At a meeting held in London on March 9, the newly elected Director-General (DG) of the WTO, a Nigerian, called on the Covid-19 vaccine manufacturers to increase production in the developing countries. The DG’s statement is of significance as a decision is awaited on the TRIPS (Trade-related Intellectual Property Rights) waiver proposal made by India and South Africa in October 2020.
The waiver proposal seeks to suspend standards concerning the availability, scope and use of Intellectual Property Rights under Articles 1, 4, 5, 7 and the related enforcement process under Part III of the TRIPS agreement. The waiver proposers, with support from many developing and under-developed countries and international organisations, intend to increase access to vaccination globally through temporary suspension of commercial rights of the creators, inventors, etc., engaged in the research and development of vaccines.
However, the proposal has been strongly resisted by European Union and the US, among others, citing the detrimental effect this proposal would have on the interests of the investors and innovators in the pharmaceutical sector. The resistance by a few powerful members of the World Trade Organisation (WTO) can possibly lead to non-acceptance of the proposal by it.
While the discussion on the waiver proposal continues, the DG, emphasising on the need to increase vaccine production, pointed out the need for “walking and chewing the gum at the same time” considering “the scarcity of Covid-19 vaccine supplies [which] had led to a situation in which around 75 countries are able to move ahead with vaccination while 115 countries wait as people die.”
There have been instances where several nations have procured vaccines far more than needed. Rich nations hoarding vaccines will not resolve the public health crisis as diseases of a contagious nature can only be fought through mutual cooperation between nations in a globalised world. Hence, it is important that developing and under-developed nations also receive access to vaccines.
In the current situation, countries such as the US have not only opposed the proposed waiver but have condemned countries like India, Indonesia, Egypt for taking the alternative route of compulsory licensing under Article 31 of TRIPS, alleging broad and arbitrary grant of such licences. Compulsory licensing allows the appropriate government authorities to grant licence of patents to third parties or government agencies without the consent of the inventor. Grant of such compulsory licensing takes place based on a case-by-case basis and pursuant to providing the inventor with adequate compensation.
However, the solution of compulsory licensing is not without its own share of problems as national laws often fail to facilitate expeditious use of such provisions. Countries like Australia, Germany, Hungary had to amend their national laws to facilitate the use of compulsory licensing during the pandemic.
Moreover, the implementation of compulsory licensing can be very expensive and time-consuming in terms of the compensation and determination of ‘case-by-case basis’ requirements.
While these common challenges prevail, increasing production of the vaccines might seem like an achievable solution on the face of it. However, as the proposers of the waiver pointed out in a subsequent discussion held on 10-11 March, “existing vaccine manufacturing capacities in the developing world remained unutilised because of IP barriers, and hence insufficient amounts of vaccines were being produced to end the pandemic.”
Thus, the proponents argue that an increase in the existing production would only be possible if barriers in the form of IP regulations are dealt away with. “The waiver proposal represents an open and expedited global solution to allow uninterrupted collaboration in the production and supply of health products and technologies required for an effective Covid-19 response.”
According to reports, as of March 3, 400 million doses of vaccines had been manufactured globally, which represents 3% of the committed supply of 14 billion doses by all manufactures in the year 2021.
The targeted supply can only be met if there is an increase in manufacturing capacity. Especially, a country like India with high manufacturing capacity could emerge as a major vaccine producer through additional production which would help in combating the pandemic around the world via vaccine exports.
The Deputy Directors-General of WTO called upon the members to “…work together towards making vaccines available to all. Moreover, the war against the pandemic can only be won when universal coverage in vaccination is achieved.”
Amidst the pandemic and loss of lives, a delay in the decision on the waiver proposal could exacerbate the global public health situation. Increasing vaccine production is an effective solution to the challenge, but that requires that the stringent IP protection granted to the pharmaceutical sector be waived immediately for the purpose. Therefore, the proposal of India and South Africa must be speedily accepted by the WTO.
(The writer is Assistant Lecturer & Faculty Coordinator (Academic Affairs), Jindal Global Law School, OP Jindal Global University, Sonepat)