The tussle between the developed and developing countries for covid 19 vaccines
has just begun. Believed by many that it is not the beginning of the end of the
pandemic but the beginning of endless wait for covid 19 vaccine. The vaccines
are not enough even to go to the richest countries around the globe along with
poor countries. 7.8 billion people are living in a world in the grips of a
pandemic and vaccines for only 650 million of them, produced and distributed by
only a handful of large pharmaceutical companies, and so far distributed mostly
to rich countries of the world. If and when governments should intervene to
ensure affordable supplies of medicines is a long-standing issue, but it may be
a global pandemic that focuses minds on whether Big Pharma has the whole world
exactly where it wants it.
To change this monopoly, countries like India and South Africa are aiding the
World Trade Organization to introduce a temporary patent waiver for producing
COVID-19 vaccines. In October 2020, the joint statement was given by India and
South Africa to The World Trade Organization (WTO) to exempt manufacturer
countries from enforcing some patents, trademarks, trade secrets, or
pharmaceutical monopolies on the covid 19 vaccines under the organization’s
agreement on Trade-Related Intellectual Property Rights (TRIPS).[i]
statement was made in order to make covid 19 vaccines affordable and accessible
to the least developed countries and developing countries. The waiver could be a
first step towards distributing vaccines more uniformly. Also, in the joint
statement, it was said that the exceptional circumstances created by the
pandemic and argue that intellectual property protections are potentially
hindering timely provisioning of affordable medical products. The idea is to
allow other countries to make their versions of vaccines and increase
production, it is essential to winning the race against time with a mutating
virus, but so far without success. A patent waiver would help overcome certain
legal barriers preventing developing countries from producing their vaccines.
If WTO accepts the proposal given by the joint statement, then the member
countries could make the generic versions of any coronavirus vaccines and covid
If WTO waives off the patent right on covid vaccines, then India can make Covid
– 19 vaccines into generic medicines due to which a larger number of populations
would get the much-needed relief from the vaccines at an extremely lower rate.
India can emerge as the leader of the developing nations if India doesn’t budge
from its stand and continues to consolidate the crisis-stricken poor countries.
This could set a precedent for making the IPR norms of WTO flexible and pliant
for any such future exigency. The medicinal hegemony of the developed nations
would also be challenged who have succeeded through the years the unjust share
of similar innovations.
The vaccines developed by the companies which are based in developed countries
have manufactured vaccines with the help of tax payer’s money. Those vaccines
essentially belong to the people – and yet the people are supposed to pay for
the vaccines again, and with little prospect of getting as many as they need
fast. Around 90 billion pounds of public money has gone into developing COVID
treatments and vaccines, and the public must have a stake.
The joint statement was opposed by the United States, the European Union,
Britain, Norway, Switzerland, Australia, Brazil Japan, and Canada and major
pharma companies are opposing it too because these countries don’t want to leave
the monopoly. The longer-term plan of the manufacturer countries is to increase
the price of the vaccines after the most urgent phase of the pandemic is over,
due to which developing countries need to, gain the ability to produce these
There's another aspect that is if developed countries
increase the knowledge of vaccine production in other parts, or all parts of the
world, developing or poor countries can be much better prepared for the next
The European Union argues that there was no indication that intellectual
property rights issues have been a genuine barrier about covid-19 related
medicines and technologies. The British mission also agrees to the waiver of the
proposal because it is an extreme measure to address an unproven problem.
The US trade representative said that protecting intellectual property rights
and otherwise facilitating incentives for innovation and competition was the way
to ensure the swift delivery of any vaccines and treatment.
One government that signaled it may rethink its opposition to the waiver is the
Biden administration. Outside pressure on the US has been mounting over 170
former heads of state and Nobel laureates, as well as a series of US lawmakers
and global organizations, have called on the government to reverse its veto.
In recent days, the EU and UK have been taking the wrong kinds of jabs at each
other over frustrations around vaccine supply, but there is of course a bigger
The global capacity for producing vaccines is around 3.5 billion, while 10
billion is needed. Additionally, these vaccines are produced and supplied in
wealthy countries and are kept by those wealthy countries. Developing nations
are saying, they need to have a share of the pie, not only the share of the
vaccine but also the share of the right to produce these vaccines. To make a
vaccine, they need to have the right to produce the original substance, which is
protected by patents.
Developing or poor countries also need to know how to make
them, because the technology can be complex. The World Health Organization does
not have the authority to save that patent, but it's trying to bring countries
together to find a way to bolster vaccine supplies.
Based on Pfizer's and Moderna's stated vaccine–production capacity and their
supply deal with the United States and the European Union, as well as Japan and
Canada, that these countries can expect to have 50% of their populations covered
by the end of 2021. Considering that 82% of the vaccines Pfizer says it can
produce through next year and 78% of Moderna's vaccine, have already been sold
to rich countries. This shows the shortage and delay of the vaccine for poor and
AstraZeneca has struck deals with manufacturers of poor or developing countries
like India and Latin America as well as Gavi to help poor countries get access
to its vaccine. It has also committed not to make a profit from its vaccine
during the pandemic – though according to a Financial Times report based on
company documents that AstraZeneca has retained the right to declare the end of
the pandemic as early as July 2021, and the company estimates that it will be
able to make three billion doses by the end of 2021 which will cover only 20% of
the world’s population.
What Is IPR
Meaning of IP: intellectual property is an intellectual work that is produced by
the intellect of the human brain. For example, literary work, musical work,
Intellectual property is intangible property. It is described as property
because it can be sold, purchased, mortgaged, etc. The person who creates an
intellectual piece of work owns it like any other tangible property just like
land or movable goods.
The owner of intellectual property has absolute rights
over his intangible property. No one can use intellectual property without the
consent of the owner. The exclusive rights which the person enjoys for his
intellectual property are his/her ‘intellectual property rights.' Intellectual
property is the outcome of intellectual activity in the industrial, scientific,
and artistic fields. Intellectual law aims at protecting the creators and other
producers of intellectual goods and services. Intellectual property rights (IPR)
give the originator an exclusive right over the use of his/her creation for a
In the Paris Convention for the protection of industrial property[ii] and the Berne Convention for the protection of Literary and
Artistic Work[iii], the importance of intellectual property was first
recognized, which are administered by the World Intellectual Property
Organization (WIPO). WIPO is one of the oldest agencies created in the year 1967
to keep encouraging creativity and promotion and protection of intellectual
Every 26th of April is celebrated as World Intellectual Property Day.
The law that protects the intellectual property rights is known as intellectual
property law, for example, copyright law protects the copyright of authors,
musicians, etc., patent law protects the invention of the inventor, trademark
law protects the trademark.
Intellectual property law is divided into two heads
Intellectual property law relating to copyright includes original works of
literary works, musical works, dramatic works, artistic works.
- Industrial property:
Intellectual property law relating to industrial property includes patents,
trademarks, and industrial design. Protection of distinctive signs, in
particular trademarks and geographical indication. Trademark is a symbol to
differentiate between the services and goods which are given by a certain
company, for example, logos of Nike, Mc Donald’s, BMW, etc. A geographical
indication is a mark to show the particular product is originating from that
particular geographical area and the characters can be attributed to that
geographical area. Patents protect innovation, design, and the creation
WTO’s agreement on TRIPS negotiated during the 1986-94 Uruguay Round, introduced
intellectual property rules into the multilateral trading system for the first
time, it aimed to order, predictability, and settle disputes more
systematically. Before the TRIPS agreement, there was no other convention that
took into consideration IPR and more than 40 countries of the world did not
grant patent protection for pharmaceutical products.
TRIPS agreement requires all WTO members, with few exceptions, to adapt their
laws to the minimum standards of IPR protection.
India And IPR
India is a member of the world trade organization and is committed to the
agreement on trade-related aspects of intellectual property (TRIPS agreement).
India is also a member of the world intellectual property organization. The
national intellectual property rights (IPR) policy 2016 was adopted in May 2016
India has a clarion call, Creative India, Innovative India
. This policy brings
to a single platform all IPRs, considering all inter-linkages, and thus aims to
create and exploit synergies between all forms of intellectual property, and
concerned statutes and agencies. The nodal agency for this is the Department for
Promotion of Industry and Internal Trade (DPIIT) which oversees the policies and
makes sure that India is obligated by the TRIPS agreement. Under DPIIT, Cell for
Intellectual Property Right and Management (CIPRM) was created which is an
Challenges Before Wto And Trips
- The most insurmountable challenge now is to bring both developed and
developing countries under one roof and on the same page to negotiate
- Countries in which drugs are relatively cheap, such as India, face
another kind of challenge: attempts to overturn the laws that make those
drugs accessible there for example there was a company Novartis, a Swiss
pharmaceutical giant, fought a decade-long battle to secure monopoly control in
India over its treatment for leukemia, and in this process, it tried to have
Indian patent law[iv] struck down the and unconstitutional, although it did not
- The crises of access to affordable medicines also affect countries
whose governments defend extensive intellectual property protection for
companies, for example, insulin in the US can be punishingly expensive.
- Delay of the entire process of the distribution of vaccines for covid –
19 is a massive hindrance.
- Under the TRIPS regime, there are various tools such as
compulsory licensing that are available to assure access to
medicines. Compulsory licensing is when the government allows other
people to produce a patented product without the consent of the
manufacturer or patent owner.
- Society needs to respect innovations and therefore amend laws.
For example, India generated its covid – 19 vaccines ‘COVAXIN’, which is approved by
WHO for use in India but not granted EUL status.
- One more method by which accumulation and circulation of
innovative products can be ensured is by creating a pandemic patent
pool. It would be a fruitful endeavour to create a global pool of covid-19-related innovations or
innovations related to a rare pandemic, in respect of vaccines and medicines. In
the pandemic patent pool, aggregation, administration, and dissemination of the
license will take place. The creation of a pool and immediate licensing will
ensure that there are hundreds of manufacturers in the world. with the help of
this pool, vaccines and medicines will be quickly available.
Several effective COVID-19 vaccines have become available. At the same time, new
variants have emerged recently and there's fear that existing vaccines may be
less effective against them. Against this background, international trade rules
for vaccines have become a contentious issue. Recently the European Union
imposes some export restrictions, although they were forced to backtrack in the
case of Northern Ireland.
The UK is said to be considering restrictions as well.
At the other extreme, India, which is a major vaccine manufacturer has been
engaging in vaccine diplomacy giving millions of doses of the vaccine to
neighbouring countries, even though it has barely gotten the domestic
vaccination program off the ground itself. One important issue has been
intellectual property protections or patent rules for COVID-19 vaccines and
The WTO agreement on intellectual property protection is the
trade-related aspects of intellectual property or TRIPS Agreement. India and
South Africa floated the idea in October of a waiver that would override patent
rules allowing generic or other manufacturers to make vaccines and drugs. The
proposed waiver, would last until the world has had immunity and the pandemic is
declared over, and many developing countries have come out in favour of this.
The proposal was opposed by the United States UK Switzerland, basically
countries with significant pharmaceutical industries. The WTO has delayed the
discussion of this proposal and it appears to be at an impasse. So is the waiver
a good idea, pharmaceutical companies that develop the vaccines have argued for
the enforcement of intellectual property protection, it's a familiar argument
that not allowing companies to profit from the fruits of their invention would
blunt the incentive to invest? For instance, the CEO of Pfizer claimed that IPS
were brought a solution to the pandemic in the first place.
And we may well need
the ingenuity of these companies, even in this pandemic, if new vaccines are
needed to control the variants. It's also worth noting that some companies
proposed to sell the vaccine at cost, while the pandemic lasts and adds cost to
poor countries even after that. Moreover, those opposed to waivers argue that
the TRIPS Agreement already has mechanisms within it, to enable countries to
compulsorily licensed patented products, but the process is both cumbersome and
there's some ambiguity when it comes to cell lines needed for vaccines.
also point to voluntary measures donations to the WHO COVAX facility as an
alternative. The main issue is the need to get the vaccine to people everywhere,
quickly. The new variants have changed the calculation. So long as the virus
keeps raging through the world's population, new variants will continue to
arise, and they will then inevitably spread everywhere so it's important to use
all the world's production capacity as speedily as we can.
Spreading up the
production also protects against the dangers of vaccine nationalism, of which we
have already seen worrying signs, whether it's the TRIPS’ waiver or some other
emergency mechanism that protects the profits and property of the vaccine
developers, such as governments, collectively purchasing patterns and licensing
them to producers, the need to expand and globally diversify vaccine production
could not be more urgent.
- Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr.
- Paris Convention for the Protection of Industrial Property (March 20,
1883; effective July 7, 1884, and amended June 2, 1934 and July 14, 1967)
(the Paris Convention)
- The Berne Convention for the Protection of Literary and Artistic Works
- Indian patent act, 1970