoly for a limited term, usually 20 years, for new and highly inventive ideas. The promise of having a monopoly gives the patent holder more incentive to take on the risk of research and development and get a product to market. The company can charge a high price for a limited time to recoup that investment. The key phrase is "limited time." This makes sure that once a patent runs out, others can make the product. Generic drugs are an example.
For emergencies, the patent system has a series of safety valves that allow governments to intervene before that limited time is up. The most important safety valve for Covid-19 vaccine production is compulsory licensing. Based on public needs - including health emergencies - a government can allow others to make the product, usually with a reasonable royalty, or fee, paid to the patent owner. Compulsory licensing is not a violation of patent or intellectual property. The rights holder still gets compensated, and access is assured when it is most needed.
So, why doesn't this solve the Covid-19 vaccine access problem?
The WTO's General Council Members met last week to discuss the matter towards finding a worthwhile solution. Following their discussions on the issue of intellectual property and access to essential Covid-19 medicines and medical equipment, the Council members turned to a proposal on "Trade and Health: Covid-19 and beyond" endorsed by 20 delegations. The text calls for concrete actions to facilitate trade in essential medical goods and to enhance the capacity of the trading system to deal with a public health emergency. In addition, a group of Latin American and Caribbean members made a statement asking for immediate removal of all barriers to exports and restrictions blocking equal access to Covid-19 vaccines. They also asked to open a debate on trade-facilitating measures relating specifically to vaccine access, including customs and logistics, due notification, standards uniformity and easier movement of health professionals.
In this backdrop, a major breakthrough has taken place. The USA in a surprise move on May 5 announced that it would support waiving patent protections for covid-19 vaccines. This has met opposition from the EU, still one hopes that the US move would be able of strike the right chord capable of addressing the issue of vaccine access soon.