Nearly two years ago, in October 2020, India and South Africa proposed that the World Trade Organization (WTO) suspend key intellectual property rules so that poor countries could access cheaper, generic versions of Covid-19 vaccines, tests and treatments once they became available. The idea was that patents, copyrights and other forms of intellectual property should not be a barrier to access in the face of a world-encompassing and highly lethal pandemic. The proposal became known as a TRIPS waiver, which is a reference to the Trade-Related Aspects of Intellectual Property Rights, the WTO agreement that governs intellectual property rules.
This proposal was followed by 20 long months of stagnation and sporadic negotiations — as well as obstruction and inaction from rich countries, including the United States and European Union. More than 100 countries, the Global South heavily represented among them, threw their support behind the proposal, and global health activists pleaded for its speedy passage in order to save countless lives. Yet, negotiations continued to stall, even as vaccines and then antivirals hit the market, while inequities in global access played out just as the proposal’s proponents feared it would. The pharmaceutical industry aggressively opposed the TRIPS waiver, concerned that any challenge to its monopoly control of intellectual property would cut into corporate profits. An estimated 120 facilities in Asia, Latin America and Africa that had the ability to make mRNA vaccines did not do so, simply because companies would not give them the recipes and know-how they needed to produce the life-saving products.
On June 17, 2022, the WTO finally reached a decision on the issue, and it was a profound disappointment for global health activists.
The decision is so watered down that it bears little resemblance to the original proposal for a TRIPS waiver. It merely restates already-existing rights to compulsory licensing, which refers to governments allowing manufacturing of goods without the permission of a patent holder. The decision does allow for the unlimited exports of Covid vaccines to eligible countries, and makes it slightly less burdensome to send them. But the deal excludes all developed countries, as well as those that opted out, such as China. Tests and treatments — including Paxlovid, an effective antiviral therapy — are also left out. And the deal puts additional restrictions on the ability of countries to divert imports to other nations, though it does ostensibly include a humanitarian exemption. For example, if a country ordered too many vaccine doses, and then wanted to resend some of the leftover doses to another country, the deal would prevent them from doing so, with an exception for humanitarian, not-for-profit reasons.
The deal does not include a robust intellectual property waiver, nor does it explicitly mandate the sharing of trade secrets and manufacturing know-how. Its benefits are so minuscule, it’s like tossing a single lifebuoy to save all the passengers on a capsized ship. According to Robert Kuttner, reporting for The American Prospect, the staff of U.S. Trade Representative Katherine Tai “spent several days trying to get any public-interest group to say something kind about the WTO text. All refused.”
The outcome of this long and arduous process, health activists warn, bodes poorly not only for this pandemic, but future ones as well. A model has been set in which, no matter the scale of suffering and death, or the extent to which global health is bound together, pharmaceutical profits are placed over human lives. “In failing to fully confront the current crisis, it sets a negative precedent for addressing future global health challenges,” Ava Alkon, policy advisor at Médecins Sans Frontières-USA, a humanitarian medical organization, told In These Times. Tian Johnson, South Africa-based founder and strategist at the African Alliance, a social justice organization that works across the continent of Africa, agrees. “This is a massive setback for the cause of global health equity, which will take decades to recover from,” says Johnson.
It’s easy to blame pharmaceutical companies, which aggressively lobbied against any meaningful waiver while raking in stunning profits as the world faced starkly uneven distribution of life-saving Covid goods. But a significant share of the blame also goes to the states that bowed to Big Pharma. Industry, after all, is always going to behave in a way that benefits shareholders’ bottom lines rather than public health, as we saw during the AIDS crisis. It’s up to elected governments to rein in this industry, and act in the interests of the people.
The European Union was a tremendous obstacle to a good deal, along with Switzerland and the United Kingdom. But, according to Achal Prabhala, India-based coordinator of the Accessibsa project, which aims to expand access to medicines, the United States deserves the lion’s share of the blame. “The Biden administration has been, by far, the most significant and the worst negotiator on this deal, but in private,” he told In These Times over email. “The limitation of the waiver to vaccines is all thanks to the United States; the exclusion of China from this deal (which makes no sense if we’re only trying to improve vaccine access by increasing production, wherever it comes from) is also solely thanks to the United States. To cap it all, the United States also delayed in providing clarity on their position, or even beginning a negotiation on the actual text.”
There’s also the issue of what the United States didn’t do. Alkon of Médecins Sans Frontières-USA argues that the United States should have “used its formidable power in the negotiation process to ensure the agreement would apply to all forms if intellectual property needed to enable production and supply of needed medical products and cover all countries with capacity to produce, without exclusions.”
Even those who hold out hope there could be some minor benefits from the deal ultimately sounded a note of disappointment. Prabhala says that the WTO’s decision is “inadequate when it comes to vaccines, incomplete because it leaves out treatments, and far too late, though he does argue “it’s very slightly useful.” He hopes that some of its provisions could “help existing late-stage vaccine efforts, particularly in the mRNA space.”
Ultimately, he wants Global South countries to follow in Brazil’s example by passing bills that allow them to override any obstacles presented by the WTO, and forge full speed ahead with compulsory licensing (though it’s important to note that Brazil’s efforts have been held up by President Jair Bolsonaro). Developing countries need to stop acting “like little puppies in need of help and charity,” he says, and take matters into their own hands.
Others, like Johnson, say that health activists need a campaign to prevent enforcement of any restrictive WTO provisions. “In terms of Biden, our call to U.S. allies would be to push them not to enforce the bad deal and take a principled stance in solidarity,” he told In These Times.
Ultimately, the deal raises fundamental concerns about the WTO as an institution. “It was formed in the mid-1990s, the high point of free-market capitalism, when the answer to every problem was more markets, more private sector, less government red tape,” notes Nick Dearden, the director of the advocacy organization Global Justice Now. This “market knows best” ideology has profoundly failed the world, argues Dearden, a point protesters made in the late-1990s and early 2000s at massive global mobilizations against the institution. According to Johnson, the WTO “has proven again to be a vehicle for the protection of powerful vested interests.”
These vested interests are not limited to Big Pharma. Another global crisis, climate change, is already upon us, and it, too, will require sharing of technology and intellectual property if humanity is going to have any hope of curbing the worst impacts. “The whole world is better off if we all have green technology,” Brook Baker, a Northeastern University professor who also serves as a senior policy analyst for Health GAP, a health justice organization, told In These Times. “If rich countries get to control green technology to prioritize their use in high-income countries, that’s good for their profits, but it’s not good for the world.”
Bill Gates, a prominent opponent of the TRIPS waiver, is also an influential figure in shaping “solutions” to the climate crisis. In 2015 he helped found Breakthrough Energy, which calls itself a network “linked by a common commitment to scale the technologies we need to achieve a path to net zero emissions by 2050.” Combatting climate change will require the sharing of technology and placing habitability of the planet over profit seeking. What does it mean that a powerful figure in the world of green technology is an opponent of intellectual property sharing?
Likewise, green technology and renewable energy companies are members of organizations that lobbied against the TRIPS waiver. The Intellectual Property Owners Association, an international trade association, was part of an effort to oppose any robust intellectual property waiver as recently as March. The association’s board of directors has a member from Evoqua Water Technologies, a green technology company, and counts the green technologies companies BASF, Ecolab and Evoqua Water Technologies among its members. While it’s not clear what, if any, role these companies played in setting the association’s policy, their membership alone should be an alarm bell for anyone concerned about what green technology monopolies could mean for an ever-warming world.
As has been the case with the Covid pandemic — much less the next, possibly deadlier one — climate change means that no one is safe until we are all safe. Alkon warns, “This outcome emerged from a flawed, exclusionary and opaque process that we also fear could repeat itself.”