Where the Debate over Intellectual Property Protections for COVID-19 Vaccines Stands One Year Later: Highlights from an Expert Panel Discussion -…

By Michael Rosen

On June 21, 2022, AEI hosted a panel to discuss a compromise at the World Trade Organization (WTO) to partially waive Trade-Related Aspects of Intellectual Property Rights (TRIPS) for COVID-19 vaccines. The panel consisted of Komal Kalha of the International Federation of Pharmaceutical Manufacturers and Associations, Patrick Kilbride of the US Chamber of Commerce, James Love of Knowledge Ecology International, and Zain Rizvi of Public Citizen.

Below is an edited and abridged transcript of key highlights from the panel. You can re-watch the full event on AEI.org and read the full transcript here.

Michael Rosen: James,what compelled you to generally favor the framework that emerged from the WTO?

James Love: The modified waiver just covers vaccines, whichis good because were currently looking at vaccinating the whole planetpossibly more than once a year. Thats a massive and expensive undertaking, andyou see a big difference in costs across countries. The US is pulling a lot offunding right now, as are the Europeansbut they didnt put up that much moneyin the first place for foreign vaccinations. They put up a lot of money for USvaccinations, but that money is going to be harder to come by. Its one thingin the middle of a pandemic to say, No ones safe until everyones safe, solets try and vaccinate everyone. Lets share some of our production. Lets sharesome money. Its an entirely different thing to say, Lets do it for the next10 years with the Europeans and Americans footing the bill for countries thatcant afford it. That didnt really happen last year, but its certainly notgoing to happen for the next 10 years, especially considering that everyone isessentially a candidate for vaccination noweven young children.

Trying to vaccinate the whole planet once or twice a year isa pretty massive undertaking. But here is the problem: The Baylor vaccine,which is open-source, is available for less than $1 a jab in India. Then youvegot Pfizer and Moderna claiming their nonprofit price is $7 a jab in developingcountries. For most of us in the West, the difference between $1 and $7 isntbig, but it would be if youre trying to vaccinate a whole country in aresource-poor setting.

Patrick, where do yousee the fault in the pro-waiver arguments?

Patrick Kilbride: Pro-waiver advocates provide four compellingarguments. First, theres the idea that from a moral perspective, intellectualproperty (IP) and the exclusivity it provides should not be a barrier to newtechnologies or products of those technologiescertainly not in a pandemic. Thesecond point is that technology transfer is a social good that should bepromoted, cultivated, and facilitated. The third is that its beneficial tohave widespread production capacity for emerging technologies to be able toreproduce quickly at scale. Lastly, many places around the world have thisproduction capacity.

The true problem is with the conclusion that the waiverproponents have drawn. They believe that waiving IP rights will do those fourthings without making the case that IP had even been a barrier to begin with.They didnt show anyone actually trying to scale up technologies and use theexisting flexibilities within the TRIPS but say, We just cant do it. IP hasbecome the overriding obstacle.

Moreover, I would argue that the waiver itself would becounterproductive to those four points. If you want local production,technology transfer, and to grow capabilities worldwide to reproduce newtechnologies at scale, the way you get there is by integrating more global playersinto the ecosystem for innovation. IP rights play an indispensable role inmaking that possible because of the basic economic functions of IP. The sort ofconventional wisdom today is that IP comes after innovation. Its a discretionaryreward that governments give as sort of a good job, champ! So I think wevegot the vocabulary of IP entirely wrong since the real function of IP comes at thefront end.

Komal, as the otheranti-waiver advocate, how would you describe your position and why?

Komal Kalha: There is an acknowledgement by WTO memberstates that IP is a barrier without any evidence. In fact, theres evidence tothe contrary, which is problematic because this sets the tone for futurenegotiations. If you buy into that misgiving, we may not have the quickestresponse in future pandemics. 18 months ago, we didnt have a single product onthe market to combat COVID-19. Today, Moderna, Paxlovid, and Pfizer arehousehold names. Strong IP protections made that possible.

The second reason is the problem with this notion that technologytransfer will suddenly happen. Its already happening; it happened even beforeIndia and South Africa put in their waiver provisions in October 2020. Today, thereare 380 technology agreements, of which 88 percent are technology transferagreements for vaccines and therapeutics. Thus, the purpose of the waiver isnot served because it was already served before the waiver.

I think the WTO has actually walked away from the responsibility it has in addressing the real barriers. At the start of the pandemic, my company did work a lot with the WTO regarding the supply of materials to make vaccinesbecause there were 283 trade barriers. There are still about 60 in place. Moderna was not allowed to export outside the US. India, during the second wave, put in place an export restriction even though they were a major supplier through COVAX. That restriction was in place for nine months, but the second wave lasted for only four.

The Indian minister himself said, We have a lot of vaccineslying on our shelves that are going to get wasted. So why are we talking abouta vaccine waiver if were going to be throwing stuff away? The second thing isthe supply chain constraints weve had. For example, I think Pfizer had to usedrone services to get vaccines to people in Africa. The WTO needs to focus onstrengthening healthcare, but they havent addressed that.

In short, people are buying into this notion that IP is abarrier and the waiver is this silver bullet that will sort everything out. Butwe havent sorted out supply issues, the shortage of skilled workers, or how thevaccine rollout is actually going to happen. Vaccination is the issue, not vaccineproduction.

Zain, youreanti-anti-waiver, but not pro-waiver. Where do you stand on the WTO compromise?

Zain Rizvi: I think this moment really is an extraordinaryfailure. At a deeper level, the waiver is emblematic of the following question: Should international lawtell sovereign nations what they can and cannot do with respect togovernment-granted monopolies in a public health emergency?

TheWTO agreement that was recently revealed seems to suggest the answer is, Yes,international law should be allowed to dictate sovereign responses bygovernments to public health crises when it comes to awardinggovernment-granted monopolies. This is painful because people in the West havemoved on in large part because we have treatments and resources. That is notthe same reality that billions of people in the world have right now. So notonly did the waiver fail to really do much on vaccine production, it has alsofailed to do anything on treatments and tests, which are actually the mostpressing needs. Thats where we have the starkest inequality.

Not to get too philosophical, but a constructive way of thinking about this is by asking what IP really is. One way to think about IP is through the lens of power. Who gets to control decisions about how health technologies are produced, at what price, for whom, and where? We have seen the superiority of mRNA vaccines due to their adaptability and ease of production. Out of all the partnerships that have been announced, the drug substance production for mRNA vaccinesbasically the meat of vaccine productionis still occurring in Germany, Spain, Switzerland, and the US; its not occurring in the Global South. Why is that? Why is the most promising technology we have all benefited from not available for people in the Global South to make themselves? Why do they not have the right to production? And what makes this particularly sad is that people in the Global South both want to and are capable of making mRNA vaccines. So Id conclude by saying there are abstract debates about IP and what role it should have, but I think it really helps to illustrate what it actually means.

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Where the Debate over Intellectual Property Protections for COVID-19 Vaccines Stands One Year Later: Highlights from an Expert Panel Discussion -...