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March 11, 2021

Comment: Why a Waiver of Intellectual Property Rights for COVID Vaccines by India and Africa is Impracticable

Author: Intern - Yashwardhan Singh

In the race to fight COVID-19, making vaccines more accessible to everyone has to be priority. Yet, high prices and monopoly rights created by the manufacturers of these vaccines continue to be a strong deterrent towards trying to achieve this goal. In a bid to tackle this global issue, India and South Africa called for a waiver of certain parts of the Agreements on Trade Related Aspects of Intellectual Property Rights (TRIPS) by the World Trade Organisation (WTO) in October 2020. The idea was increasingly supported by a number of nations, including the African Union[1] and the Director-General of the World Health Organisation (WHO), Tedros Adhanom.[2] Here, the author argues why such a waiver would be impractical.

The waiver proposed by India and South Africa aims to waive patent rights over all COVID-19 vaccines developed globally, which would allow every nation to make and sell their own copies of the COVID-19 vaccine at cheaper rates. However, patent waivers over inventions on which billions have already been spent would critically dis-incentivise future innovation, which is the primary justification in granting IP rights in the first place.

Moreover, waiver of patent rights is no guarantee that the low-income and lower-middle-income nations would receive vaccines in a timely manner. Such countries have almost no experience in the creation of vaccines and most nations do not have the facilities to start large-scale production of vaccines for their population. They would ultimately have to rely on importing vaccines from other nations.

The problem with a waiver is that it is not an expeditious solution. While patent waivers might serve short-term interests, it is self-defeating in the long-term. Rather than risking patent rights of innovators, there can perhaps be a third way of having the concerned pharmaceutical companies enter into licensing deals to allow other manufacturers to produce vaccines or by having these companies place a cap on the price at which they can sell the vaccines. If developing nations can get a commitment from the developed nations on them helping the poorer nations in the fight against COVID, perhaps a waiver, putting future scientific innovation at risk, won’t be necessary.

[1] Alexander Winning, Omar Mohammed, Ayenat Mersie, African Union backs call to waive intellectual property rights on COVID-19 drugs, Reuters (February 25, 2021), https://news.trust.org/item/20210225123343-3b8f3/.

[2] Sarah Boseley, WHO chief: waive Covid vaccine patents to put world on ‘war footing’, The Guardian (March 05, 2021), https://www.theguardian.com/world/2021/mar/05/covid-vaccines-who-chief-backs-patent-waiver-to-boost-production.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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