Making a killing: The imperative to waive COVID-19 vaccine intellectual property rights

By Harry Hudson

Recent lobbying disclosures revealed that over 100 lobbyists have been deployed to the World Trade Organisation (WTO) by the pharmaceutical industry to block generic manufacture of COVID-19 vaccines. The background here is that the richest countries have over half the purchased vaccine doses, yet only 16% of the global population. This has led to calls to donate vaccines to the global poor. In low income countries, only 1 in 500 adults has received a vaccine, compared to 1 in 4 in rich countries.

To really understand this you have to look far back to the emergence of the AIDS epidemic and early therapeutics. In the 1990s, Ghana and Brazil tried to import generically manufactured drugs from India (a key site of non-profit generic drug manufacture for decades). This spurred legal action taken by the US against Brazil at the WTO, though was eventually dropped under intense political pressure. As May and Sell note in their summary of the affair, for the US Trade Representative, “whatever the human costs, intellectual property rights must be upheld.”[1]

Bill Gates has also been heavily criticised for insisting that IP law is maintained. It was Gates’s foundation who persuaded Oxford University to grant sole rights to AstraZeneca without a price guarantee. His defence seems to turn on whether or not Black and Brown people are smart enough to make vaccines, maintaining, “it’s only because of our grants and expertise that that can happen at all.” Gates cannot countenance the possibility that the same forces of global capitalism that made him one of the world’s richest men also entrench and maintain poverty in the Global South, precluding improvements in health and infrastructure. Indeed, the negotiated contracts are genuinely shocking. As reported by the New York Times, Pfizer has sought liability protection (including against negligence claims) by asking governments to put up assets including bank reserves, embassies and military bases, as collateral. The deals made by AstraZeneca are shrouded in secrecy, though also seem deeply problematic.

The biggest kick in the teeth is that COVID-19 vaccination development has dispelled the greatest capitalist myth in medicine: private sector investment is needed to develop drugs, and this investment will only take place if the product can be monetised. Not only does this take a tragically reductive view of human motivations (if I cared solely about money, I’d have trained in banking not medicine and law) it is also factually wrong: in the case of Oxford-AstraZeneca vaccine, for example, the public provided over 97% of research and development costs. A case in point is that of Cuba: it has developed five vaccines, two of which are in phase III trials (of 23 COVID-19 vaccines globally). When Boris Johnson says capitalism and greed gave Britain its vaccine success, what he means is that greedy capitalists are able to monetise a product the public paid to develop, ensure protectionist IP policies prevent the global poor from access, then take the profits. It is on this background that we must judge why 85 countries (including almost all of Africa) likely won’t even have vaccines until 2023.

Vaccine makers have complained to US officials that waiving IP rights will risk handing novel technology to China and Russia. This technology could be used for other vaccines, or even therapeutics for cancer and cardiovascular issues. Indeed, one feels a palpable sense of disgust just reading such articles, that the lives of citizens in those nations matter so little compared to the possibility of pharmaceutical company shareholders enriching themselves. That any breakthrough with those technologies in Russia or China could benefit people everywhere is irreconcilable with their profit motive.

So, I am led to ask, what should be done? As I write this blog post, a letter has just been published by over fifty British parliamentarians calling for, inter alia, a TRIPS waiver. For the purposes of this blog, this is essentially a derogation from IP law, allowing generic manufacture for a specific time period. Six months on from India and South Africa proposing a TRIPS waiver, backed by over 100 countries, Britain along with a small number of governments including the US, are stonewalling the proposal. A TRIPS waiver is the only way to appropriately match the global efforts made on vaccine development, granting a worldwide right to use, produce and supply the vaccine.

Some will point to COVAX, the World Health Organisation initiative to to accelerate equitable distribution of vaccines and therapeutics to the global poor, yet on data published last week commitments only reach USD 14.1 billion of a budget estimated at USD 38.1 billion. The problem though isn’t about the who isn’t being charitable enough, the problem here is a question of money and power. The richest get to make racist allegations that non-white people are inadequate to make vaccines, whilst watching their own bank balances skyrocket. They can point to philanthropic endeavours, yet COVAX is already showing that these are underfunded. The ethical imperative is not to have more donations of vaccines, but to address the imbalance of power between nations that causes the very issue of vaccine inequity — this means confronting IP law. As Médicins Sans Frontières detail in their explainer, it is a myth that manufacturers in the global south are unable to produce vaccines — this presumption has been repeatedly proven wrong, from Hepatitis B in 80s India, to pneumococcal vaccination in China and South Korea. The technology to save lives exists; its just that those states with the most influence over IP law do not care.

To put it most succinctly, why waive IP rights? Why is that more ethical than donating vaccines? Ignoring the empirical motivations on expanding capacity, it is simply this: health is a human good irreducible to the language of costs. People come before profit. Rather than white saviours vaunting their already inadequate contribution, we need global solidarity through information and technology sharing. Despite 175 former world leaders and Nobel laureates calling on the US to lead on waiving IP rights, I am pessimistic about the likelihood of this succeeding. The permeation of neoliberalism — “[a] programme for destroying collective structures which may impede pure market logic” — is anathema to the global solidarity ethically required. As I write the paper that will come from this blog, I am left with one depressing thought: they really are making a killing.


Paper title: In preparation

Authors: Harry Hudson

Affiliations: University of Bristol; North Bristol NHS Trust

Competing interests: None

Social media accounts of post author(s): @h_hudson_

[1] Christopher May, Susan Sell, Intellectual Property Rights : A Critical History (Lynne Rienner 2005) 1-2

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