In 1995, the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was established which is a key instrument to harmonize intellectual property (IP) protection by imposing binding obligations on member countries to ensure a minimal level of protection.

Since then, the impact of TRIPS on people’s right to health hasn’t stopped. Supporters say that IP protection accelerates innovation and it should be strengthened from time to time through international and national laws, while critics believe that IP rights such as patents, hinder the accessibility, development, production of vaccines and drugs in countries and deny people their right to health.

Now as the world fights with the COVID-19 pandemic, the treatments and vaccines which have been developed to protect us from COVID-19 are subject to patent protection under the TRIPS agreement. Only the patent owner has the exclusive rights to exploit the patent i.e., use, sell, produce, manufacture, distribute, license, etc. for a limited term of 20 years. However, this type of protection delays accessibility (of vaccines, in the current scenario) to a wider public. This is vital because of the issues concerning vaccine nationalism, where richer countries are procuring vaccines for their population and could disrupt the goal of delivering 2 billion vaccines to poor and middle-income countries. In this context, India and South Africa at WTO propose a temporary Intellectual Property waiver on COVD-19 drugs and vaccines. The proposal which was put forth before WTO was under Article IX:3 and IX:4 asking for a complete waiver of the patent obligation under TRIPS agreement for COVID-19 vaccines. The proposal argues that IP rights could hinder the accessibility of vaccines at affordable rates. The TRIPS Council has discussed the proposal both formally and informally while arguing that IP rights foster research and innovation and if those rights are suspended, it won’t lead to a surge in the manufacturing of vaccines. Usually, Research and Development costs are recouped by setting high prices for medication and having rigid patents, but in the current scenario, this argument fails as most of the vaccines were entirely funded by governments through taxpayer money.

Although TRIPS provides a provision for “adequate remuneration” to be given to the patent holder depending upon the economic value of the authorization, it doesn’t provide the exact definition of “adequate” and how to ascertain the economic value of the authorization. The real risk behind not granting the waiver or obtaining a compulsory license is that of alienating pharma companies as it can harm the indigenous industry in developing countries by destroying jobs and investments. Moreover, compulsory licensing is itself a time-consuming and complex procedure. In earlier situations, it is evident that it has taken few years for the medicine. For example, it took upwards of 4 years for the generic AIDS medication to reach Rwanda. According to a report, currently, pharma companies are showing leniency and are not looking to make high profits, but they might.

Nations like Canada pre-ordering vaccines ten times their population, will there be the availability of vaccines in economically weaker countries?

Is a waiver of IP rights necessary?

According to Oxfam, developed or rich countries (13% of the population) have bought more than half of the supply of vaccines. This automatically means that richer nations will have more access and will be at the top while the weaker countries will struggle to procure vaccines.

Considering these exceptional circumstances such as the COVID-19 pandemic, with each day passes several thousands of lives are lost, WTO has to decide whether protecting IP in a free market is important or Right to Health?

A case for Compulsory Licensing of COVID-19 vaccines
By Divyansh Sehgal, Senior Legal Analyst, Sanrachana