Equitable access to covid-19 vaccines: is the global IP system a barrier?

Kamal Hossain Meahzi:

The experts are seemingly unanimous in their opinion that the international IP (Intellectual Property) system has necessary policy options and flexibilities to ensure fair and equitable access to covid-19 vaccines. They reached such consensus relying on the provisions of the TRIPS Agreement, Doha Declaration on the agreement and other UN instruments which addressed and prioritized public health crisis over the rights of the patent holders. Nevertheless, the pharmaceutical giants with support of some high-income countries are showing reluctance to transfer their ‘know-how’ to the manufacturers of the least developed or developing countries to facilitate manufacturing of vaccines globally.

This paper concurs with the experts’ view while examining the legal instruments on the issue and asserts that by incentivizing drug makers adequately for R&D, the governments should use their leverage under the present IP system to ensure fair and equitable access to vaccines.

Provisions of the TRIPS Agreement and Doha Declaration

Article 27(1) of the TRIPS Agreement requires member countries to make patents available for any inventions, whether products or processes, in all fields of technology without discrimination. However, in case of public health crisis,the exercise of patent right available under Article 27 should be read with Articles 7 and 66 of the agreement.

The objectives of the TRIPS Agreement have been stated in Article 7 which refers to the protection and enforcement of IP rights in a manner that contributes to “the promotion of technological innovation”, “the transfer and dissemination of technology” to the mutual advantage of both “producers and users of technological knowledge” and “social and economic welfare”. So,TRIPS Agreement has recognized the importance of technology transfer through its objectives. Also, Article 66 (2) of the agreement states that the developed country members shall provide incentives to enterprises in their territories for the purpose of promoting and encouraging technology transferto the least-developed country members in order to enable them to create a sound and viable technological base.

Doha Declaration on the TRIPS Agreement and Public Health, a landmark declaration adopted at the WTO Ministerial Conference in 2001, reaffirmed the objectives of the agreement as guidance for the implementation of TRIPS provisions in a manner that is responsive to the needs of public health. WTO members affirmed that the TRIPS Agreement can and should be interpreted and implemented in a manner supportive of members’ right to protect public health and, in particular, to promote access to medicines for all.

The aforesaid provisions of TRIPS agreement and Doha Declaration make it abundantly clear that the TRIPS Agreement should be interpreted and implemented in line with its objectives and other useful provisions which sought to address public health crisis, such as covid-19.

ICESCR and UN Résolutions

Apart from the enabling provisions confirmed under TRIPS agreement to address public health crisis, the ICESR (International Covenant on Economic, Social and Cultural Rights), ratified by 171 countries as of July 2020, has also recognized the right to health care and intellectual property. Article 12 of the ICESCR categorically stipulates that every human being has a right to enjoy the highest attainable standard of physical and mental health and Article 15(1)(b) recognizes the right to enjoy benefits of the scientific progress or advancement. However, by Article 15(1)(c), ICESCR also guaranteed protection of IP rights and allowed people to profit from scientific innovation or creativity. Apparently, these two articles (Articles 12 and 15) created some contradictions. Subsequently, this contradiction was removed by a UN resolution. In its 2000/7 resolution, the UN Sub-Commission for the Promotion and Protection of Human Rights, asserts that human rights should enjoy superiority over patents and other economic policies and, thus, stated, inter alia, as follows:

“………. Reminds all Governments of the primacy of human rights obligations over economic policies and agreements”

As such, international policies under the aforesaid instruments, if interpreted and implemented with right attitude, the same would help to ensure fair and equitable access to covid-19 vaccines. The experts are of the view that the flexibilities of parallel imports or options of compulsory licensing confirmed under TRIPS agreement can be used to mitigate the current crisis. These are undoubtedly positive initiatives if taken by governments in exercising their leverage under the agreement. But the current situation demands manufacturing of vaccines for billions of people, which is not possible until the patent holders agree to share their technical ‘know-how’ with the other manufacturers operating globally.

To facilitate knowledge (know-how) sharing, the WHO has set up a mRNA technology transfer hub. To our knowledge, none of the technology holders or pharmaceutical companies have come forward to contribute to this global effort.Developed country members of the WTO need to take positive initiatives so that the technology holders come voluntarily to share and transfer‘know-how’ to the WHO hub which can expedite manufacturing of vaccines globally.By incentivizing the pharmaceutical companies adequately for R&D,the developed countries can encourage them to engage in transfer of technology for COVID-19 vaccines. Doing so would satisfy their Article 66 TRIPS obligations and demonstrate a clear commitment to fair and equitable vaccine access for people of low and middle income (LMIC) countries.

Kamal Hossain Meahzi is pursuing an advanced Masters in Compliance at the University of Fribourg, Switzerland, and a practicing lawyer of the Supreme Court of Bangladesh.