How to Assess the Willingness of US to Suspend Patent Protection on Vaccines?

Colombia was one of the first countries in the Americas to receive the COVID-19 vaccine through the COVAX Facility. Credit: PAHO/Karen González

BRUSSELS / ROME, May 10 2021 (IPS) – The news of the Biden Administration s willingness to lift intellectual property rights protections in the case of the Covid-19 pandemic has sent the world into turmoil, even though in recent days this willingness had become increasingly airy.

Big step forward? Victory for the South and the movements that have been fighting for this (including, for more than a year, the Agora of the Earth s Inhabitants agora-humanite.org even though from the beginning we considered that the provisional suspension was a par défaut solution)?

Are we experiencing humanitarian compassion and confirmed dominance of the rich over the poor?

Interesting aspects

The position taken by Biden constitutes the change expected by the world. The media pressure on Biden and on the Democratic representatives in Congress was so strong that a negative or uncertain response would have cost Biden a great deal in terms of his global image. The language and form were also good, in total contrast to the previous administration. Biden did not disappoint.

Second point. He has given a breath of hope and credibility back to the international community in a dramatic phase for the entire world population. We are still a long way from the All Brothers of Pope Francis, but the Catholic Biden has not failed to wink at his Pope s public incitement

Finally, he forced the EU to follow suit. Yesterday, for the first time in many years of rejection, the EU also declared itself willing to discuss it.

Crucial aspects

The fact is that on the substance the change is not so evident.

Why? Let us examine carefully the statement of Katherine Tai, the US Trade Representative at the World Trade Organisation (WTO)

1. The statement begins with yet another statement of faith on the protection of intellectual property rights. This is a global health crisis, and the extraordinary circumstances of the Covid-19 pandemic call for extraordinary measures. The Administration believes strongly in intellectual property protections, but in services of ending this pandemic, supports the waiver of those protections for Covid-19 vaccines .

No dissociation from the founding principles of the dominant economy, nor a clear and open contrast with the world of business and the pharmaceutical industry, especially American. Moreover, the support given is rather restrictive, limited only to anti-Covid-19 vaccines. By introducing such a restriction in a very complex scientific and technological field (the production of basic materials indispensable to vaccine production, for example, is excluded), the effective possibilities of suspending protection are considerably reduced.

2. Article 31 of the WTO-TRIPS treaties provides for the possibility of waiving the protection of intellectual property in the event of serious needs and for public intervention. We mention in particular the compulsory licence , which authorises a State to allow the local production of all therapeutic tools (tests/diagnoses, medicines, vaccines ) without the consent of the companies holding the patents. In fact, this is the first time that the United States has not been generous but has shown that it accepts the respect of those WTO-Trips rules that it had always, since 1995, fought against because they were considered contrary to its interests.

In other words, the important political change is that the United States, from being disrespectful of international treaties that do not suit them, has become a state that is willing, in the case of Covid-19 vaccines, to discuss how to apply the existing rules. The treaties, moreover, already specify the conditions under which exceptions to the protection of intellectual property can be applied. If one adds the above-mentioned restriction, one has to admit that the US position is rather tortuous and bizarre. But why do they do it?

3. A possible answer is given in the official statement. The US does not commit itself to anything specific. They say We will actively participate in text-based negotiations at the WTO need to make that happen , and correctly state that These negotiations will take time given the consensus-based nature of the institution and the complexity of the issues involved . That is, the US does not say, well, as of tomorrow we will apply the rules of provisional suspension according to the conditions mentioned in the Treaties . No, the statement insists that the negotiations will take a long time. How long? Three months, a year, three years? According to experts in the field, it will take, if all goes well, almost a year to rewrite the rules. And in the meantime?

4. It is clear from this that the real strategy of the US is to prioritise logistical and financial solutions concerning essentially the production of vaccines, their distribution and marketing at affordable prices, especially for the 92 low-income countries and other middle-income countries in increasing economic difficulty. The statement says The Administration s aim is to get as many safe and effective vaccines to as many people as fast as possible.

As our vaccines supply for the American people is secured, the Administration will continue to rump up its efforts working with the private sector and all possible partners to expand a vaccine manufacturing and distribution. It will also work to increase the raw materials needed to produce these vaccines .

Considering the problem and solutions of the health crisis as a problem of production, supply and purchase, market prices and consumer solvency is typically an American/capitalist approach.

As is the appeal that since the security of supply of vaccines for the American people has been guaranteed, the US will increase its efforts to increase the production and distribution of vaccines at affordable prices paid for by the public authorities. Well, we have some difficulty in assessing this as a major step forward.

A mainly public health policy and solutions to the dramatic pandemic go beyond the processes of vaccine production and consumption. No opening is made for a public vision of the pharmaceutical industry and the world health system.

Vaccines, and first and foremost knowledge/science/, remain private under patent ownership. The market remains the principle and the fundamental regulatory mechanism. The financial imperatives of the market dictate the choices of the public authorities.

Hence the absence of any mention of the fact that the central axis of world health policy must shift from the rules on trade (WTO) to the rules on universal rights to health and the health system under the responsibility of public international bodies such as WHO, UNICEF, UNDP, UNEP, UNESCO ).

According to the American government, states are there to ensure the proper functioning of health markets, and to defend the security of their citizens in the context of a world economic governance dominated by the rules of the WTO and the World Bank. The richer states have the task of helping the poorer ones. See the role of Covax and its probable financial strengthening.

We remain in the midst of the structural dualism of rich and poor and the logic of the inevitability of aid and the domination of the North over the future of the peoples of the South and the planet.

The oxygen crisis in India is a major example of the consequence of the inadmissible commodification and privatisation of oxygen for therapeutic purposes that has been going on for several decades.

Forget health as a universal human right, a common good, a public good! Forget public health policy .

In conclusion

The US position is new, but in some ways, it goes in a direction that is not necessarily better. It is also important that the US forced the EU, however recalcitrant, to state yesterday that Europe is also willing to negotiate.

No one can say what the outcome of the negotiations will be. In the meantime, putting the emphasis on increased vaccine production ( now that the American people are safe . ) means that the fundamental, structural premises unfortunately remain unchanged.

Of course, the fact that the good emperor has finally listened to the cry of the people is not to be dismissed. But is this enough to sing victory? Whose victory?

Why should the peoples of the Earth thank the USA for the step taken?

In order to hope that the symbolic value of the change made by Biden will be transformed into an effective process in favour of the right to health and life of all the inhabitants of the Earth, other changes are objectively necessary.

The compassion of the powerful is only an illusory remedy.

*Riccardo Petrella is Professor Emeritus of the Catholic University of Louvain (B) and Roberto Savio is President of Other News; co-founders of the Agora of Earth s Inhabitants.