Making International Intellectual Property and Trade Regimes Work to Address the Health Response to COVID-19: The Burdens of Exclusivity

The world was unprepared for COVID-19, despite other recent coronavirus outbreaks and despite multiple warnings from the World Health Organization (WHO) and others. Although there was an initial sharing of research among scientists and an unleashing of significant public, charitable and private funding to develop, test and expand manufacturing capacity of new COVID-19-related medicines, vaccines and diagnostics, the status quo of exclusive rights ownership and commercial control by the multinational biopharmaceutical industry continues unabated.

Existing intellectual property rules that allow private entities to maintain monopoly rights over the development, clinical testing, regulatory approval, pricing, supply and distribution of essential medical products have not been altered. And, the determination of rich countries to secure preferential and disproportionate access to proven and promising vaccines, medicines, diagnostics and personal protective equipment remains unchanged. In place of open science and coordinated clinical trials, scientific rigor in regulatory assessment and broad regulatory approval, low-cost pricing and rational expansion of manufacturing capacity and equitable global access to all needed COVID- 19 health products, there is needlessly high prices, inadequate supplies and nationalistic hoarding, especially, but not exclusively, in the Global North.

Fortunately, there are multiple initiatives and proposals to counteract exclusivities, commercial prerogatives, and rich countries’ preferential access to existing and novel COVID-19 health technologies. In new working paper, Brook Baker discusses these initiatives, which include radical proposals to waive recognition and enforcement of COVID-19-related intellectual property rights (IPRs) at the global and national level during the pandemic and to extend the general least developed country transition period for enforcement of IPRs. Other proposals he discusses focus on both voluntary and compulsory mechanisms to override IPRs, openly license and facilitate technology transfer of coronavirus vaccines, medicines and diagnostics. He also notes that several global partners have established an accelerator to speed development and marketing of new COVID-19 tools and secure at least some supplies for low- and middle-income countries, along with regional cooperation initiatives.

Although there have been multiple initiatives and proposals to overcome industry’s exclusive rights and commercial prerogatives, Baker explains these efforts have not resulted in the needed paradigm shift in global health such that lifesaving and enhancing health products are viewed as global public goods, rather than as ordinary consumer products. Similarly, rich countries’ hegemonic hoarding of COVID-19 health products and inadequate global coordination mechanisms have left the imperative of equitable distribution of COVID-19 health products disarrayed, with the risk that twice as many people will die from COVID-19 than if vaccines were to be shared globally.

Baker advocates for far more activism from governments, institutions and civil society “to dislodge the current lethargic response and intellectual-property/market fundamentalisms that leave our world fractured in responding to this modern day plague.” In his words, “this global pandemic needs a global response now.”

Brook K. Baker is a Professor of Law at Northeastern University. He has taught and consulted in South African law schools and law school clinics since 1997. Professor Baker is an honorary research fellow at the University of KwaZulu Natal in Durban, South Africa. Professor Baker is also a senior policy analyst for Health GAP (Global Access Project) and is actively engaged in campaigns for universal access to treatment, prevention, and care for people living with HIV/AIDS, especially expanded and improved medical treatment. He has written and consulted extensively on intellectual property rights, trade, investor-state dispute settlement, access to medicines, and medicines regulatory policy, and including with the African Union, ASEAN, CARICOM, and the World Health Organization among others.