Experts weigh in on Covid-19 intellectual property rights waiver

Experts weigh in on Covid-19 intellectual property rights waiver


DURBAN – WHILE the US government’s support of the World Trade Organisation (WTO) waiver proposal for intellectual property rights for Covid-19 vaccines is an important step forward, a number of issues need to be clarified.

This is according to Professor Yousuf Vawda, who is a Senior Research Associate at UKZN’s School of Law, and a member of the Active Citizens Movement.

Reuters reported that US President Joe Biden on Wednesday voiced support for a waiver in a sharp reversal of the US’s position, and his top trade negotiator, Katherine Tai, swiftly backed negotiations at the WTO.

Vawda said this did not mean that the proposal had been passed. He said the US was supporting a watered-down version of the waiver sponsored by South Africa, India and about 50 other countries.

“The SA-India proposal asks for the suspension of the intellectual property rights in respect of all products needed for the prevention, treatment and containment of the Covid-19 pandemic,” said Vawda.

This includes personal protective equipment, testing kits, medicines to treat those infected and vaccines, but the US statement only covers Covid-19 vaccines. He said negotiations taking place this month and in June would have to address this gap.

Unpacking what the waiver means, Vawda said that if approved, all countries and manufacturers, such as those who made generic drugs, could make vaccines and other health products legally without breaking the patents and other rights of branded manufacturers such as Pfizer, AstraZeneca or Johnson & Johnson.

“Countries would still have to make some changes to their national laws to put this into effect,” he said.

Vawda added that it was not known if pharmaceutical companies would willingly share the “recipes” for the vaccines, or the specific know-how regarding their manufacture.

“They usually guard them as ‘trade secrets’ so that their competitors cannot manufacture them. Thus, that could be another hurdle and may require court action to compel them, in the interests of addressing a global health emergency.

In an ideal scenario, the companies would share the ‘recipes’, manufacturing processes, as well as assist new manufacturing plants to get up and running through a technology transfer. Or they could be shamed for putting their profits before people’s health.”

“Now that the US has taken a small, tentative step on the road to vaccine equity, all countries should support the waiver and, together with vaccine manufacturers, act with urgency to achieve this goal,” he said.

Brook Baker, a professor at the US’s Northeastern University School of Law, said that while South Africa had played an important role in leading the fight for the vaccine waiver, the country had failed to enact promised domestic intellectual property law reform that would allow it to take advantage of the waiver when passed.

“This ‘own-goal’ must be reversed if South Africa is to fully benefit from the WTO waiver proposal, and the new willingness of the US and others to engage in textual negotiations,” he said.

Baker said that in practical terms, the waiver changed the power dynamics and removed “Big Pharma” from the driver’s seat in terms of controlling vaccine supply, price and distribution. “Its control in the past has led to artificially limited supplies, needlessly high prices and grotesquely inequitable distribution,” he said.

Baker hoped that the “limited” support from Biden, which spoke to patents on vaccines, would bring vaccine manufacturers to the bargaining table.


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