TRIPS and COVID: Nobody is safe until everybody is safe

Read the statement in German

Current global architecture on intellectual property is a threat to public health

At a time when the COVID pandemic has now cost more than 2.5 million people their lives, many more have lost their livelihoods. The main collective challenge of human kind today is to bring it to an end. However, while the richest part of the world may see a glimmer of light at the end of the tunnel, more than half of the globe is facing a sinister scenario. 

This calls for the use of all means possible to fight the pandemic through vaccines and medicines and requires bold initiatives that are needed to bring all of us out of the danger zone. Unfortunately, they who claim to represent us do not live up to the challenge. The rejection of the proposed suspension of intellectual property rights on vaccines, testing equipment and medicines that we hear from the European Union is a disgrace and must be reversed. 

Vaccine as a universal, common good – or not

The European Commission’s President Ursula von der Leyen struck the right tone in April 2020, when she stated: “We need to develop a vaccine. We need to produce it and to deploy it to every single corner of the world. And make it available at affordable prices. This vaccine will be our universal, common good.”

Unfortunately, this statement will go down in history as mere hypocrisy, if the current stance of the European Union is maintained. The World Trade Organization is currently discussing a proposal to waive intellectual property rights to make way for massive production of vaccines, testing material and medicines. All things considered, the proposal from India and South Africa makes sense. A few pharmaceutical companies cannot be allowed to hold a monopoly on the production of the means necessary to fight the pandemic, and their claim to ownership ring hollow in light of the massive public funding of development, research, and production of practically everything related to the fight against the virus. 

Charity is not the solution

To enable global delivery of the vaccines, the EU strategy is currently about charity. But nothing suggests that this brings us anywhere close to a solution:

– The dispatch of vaccines from the COVAX facility, based mainly on countries’ donations, only began slowly in late February. Finishing the job in that manner will take years. 

– A few big companies, including Big Tech firms, have made financial donations to the cause, but more than anything, that appears to be a PR exercise. 

– There are no significant signs that pharmaceutical companies will live up to the responsibility they have been given. A statement from the European Commission that pharmaceutical companies are expected to “commit to the goal of universal and affordable access to diagnostics, treatments and vaccines,” ring hollow in light of the less than modest donations from the patent owners so far, and – first and foremost – they cling on to their monopolies the best they can.

Monopoly through patents is the core of the problem. Worldwide there are plenty of producers that stand ready to deliver billions of vaccines. Fully equipped factories in several countries await the final development of a vaccine, or await the outcome of negotiations with patent owners. Suspending intellectual property rights would shorten the pandemic.   

Hand in hand with Big Pharma

Still, the representatives of the European Union have fought the proposal vigorously, and they have shown us once more, that when it comes to trade policy, the interests of corporations take precedence of all other considerations, including public health. 

It is not the first time that contradictions between public health and intellectual property rights have become so painfully visual. 20 years ago, the WTO saw a clash between developing countries and the WTO rules in the TRIPS agreement on the issue of antiretroviral drugs against HIV/AIDS which kept treatment out of reach of millions of the infected. On that occasion, the EU, the United States, and others were forced to accept some flexibility. 

While a step forward, it should be clear to everyone, that the current global architecture on intellectual property rights represents a threat to public health. Exceptions negotiated back then are insufficient, not only in times of a global emergency, but each and every day. They do not provide sufficient space for the provision of cheap medicines, and they have not been able to stop the campaign of Big Pharma and their powerful political allies to do away with generic production. 

Undermining flexibility

The European Union is one of a few global powers with a major responsibility for that development. For the past decades, we have seen the European Union in a blind or ruthless quest to support big pharmaceutical companies with onerous intellectual property rights. Not only did the EU fight at the negotiating table to keep the exceptions to the TRIPS agreement to a minimum, our representatives went straight on to do their best to undermine those very exceptions through bilateral trade agreements.

Currently, the condition for using the exceptions is that it is possible to make use of a ‘compulsory license’. Knowing very well that the precondition for this is access to data from the originator, the EU has worked systematically for two decades to reach agreements with as many trading partners as possible to have them accept ‘data exclusivity’, rendering the exceptions under the TRIPS agreement null and void. 

That mind-set has brought us to where we are today: the outrageous position of the EU to the proposal to waive intellectual property rights is a culmination of a trade policy that put profit well before public health. And with the COVID pandemic it is brought to an extreme. It is wrong not only for moral reasons, it is disastrous for all of us. To accept that vaccines will only reach about half the countries in the world by 2023 is to say we accept the risk of new variants that could undermine the existing vaccines. 

Time to change EU trade policy

This is the time, then, when we need to change EU trade policy. The global regime of intellectual property rights on pharmaceutical products has been proven dangerous, and the search for new formulas must begin immediately. There is a need to acknowledge that generic production needs to be enabled. We need to make considerable space for sharing technology. It is necessary for public health in the Global South, as well as the Global North, where excessively high-priced medicines are threatening the affordability of healthcare systems. It appears to be the only way we can live up to our human rights obligations. The TRIPS Agreement must go, and we must start afresh. 

For that process to begin, we need change in the European Union. As a first urgent step, we must make our representatives support the waiver proposed by India and South Africa. As a second step, we need to start working towards broader reforms of the rules on intellectual property rights, both globally and at home. 

Signed by