International Academics Push for TRIPS COVID IP Waiver Hold-Outs to Drop Opposition

One-hundred-twenty-four professors and academics from around the world have penned an open letter supporting India and South Africa’s proposed waiver of certain provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), which they claim will help to combat the COVID-19 pandemic.

According to a press release about the letter, the United Kingdom, Ireland, Australia, Brazil, Japan, Norway, Switzerland and the EU continue to oppose the waiver proposal. The United States expressed its support for waiver in May. Over the last several weeks, Europe has doubled down on its opposition to the proposal in ongoing talks.

The academics’ letter calls the waiver proposal “a necessary and proportionate legal measure towards the clearing of existing intellectual property barriers to scaling up of production of COVID-19 health technologies in a direct, consistent and effective fashion.” While they acknowledge that other factors contribute to lack of access to vaccine and COVID-19 technologies, “IP rights, and monopolies over tacit and informal information, are also implicated in the current lack of global capacity for vaccine production and other health technologies, as well as in enabling their inequitable distribution.”

The letter further explains that the strategies used so far to address inequities in vaccine distribution “have focused on solutions which build on the existing IP system, such as the World Health Organisation (WHO) COVAX initiative or voluntary licensing provisions.”  These solutions are limited and their success has not been sufficient, says the letter:

We note that as of June 2021 the voluntary COVAX donation scheme has delivered only 90m out of a promised 2bn doses. Pharmaceutical companies who hold relevant IP rights have also failed to engage with the WHO’s voluntary COVID-19 Technology Access Pool (C-TAP) of IP and know-how.

Additionally, “in light of the considerable public financing of COVID-19 vaccine research, development, production and purchase, claims of inviolability of private IP monopoly rights cannot be justified.” While the academics concede that the IP system has failed in the past to create incentives for vaccine development, government funding has greatly mitigated that risk with respect to COVID-19 vaccines, they claim.

With respect to existing provisions of TRIPS that are meant to address a scenario like the COVID-19 pandemic, they are not effective due to patent thickets and data exclusivity rules that make it impossible for anyone else to produce the technology. The letter calls on governments to urge IP holders to disclose trade secrets and other undisclosed information in order to build local and regional manufacturing capacity. “There are precedents for this, including US production of penicillin in WWII in which the US government oversaw the necessary pooling of technology and knowledge by companies and universities to rapidly increase penicillin production,” the letter explains.

It concludes:

This approach must also encompass other steps, including: global co-ordination of supply chains; streamlining regulatory approval processes and sharing exclusive data from regulatory dossiers; and investment in the WHO’s C-TAP and the mRNA technology transfer hub in South Africa.11 The TRIPS waiver will thus facilitate the technical resilience of lower- and middle-income countries in view of present and future pandemic action and preparedness. This is in line with the commitment in the TRIPS Agreement to balance the rights of IP holders in high- income countries with the promise of technology transfer to lower- and middle-income countries. It is time to fulfil this promise and, in so doing, to end the pandemic.

Some of the U.S. signatories to the letter include Professor Margo Bagley, Asa Griggs Candler Professor of Law, Emory University School of Law; Prof Robert Howse, Lloyd C. Nelson Professor of International Law, NYU School of Law; Christopher Morten, Associate Clinical Professor of Law, Columbia Law School; and Professor Madhavi Sunder, Professor of Law, Georgetown Law, Georgetown University; and Sean Michael Fiil-Flynn, Director, Program on Information Justice and Intellectual Property (PIJIP), American University Washington College of Law.

Fiil-Flynn commented in a statement:

This statement of leading scholars furthers the interests of researchers by confirming that access to all intellectual property – including copyright on treatment and vaccine algorithms and software – may be needed and to tackle the pandemic and should be included in the waiver.

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