Human technology

Will the TRIPS waiver solve the inequality of Covid-19 vaccines?

About the Author: Rachel Silverman is a policy researcher at the Center for Global Development.

The Covid-19 pandemic has continued to evolve and mutate along with its underlying virus, frustrating efforts to chart its course. However, one of the first predictions has come true. Even though highly effective vaccines and treatments have reached the market in record time, they have been extremely slow to reach the world’s poorest countries and populations. While wealthy countries have enjoyed near universal access to vaccines since late spring or early summer of last year – and are now rolling out third- and fourth-cycle boosters to their populations – less than 10 % of the population of Nigeria, the Democratic Republic of the Congo and Mali received their first blow.

Global health officials have consistently, accurately and urgently highlighted these huge disparities, calling out the injustice of “vaccine apartheid.” But more than two years into the pandemic—given these shocking statistics—has this moral clarity translated into sound policy decisions to advance global access to vaccines?

The case of the TRIPS waiver

The “TRIPS waiver” is a proposal to address vaccine inequities. The details of the proposal have changed over time, but it was originally brought to the World Trade Organization in October 2020 by India and South Africa before vaccines and the inequality we see today materialized. Supported by many low- and middle-income countries, the measure would exempt (at this hypothetical stage) Covid-19 vaccines, diagnostics, treatments and other Covid-19 tools from standard international protections that allow intellectual property monopolies. There are many exceptions and nuances to international intellectual property law, but at a basic level, a company that owns the rights to a vaccine normally has the ultimate authority to decide who can produce it. The waiver would make it easier for countries to decide to override that authority, in theory easing the way to produce more doses.

The prospect of a waiver of the TRIPS Agreement has become a cause of global health fame from day one, attracting support from prominent leaders and civil society. The campaign for apopular vaccinewithout intellectual property barriers and accessible to all, has consumed a huge amount of advocacy efforts and political will. Many of his supporters entered their professional lives during the travesty of the AIDS crisis, where global patent enforcement had kept millions of patients from accessing life-saving AIDS drugs for years. They were determined that such history would not repeat itself; this time we would elevate human lives above industrial profits.

But as a real policy measure for the response to Covid-19, the value of a TRIPS waiver has been disputed and at times almost certainly overstated given the complexity of international intellectual property laws and the the difficulty reverse engineering Covid vaccines. Even the original proposal was time-limited, applied only to international intellectual property obligations (as opposed to local laws and protections), and offered no provisions to constrain technology transfer or industry cooperation. Some activists have made sweeping (and inaccurate) claims about the potential power of a TRIPS waiver to unlock vaccine production and save millions of lives. Other more sophisticated organizations, such as Médecins Sans Frontières and Knowledge Ecology International, have argued strongly in favor of the TRIPS waiver but have recognized that it is one of many complementary measures needed to enable the local production of tools.

Perhaps unsurprisingly, the proposed waiver was anathema to the industry and initially blocked by a number of TRIPS signatories, including the European Union; other stakeholders, such as the United States, theoretically supported the measure but wanted to water it down in the negotiations. The effort to advance and adopt a TRIPS waiver at the WTO consumed an enormous amount of advocacy energy and political will during this same period through multiple rounds of meetings, debates and negotiations, both in public and behind closed doors.

It has been almost a year and a year since the first vaccines became available, and no TRIPS waiver has yet been adopted. But last week a leaked document suggested a potential compromise that could break the deadlock. The compromise position would be much more limited than the original proposal. It only covers patents, not trade secrets; applies only to Covid vaccines, which are the hardest to reverse engineer anyway, relative to the broader set of therapeutics, diagnostics and other tools; and is geographically limited in scope in a way that would effectively exclude Chinese and Brazilian manufacturers from participation. Proponents reacted with disappointment and fury at the measure’s relative weakness.

Declare defeat, victory or both?

Regardless of the merits of the proposal – and whether or not a compromise version is ultimately adopted – it is clearer to think about the results of global vaccine equity after 18 months of campaigning.

At first, the failures are obvious. No TRIPS waivers have been adopted, despite the huge investment of advocacy and political negotiation resources. Monodose vaccination coverage remains catastrophic in some of the poorest countries, hovering below 10%. COVAX, the global vaccine supply mechanism on behalf of the world’s poorest countries, struggled to get doses and was more recently forced to slow down operations due to insufficient donor funding. US Funding for Global Immunization stay in limbo after being removed from a supplemental funding bill.

But it’s not all bad news, and in many ways the world has moved beyond the initial intellectual property debates even as negotiations continue at the WTO. Analysis by my colleagues at the Center for Global Development shows that this has been the fastest and fairest vaccine deployment in history by an order of magnitude, even if it left the poorest countries behind. Pharmaceutical companies have been actively cooperating on voluntary license agreements to expand production of vaccines and therapeutics and rapidly expand global access, even for brand new treatments like Paxlovid. Vaccines and treatments are arriving in low- and middle-income countries, although there is still work to be done.

Given the counterfactual – what could have been?

The moral principle underlying the proposed TRIPS waiver was simple and arguably correct: we should all put human lives ahead of industrial profits. But life is about choice, and high morality is no substitute for smart strategy and uncompromising prioritization, especially when human lives are at stake.

The advocacy community is to be commended for helping to increase the general sense of pressure on the industry, which has undoubtedly helped to facilitate access concessions and voluntary license agreements. Yet the narrow focus on TRIPS was ultimately wrong. The attempt to pass a TRIPS waiver, even if ultimately successful, will be a day late and a dollar less – too limited in scope to be useful, and replaced by progress that has taken place in its absence.

Counterfactuals are easy to suggest and impossible to prove. But what if that same advocacy energy had instead been drawn into less controversial and more actionable measures, even if they felt less morally satisfying? On the need for faster and better resources and faster deployment of World Bank funds to buy vaccines for the poorest countries? On better supporting vaccination campaigns with money and on-the-ground technical assistance? On regional efforts, in sub-Saharan Africa and elsewhere, to collectively purchase vaccines and generate citizen demand? By subsidizing faster and more aggressively to scale up manufacturing, including paying industry for the free use of its intellectual property and the transfer of technology overseas? What if we had not criticized but rather exploited corporate greed for global good, making the world a better place even as we lined the pockets of pharmaceutical executives in the process?

It’s time to choose

We should never value money over lives, but the reverse is true: we shouldn’t put lives at risk out of a distaste for corporate profits or stick to moral principles instead of doing the messy work needed to solve global problems. A pandemic is a bad time to profit. But it’s also a bad time for posture and positioning. Sometimes the urgent global good requires partnering with Big Pharma and rewarding them financially; sometimes you need to hold your nose and approve a scientifically important and potentially life-saving health technologyalthough (some) revenue will benefit Big Tobacco.

From here, I hope we can strive to choose the path that saves lives with a sense of urgency and determination.

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