IP Is Killing People, Your Government Can Stop It

by Helen Turvey, Chris McGivern & Karien Bezuidenhout, 11 May 2021

“These extraordinary times and circumstances call for extraordinary measures. The US supports the waiver of IP protections on COVID-19 vaccines to help end the pandemic… ”

– US Trade Representative Katherine Tai

Joe Biden’s decision to support India and South Africa’s patent waiver proposal is a monumental moment in more ways than one. These are extraordinary times and this is an extraordinary message from a nation that built its constitution, economy and way of life around property rights.

We welcome the announcement, albeit with cautious optimism. US support only opens the door for talks at the WTO, not immediate action. It could take the best part of a year or longer before we see vaccines produced openly where needed and can deliver more shots in arms. And it might not happen at all. The pharma industry and its supporters will be voracious in their arguments. They already have significant backing, and deep-rooted motivations to keep the status quo intact.

Shuttleworth Fellow Achal Prabhala has worked tirelessly on access to medicine issues across two decades. His fellowship work demonstrates how Western-designed global intellectual property rules harm millions of lives in the Global South and describes the way corporations exploit overly-broad patent laws to re-patent drugs and preserve their monopolies. He is one of a small band of global researchers, activists and scientists who have been instrumental in building the wave of public pressure that influenced Biden’s decision.

It is critical that we do not allow that momentum to dip. Achal’s work reveals the truth behind the purposefully-complex IP landscape and allows us to deconstruct the pharma industry’s arguments. It’s time to make the case for open vaccines and access to medicine, and not only for the duration of the pandemic.

Public money, private profits

Taxpayers have already paid for the vaccines, twice. Public money funded the research and our governments guaranteed payment in advance for production of every vial. The companies have already been compensated. No ifs, no buts: the vaccines belong to the people. They are a public good, and should be open and accessible to all of us.

If companies have been paid, why is there a need for IP? The pharma industry claims it is an accelerator of vaccine innovation. But as more people die and threats of mutation increase, patent protections and knowledge restrictions look increasingly like tools of industrial-strength self-interest. The patents-first, people-second approach has proved both absurd and disastrous.

Government obligations

Governments are meant to keep their citizens safe. The best pathway to safety during a pandemic is to end it quickly by ensuring global vaccination. The quickest way to treat everyone is to share knowledge and enable tech transfer.

This waiver should have happened - in full - right at the very beginning. But world leaders are heavily influenced by the pharmaceutical industry’s loud and influential proponents and have been slow to connect the dots. Their widespread, narrow-minded belief in an inequitable patent system has curtailed the global response with a horrific cost to human life.

IP is the problem, not the solution

Which is more important: saving lives, or maintaining a proprietary knowledge system designed, optimised and protected by the pharma industry, behind closed doors at the WTO and in the lobbies of governments? Pharma is worried the waiver will destroy the current IP system and limit financial rewards from cutting-edge drug developers.

Frankly, that’s the point. IP and its monopoly-based model is the problem, not the solution. It creates barriers by concentrating production in a few areas and restricting it elsewhere. The system is fundamentally broken. The EU’s Ursula von der Leyen states that waiving intellectual property patents will “not bring a single dose of vaccine in the short- and medium-term”. She is right, but 18 months into a pandemic we are already in the long-term. If IP had been waived at the beginning, where would we be now? We must grasp the opportunity offered by this waiver to make the case for faster, better, more open and equitable approaches to solving global health challenges.

Working for shared interests

Without a healthy society, economies suffer, education systems suffer and populations suffer. Now is the time to look holistically at how economies are organised and plan them around equity, justice and fair rewards instead of around the interests of Big Pharma.

The pharma industry has been incredibly successful in lobbying governments around IP matters, and is a model for the creative industries’ adoption of a copyright-first approach. Upsettingly - and unsurprisingly - movie studios, music bigwigs and publishing giants are already expressing concerns about the TRIPS waiver. Their intervention - effectively: ‘we support defeating the virus unless it harms our margins’ - is both grim in sentiment and utterly tone deaf to the needs and demands of the moment.

The market is not the answer

The market cannot solve global health issues of this scale. Healthcare capitalism is failing the world now, has failed the world before, and will fail it again in the future. We need different thinking around intellectual property for medicine, diagnostics and infrastructure. Access to research and lifesaving drugs must be at the heart of any future plans.

If the market cannot or will not deliver lifesaving medicines, we need to embrace alternative approaches. Public money has always played an important role, and state-supported innovation is something to celebrate. Let’s recalibrate the message around public spending as an investment rather than a cost. And let’s be better at philanthropy. Fund research and commit to publishing it openly. And if you say you are open, mean it.

Closed Gates, Opened Gates

Bill Gates stepped back from his suggestion that intellectual property underpins innovation and does not present a barrier to equitable vaccine access. It’s quite a U-turn. He has a religious zeal for proprietary solutions and an IP system that made him unimaginably wealthy. And when Oxford University researchers wanted to make their vaccine formula open and more widely available for further study, Gates talked them out of it.

So while we applaud this decision, it’s important to remain critical. It only applies temporarily, and his perverse unwillingness to consider alternative ways of managing IP has a long and damaging history. He has a highly persuasive voice in the corridors of power, and has undoubtedly influenced the months-long delay in support for the waiver proposal. Hundreds of thousands have died in the meantime.

Shades of imperialism

Gates’s initial response to the waiver proposal also exposes another troubling issue. Vaccine research is published by the West and vetted by the West, for vaccines licensed by Western corporations to be manufactured for the West at great profit. While wealthy countries sat on vaccine stockpiles, developing nations went without. There is also a belief that countries with fewer resources are incapable of making treatments safely, despite the fact India is already at the centre of global vaccine manufacturing.

Another prevalent attitude is that knowledge exchange with countries like China, Cuba and Russia - who have all developed vaccines - is a national security issue rather than a solution to the pandemic. Surely it’s time to shake off the superiority complex, end the imperialistic prejudice, and give credit where it’s due. If solving global challenges involves working openly with the West’s traditional ‘enemies’, so be it.

This is just the beginning

Patents are only a part of the story. Although the US supports the temporary lifting of IP protections for coronavirus vaccines, it is less enthusiastic about sharing knowhow and tech transfer. Pressure is needed to ensure the world gets what it needs. Enabling the capacity to deliver vaccines everywhere is challenging but potentially achievable within months.

Once this pandemic ends we cannot return to the norm. Monopoly-based IP models that create artificial scarcity are not the answer, even when judged on their own terms. If patents are an incentive to innovation and medicinal progress, why is most of the world still excluded from access to treatments for diabetes, cystic fibrosis, or cancer?

We can do better. Let’s use this opportunity to reimagine global intellectual property rules and build a better, more open future that puts people over patents and profits.