Twenty months ago, India and South Africa proposed a comprehensive but temporary waiver of enforcement of WTO intellectual property monopolies on COVID-19 vaccines, medicines, diagnostics, and other medical supplies that would have triggered a faster, more affordable, and more equitable COVID response. Rather than respond with alacrity and solidarity, the rich countries of the world, acting on behalf of Big Pharma, united with delay, distortion, and disinformation. The result is an illusory, do-nothing text, cobbled together by the WTO Secretariat, that the U.S., European Commission, Germany, Switzerland, and the U.K. are trying to cram down the neck of developing countries already choking on a steady diet of broken promises and immeasurable death, suffering, and economic disruption.
Enough is enough. This text, a three-page, highly bracketed sham “compromise” that negotiators are still wrangling over, is an abomination. The focus on unworkable compulsory license mechanisms and exclusion of access to secret, but critical manufacturing know-how is courtesy of the European Commission; for procrastination and exclusion of COVID tests and therapeutics, we can thank the U.S.; and for the erosion and distortions of existing WTO TRIPS Agreement flexibilities, we can credit the entire rich-country tag team and a WTO Secretariat dead-set on securing an outcome, even if it’s a bad deal for the very countries seeking to use and expand existing TRIPS flexibilities.
The proposed text would leave countries worse off than they are without it. For example, without including access to trade secrets, the draft text will do nothing to accelerate expanded access to vaccines. Ratifying a six-month delay in even considering inclusion of tests and treatments guarantees the vicious continuation of test-and-treat apartheid, added to the carnage of vaccine apartheid. The addition of reams of red tape, from limitations affecting eligible suppliers, to notice requirements, to anti-diversion measures, to non-coverage of components and manufacturing processes, and distortion of access to regulatory data eviscerates even the semblance of fair dealing.
The text is the pure distillation of pharmaceutical industry greed and bullying by the wealthiest countries of the world, designed to ensure non-use and to safeguard Big Pharma’s intellectual property empire now and in the future.
Some stalwart developing country negotiators are still trying to save the text from the worst form of itself, but even the best version of this text is still worse than no text at all. This text cannot be salvaged; even major surgery would not transform it into a workable solution for this pandemic, let alone set a workable standard for addressing future global health crises. By failures of process and substance and a false consensus-based model that cedes veto power to recalcitrant rich countries, the WTO has once again proven itself incapable of responding to pandemic emergencies.
WTO members, including the original waiver sponsors, should immediately and publicly commit to voting against this text in advance of next week’s WTO Ministerial.
Developing countries should also stop relying primarily on the failed WTO to empower their resistance to the tyranny of monopolies on COVID-19 countermeasures. Countries can act unilaterally to amend their national laws to allow temporary national security waiver of IP rights on COVID-19 technologies. They can adopt and use a plethora of other TRIPS-compliant flexibilities to overcome patents, copyright, and trade secret barriers (as insufficient and difficult to use as they are). They can make common cause with other countries to expand and support regional biopharmaceutical manufacturing and to override IP barriers on key medicines like Moderna and Pfizer’s mRNA vaccines and Pfizer’s outpatient antiviral, Paxlovid. Should obstacles prove too great, generic companies and countries should simply defy IP restrictions and allow their courts to impose low royalties as right holders’ exclusive remedies.
And rich countries should not be left off the hook. Advocates should demand that Europe and the U.S. unilaterally disarm and agree not to use dispute resolution mechanisms in the TRIPS Agreement and free trade and investment agreements to challenge countries’ lawful resort to TRIPS flexibilities. Trade threats and sanctions have no place in a pandemic, and even if rich countries can’t face the Pharma storm of directly challenging the sanctity of IP exclusivities, they can refuse to be bully-boys on their behalf.
Finally, the hegemony of Big Pharma itself must be challenged. How much pandemic profiteering can we collectively endure? Are tens of billions in excess profits already harvested not enough? Advocates can demand that Pfizer, Merck, and all the rest grant alternative producers freedom to operate through licenses and technology transfer. Share the knowledge so that the fruits of scientific research can truly be shared globally and so that this terrible pandemic can be pushed towards eradication.
