IPRs to Leave Their Comfort Zone

Introduction:

While facing a bolt from the blue in the form of the devastating COVID-19 pandemic, when the repurposed drugs and the vaccines that are getting developed by the incessant efforts of health professionals around the globe, were the only hope, the access to the vaccines, therapeutics, and diagnostics was hindered by the intellectual property rights (“IPR”/“IPRs”) like patents, copyrights, trademarks, trade secrets, etc. associated with them. In order to overcome the barrier of IPRs for ensuring timely, equitable, and affordable access to the vaccines, therapeutics, and diagnostics by expanding their supply and reducing prices, India and South Africa had put a temporary Intellectual property (“IP”) waiver proposal (“the proposal”) in October 2020, before the World Trade Organization (“WTO”). Although, Article IX of the Marrakesh Agreement makes provisions for a waiver from certain obligations of the Marrakesh agreement or any other multilateral trade agreement in exceptional circumstances and Doha Declaration has already asserted the primacy of the measures for the protection of public health taken by the member nations over the TRIPS agreement,  the call for such IP waiver is always associated with the tug of war between strong IP protection conferred by the TRIPS agreement and the protection of larger public health by mitigating the impact of IP rights. The same is the case with the proposal and its unanimous acceptance is still awaited. This write-up attempts to discuss the point of view about the IP waiver and the incidences related to it.

 

Overview of discussions about the IP waiver:

IPRs to Leave Their Comfort ZoneThe major challenges in the access of vaccines, diagnostics, and therapeutics are availability, cost, barriers to local production, and logistics infrastructure challenges. Among these, the first three challenges can be dealt with by the IP waiver. Opponents of the proposal (“opponents”) often argue on the basis of the problem of recoupment of their investments in research and development in the absence of IPs, the inability of IP waiver to address the issues regarding logistics and infrastructure at the domestic level, and already existing flexibilities in the TRIPS agreement (e.g. Compulsory License). With respect to the first objection, proponents of the proposal (“proponents”) have noticed that in the COVID-19 context, several projects are government-funded or public-funded hence should aim at the larger public good. The problems of logistics and infrastructure are to be dealt with other appropriate means as they do not come in the ambit of IP. TRIPS flexibilities have so far undoubtedly promoted access to medicines, but their use has always been subject to product-by-product and case-by-case basis, tremendous pressure from international entities, need of suitable provisions in national laws, institutional capabilities, and time-consuming procedures which is not expected as the solutions to the problems emerged from the pandemic are to be sought by leaps and bounds.

In May 2020, WHO had launched COVID-19 Technology Access Pool (“C-TAP”) to encourage the voluntary sharing of IP, technical knowledge, and other relevant data necessary to tackle COVID-19 but to date, not a single company had committed to the C-TAP. Also, it has been observed that developed countries have more than sufficient stocks of vaccines whereas the low and middle-income countries face a paucity of vaccines. On the background of such things, IP waiver, according to its proponents, will be effective access to concerned knowledge which can bolster up the manufacturing of vaccines and other medical tools without cumbersome legal hurdles.

In spite of the fact that IP waiver alone is not sufficient to empower manufacturing of vaccines and necessary medical tools and effective implementation as well as the success of the IP waiver depends on a variety of other factors, the potential of the IP waiver to address some issues in order to combat the pandemic effectively, cannot be denied.

Recent developments:

As time passed, the proposal has been revised and after about 7 months of the onset of the proposal, something positive has been come off. In the first week of May 2021, WTO Director-General appealed to the member countries to undertake the negotiations with respect to the revised version of the proposal to waive IP protection of COVID-19 related technology, in accordance with the urgency of the situation, in order to arrive at a cogent conclusion which will strike a right balance and be acceptable to all. On May 05, 2021, in spite of the pro-IP approach, the United States(“US”) has announced the support for waiving IP protection for COVID-19 ‘vaccines’ only after assuring the vaccine supply for the American people. But still, there is ambiguity regarding the waiver of IP protection in therapeutics and diagnostics other than vaccines. Recently, in the third week of May 2021, China announced its intention to support the IP waiver and also promised to supply 10 million vaccines to COVAX (a global vaccine distribution campaign backed by the WHO). Hence, in a way, the proposal has set a precedent for a better future.

Conclusion:

Fritz Machlup rightly said that if we did not have the patent system, it would be improper to recommend instituting one. But at the same time he also said that, since we have had a patent system for a long time, it is irresponsible to put an end to it. The IPRs have crucially been the incentive to invent, but upholding fundamental human rights while enforcing IPRs, is just like walking a tightrope. When there is nothing important to mankind but to survive and knowledge is the only weapon to ensure survival, the IPRs should leave their comfort zone to diversify the horizons of knowledge throughout the world. In other words, innovation has to be open and accessible to the global community to deal with this cataclysmic pandemic. In the present case, only time will tell, how and when the IP waiver will be unanimously approved and how well it will get implemented in the future. But this is time for us to reiterate the old saying,

अयं निजः परो वेति गणना लघुचेतसाम् ।

उदारचरितानां तु वसुधैव कुटुम्बकम् ॥  (Referece: Panchatantra)

[Meaning: “He is my own and the other one is the stranger” is the counting of narrow-minded people i.e.narrow-minded people discriminate in their conduct, between those who are of their acquaintance and those who are not. But for broad-minded people, the entire world is a family i.e. they treat everybody with equality.

Author: Gayatri Joshi, a student of IIT Kharagpur, an intern at IIPRD. In case of any queries please contact/write back to us at aishani@khuranaandkhurana.com.

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