Intellectual property cause of death, genocide
By Jomo Kwame Sundaram
& Anis Chowdhury
KUALA LUMPUR and SYDNEY,
Feb. 9, 2021 (IPS) – Refusal
to temporarily suspend several
World Trade Organization
(WTO) intellectual property
(IP) provisions to enable much
faster and broader progress in
addressing the COVID-19 pandemic
should be grounds for
International Criminal Court
prosecution for genocide.
Making life-saving vaccines,
medicines and equipment available,
freely or affordably, has
been crucial for containing the
spread of many infectious diseases
such as tuberculosis, HIVAIDS,
polio and smallpox.
Jonas Salk, who developed
the polio vaccine, insisted that
it remain patent free. Asked who
owned the patent 65 years ago,
he replied, “The people I would
say. There is no patent. You
might as well ask, could you
patent the sun?”
Intellectual property
induced scarcity
However, cross-border
enforcement of intellectual
property rights (IPRs) is relatively
recent. The 1994 WTO Agreement
on Trade Related Aspects
of Intellectual Property Rights
(TRIPS) greatly strengthened
and extended IP transnationally.
IPRs have effectively denied
access to patented formulas and
processes except to the highest
bidders.
Recognising the extent of the
pandemic threat, vaccine developers
expect to be very profitable,
thanks to national and
transnational IP laws. Thus, IP
has distorted research priorities
and discouraged cooperation
and knowledge sharing, so
essential to progress.
As COVID-19 infections and
deaths continue to rise alarmingly,
rich countries are falling
out among themselves, fighting
for access to vaccine supplies, as
IP profits take precedence over
lives and livelihoods.
‘Vaccine nationalism’ involves
cut-throat contests responding
to scarcity due to limited output.
Facing vaccine wars, multilateral
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arrangements, such
as Covax, have not adequately
addressed current challenges.
Vaccine nationalism has also
meant that among the rich,
the powerful – Trump’s US –
came first. Consequently, most
developing countries and most
of their people will have to wait
longer than necessary for vaccines,
while the powerful and
better off secure prior access,
regardless of need or urgency.
Lethal combination
This lethal combination of IP
and vaccine warfare is responsible
for more avoidable losses
of both lives and livelihoods.
Developing nations, especially
the poorest and most vulnerable,
have been left far behind,
even in most programmes for
COVID-19 prevention, containment,
treatment and vaccination.
The deadly duo are unnecessarily
delaying the end of the
pandemic, causing avoidable
infections, deaths and related
setbacks. World Health Organization
(WHO) Director-General
(DG) Tedros warns “the world is
on the brink of a catastrophic
moral failure…the price of this
failure will be paid with lives
and livelihoods in the world’s
poorest countries”.
He advises that “the international
community cannot allow
a handful of companies to dictate
the terms or the timeframe
for ending the pandemic”; “vaccine
nationalism combined with
a restrictive approach to vaccine
production is in fact more
likely to prolong the pandemic
… tantamount to medical malpractice
on a global scale”.
While over 39 million vaccine
doses had been given in 49
richer countries, only 25 doses
had reached one poor country!
At current rates, more than 85
poor countries will not have significant
access before the end
of 2023! In 70 lower income
countries, only one in ten will
be vaccinated.
Of the 7.2 billion confirmed
sales of COVID-19 vaccine
doses, 4.2 billion have gone to
the wealthiest nations. With
only 16% of the world’s population,
high income countries
have secured 60% of available
doses. Meanwhile, the African
Union has only procured 670
million for the continent’s 1.3
billion people.
Public health
exception
Following strong advocacy
led by South African President
Mandela, a 2001 WTO Declaration
on TRIPS and Public
Health affirmed countries’ right
to protect public health by enabling
access to medicines, even
without a health emergency.
Although TRIPS now allows
such government public health
efforts, developing countries
remain constrained by compulsory
licensing’s complex rules,
procedures and conditions.
Threats and inducements by
transnational corporations and
their governments limit its use.
Hence, use of compulsory
licensing by developing countries
has been largely limited to
several more independent middle
income countries and HIV/
AIDS medicines.
TRIPS waiver
The TRIPS waiver proposal
to the WTO – led by South Africa
and India – seeks temporary
suspension of several TRIPS
provisions to greatly scale up
production of and access to
COVID-19 vaccines, medicines
and equipment to contain the
contagion.
The Trump administration,
the European Union (EU) and
their allies have so far blocked
the waiver proposal, although
its measures are allowed by
their own national laws. Some
rich countries even increased
such provisions with the pandemic.
South African TRIPS negotiator
Mustaqeem Da Gama has
debunked the waiver opponents’
claim that even if “approved
tomorrow, there are no companies
in the developing world
that can produce any number of
products relevant to COVID-19,
including mRNA vaccines”.
In fact, the Serum Institute
of India is acknowledged as the
only facility in the world with
the mass vaccine production
capacity to rapidly greatly scale
up output. Furthermore, 72 of
the 154 vaccines ‘pre-qualified’
by the WHO are already being
manufactured in developing
countries.
Such production in developing
countries is subject to
very restrictive IP regulations
and licensing agreements with
stringent conditions. Hence,
existing capacity in India,
China, Brazil, Cuba, Thailand,
Senegal and Indonesia, among
others, remains underutilised,
primarily due to such legal barriers.
IP main barrier
Despite growing support for
the waiver, the proposal was
rejected by the TRIPS Council
on 4th February. The EU
insists that IP will “ensure the
publication and dissemination
of research results, when otherwise
they will remain secret”.
But everyone knows the
IP system discourages, rather
than encourages cooperation
and sharing, both essential for
accelerating progress. Although
IP requires sharing research
results, no vaccine developer
has done so yet. Nonetheless,
waiver opponents insist the system
is working well.
Rich countries opposing the
waiver have quietly, even secretly
bought up vaccines. Even as
the EU has lost vaccine wars
despite furthering pharmaceutical
company interests, it has
claimed the moral high ground
as a major Covax donor. The
recent EU export authorisation
scheme, restricting exports,
is bound to trigger retaliatory
restrictions by others.
Incredibly, rich countries
opposed to the TRIPS waiver
proposal, particularly the EU,
now want WTO members to
instead accept its trade and
health initiative for further
trade liberalisation and removal
of export restrictions –to
address a problem of its own
making!
Biden can still lead
The Biden administration has
shown renewed commitment to
multilateralism by rejoining the
WHO, but still needs to offer
leadership beyond funding the
ineffective Covax scheme and
lifting Trump’s embargo on
exports of vaccines, vital medicines
and equipment.
One ‘people’s vaccine’ proposal
involves sharing research
results in return for public
financing. This can affordably,
quickly and greatly scale up
generic production, enabling
‘vaccines for all’ in the world at
little additional cost.
As rich country governments
have already spent to accelerate
vaccine development, they
can make this happen. As vaccine
developers do not expect to
profit much from the poor, this
will benefit many at little added
expense.
Depriving and delaying vaccines
for those with less means
has to be seen for what it is.
Such avoidable behaviour is,
frankly, nothing less than genocidal,
for causing many people
to die needlessly for IP profit.
At the forthcoming 23 February
TRIPS Council meeting,
US President Biden can secure
consensus support for the waiver
proposal, thus providing the
Rooseveltian leadership internationally
that he seems to be
emulating in the US.
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