Unlocking the IP Safe: Waiving Intellectual Property Rights for COVID-19 Vaccines

Designed by Cameron Linhares-Huang

The sweeping effects of COVID-19 and dramatic success of vaccines for the virus have ignited a new debate about intellectual property rights in medicine, as many question whether the integrity of intellectual property outweighs the potential to save lives.

Each year, global pharmaceutical companies invest billions of dollars in developing novel drugs and medical technologies to cure the world’s most pressing illnesses. In exchange for their research efforts, these companies retain intellectual property rights to their technologies in the form of patents. While these proverbial “safes” for intellectual property can protect pharmaceutical companies from copycat competitors, they also limit the products’ reach to a select group of consumers and countries. The sweeping effects of COVID-19 and dramatic success of vaccines for the virus have ignited a new debate about intellectual property rights in medicine, as many question whether the integrity of intellectual property outweighs the potential to save lives.

Vaccines and other disease prevention technologies received global patent protection through a World Trade Organization agreement in 1995. Per this agreement, companies holding the patents hold the exclusive right to manufacture, sell, or use their vaccines for 20 years. In times of global health crisis, these proprietary rights give pharmaceutical companies the financial upper hand in negotiating the price and sale of these vaccines. As of May 5th, 2021, Pfizer had earned $3.5 billion in profits from its COVID-19 vaccine because countries raced to outbid each other for the limited doses. 1 The bidding war, however, magnifies the divide between wealthy and middle or low-income countries. To keep their profits steady, multinational pharmaceutical companies must continue to look to the highest bidder, and middle and low-income countries often do not have the economic capacity to be the highest bidder. Experts estimate that this unequal auction approach to vaccines will prolong the delivery of two billion vaccine doses to middle and low-income countries. 2 The proprietary rights lead countries to overspend, overbuy, and ultimately, overlook other countries’ needs for vaccines because of the artificially limited supply. 

In October 2020, with the calls for vaccines intensifying in the developing world, the South African and Indian governments proposed an initial waiver to the World Trade Organisation. If this waiver was passed, member nations would not have to enforce the rights to the vaccine tech and would allow every state to take appropriate measures in obtaining COVID-19 vaccines in a legal manner. 3  Almost immediately, opinions were divided. Emmanuel Macron, the President of France, strongly favored the intellectual property waiver. He cited its benefit in increasing total vaccinations and the potential for a waiver to create “partnership with the poorest countries.” The priority, today, is certainly to give doses,” he emphasized. Meanwhile, pharmaceutical manufacturers fought against the waiver. The International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) argued, “Waiving patents of COVID-19 vaccines will not increase production nor provide practical solutions needed to battle this global health crisis. On the contrary, it is likely to lead to disruption.” Their alternative? “The only way to ensure quick scaling up of and equitable vaccine access to all those in need remains pragmatic and constructive dialogue with the private sector.”

The waiver did not pass. Currently, production of vaccines is concentrated in high-income countries while production by middle-income countries has been occurring at a substantially slower rate via licensing or technology transfer agreements. Vaccine inequity between higher and low-income countries is a reality. At the time this article was written, the least wealthy 52 countries had 3.3% of the world’s vaccines, but 20.5% of the world’s population. 4

Living in India over the last year, there was never a particular moment where my parents and I outright called the disparity “vaccine inequity,” but the knowledge of its existence loomed over all our conversations about a potential return to normalcy and the acknowledgement that the duration of the pandemic was likely to be different, depending on where you were located.

As Moderna and Pfizer published their first clinical trial results, I remember the initial feeling of excitement and relief that all of my friends and family felt on hearing about the success of these vaccines. However, reality soon sunk in for us, as we acknowledged that the third world was probably low on the totem pole of priorities for most of these pharmaceutical companies.

A few months later, the second wave of COVID-19 infections hit India. By the 1st of May, 2021, India recorded its largest peak of 412,262 new coronavirus cases in 24 hours. More than terrified, everyone was resigned. There were a couple of weeks where every day came with the death of a colleague, relative or another acquaintance. Oxygen shortages became the norm, and friends and relatives with oxygen cylinders were delivering their oxygen to people they knew on an hourly basis. It was utter chaos, and the end was nowhere in sight.

Meanwhile, Israel announced it had vaccinated 50% of its population, the US administered its 100 millionth vaccine dose, and pharmaceutical companies, including Pfizer and Moderna, wrote a joint letter to the Biden Administration opposing the IPR waiver proposed at the World Trade Organisation. These two events were ridiculously infuriating for so many of us in the epicenter of the pandemic. In our eyes, Israel and the US were on their way to ensuring a return to normalcy. Moreover, vaccine hesitancy in the US was unbelievable to so many people I knew. They were ready to pay thousands of rupees to help their parents and elderly relatives get the vaccine, and there were so many people treating the vaccines like they were inconsequential. 

The disjoint between high vaccine enthusiasm in the developing world and hesitancy in countries replete with vaccines is a global phenomenon. A study published in Nature in July found vaccine hesitancy was 20% lower in developing countries than in places like the US and Russia. 5 What most of us could not and would not stand was the ignorance of pharmaceutical companies to write a letter opposing an IPR waiver while the second most populated country in the world was destroyed by a virus they knew how to control. 

I firmly believe that a waiver for IPR is key to combating the pandemic today. The principle of patents is to emphasise creating useful new ideas for future generations by reducing the rate of diffusion of useful new ideas in the short run. However, during the backdrop of a global pandemic, this exchange cannot be tolerated. Right now, we will ideally enable the creation and distribution of vaccines and other treatments, not reduce its pace. Providing drug companies with the ability to slow developments down by ensuring that competition never comes into the picture and simultaneously hiking prices for the sake of upholding profits is possibly amongst the worst ways of ensuring a global recovery and return to normalcy. 6 These are extraordinary circumstances and when the world delves into chaos, the preexisting systems of law and order need modifying if we are to survive and make progress.

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