The Good, The Bad, and The Ugly of IP Law: the TRIPS Agreement and the COVID-19 Vaccine

Background. 

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, which is administered by the World Trade Organization (WTO), serves to establish global standards for the protection of intellectual property rights (Sirleaf, 2021). The agreement outlines rules to ensure that the safeguarding and enforcement of these rights do not hinder international trade, and works to strike a balance between the interests of right holders and the broader public interest (Defossez, 2017). Since its inception, the TRIPS Agreement remains the most comprehensive multilateral agreement on intellectual property (Defossez, 2017). However, despite its pivotal role in standardizing global intellectual property norms and facilitating international trade, the agreement has come under scrutiny for its impact on the Global South, particularly in terms of public health (Sirleaf, 2021). As a result, this blogpost will delve into the good, the bad, and ugly of intellectual property as exemplified through the implementation of the TRIPS Agreement in the context of the COVID-19 pandemic. 

The Good.

The primary objectives of the TRIPS Agreement have been to bolster international trade, foster a culture of innovation, and confront the intricate challenges stemming from divergent national intellectual property laws (Defossez, 2017). The agreement has sought to establish universal minimum standards to intellectual property – which are applicable to all member countries within the WTO – in the hopes of providing a more harmonious and predictable terrain for businesses engaging in cross-border activities (Defossez, 2017). Among its achievements, the TRIPS Agreement has laid out a foundation for enforcement procedures, remedies, and dispute resolution mechanisms, offering an indispensable shield for intellectual property rights (Defossez, 2017). The protective and enforcement regime instituted by the agreement stands as a testament to its pivotal role in shaping the dynamics of international trade (Defossez, 2017). Yet, even amidst its benefits, the agreement, like any ambitious international endeavour, has not been immune to scrutiny and criticism. 

The Bad.

The most salient critique of the TRIPS agreement has been the prioritization of the interests of developed states and transnational corporations over the interests of developing nations (Defossexz, 2017). While the TRIPS Agreement may be heralded as a protector of innovation and creativity, in developing countries the same does not hold true. Instead, in developing countries, the TRIPS Agreement has been a means for companies to encroach on individuals’ basic right to health (Sekalala et al., 2021). Pharmaceutical companies have been able to excuse themselves from sharing life-saving medical information, citing the protections afforded to them by the TRIPS Agreement (Sekalala et al., 2021; Sirleaf, 2022). Therefore, when a credible vaccine for COVID-19 had been created, rather than it being distributed globally to prevent the spread, pharmaceutical companies refused to give up their patents under the TRIPS Agreement (Sekalala et al., 2021).

The Ugly.

On an international front, one of the major exacerbating forces of the COVID-19 pandemic was the lack of accessibility and transparency regarding the vaccine, largely due to the TRIPS Agreement (Sirleaf, 2021). Thus, at the height of the pandemic, as pharmaceutical companies raced to develop a cure to the virus, the agreement did what it always set out to do – protect innovation and stimulate trade (Sirleaf, 2021). However, in doing so, the agreement also led to the uneven distribution of the vaccine in developing countries, leading to what some academics refer to as the “vaccine apartheid” (Sirleaf, 2021). This geographically-driven gatekeeping of the vaccine led to pharmaceutical companies prioritizing countries and people based on wealth, leading to a self-created global supply crisis of the vaccine (Sirleaf, 2021). While Canada had enough vaccines to immunize all of their citizens 10 times, those in the Global South were still fighting for access to these preventative measures (Sirleaf, 2022). In October 2020, India and South Africa suggested a waiver of the TRIPS Agreement until the vaccine was available globally and a majority of the population developed immunity (Sirleaf, 2022). Unfortunately, it was not until 2022 that the WTO finally decided to waive the TRIPS Agreement, but added a stipulation that essentially rendered their decision useless (Sirleaf, 2022). The stipulation proposed that developing countries would have access to vaccine patents, but countries with the capacity to manufacture the vaccine were encouraged to disregard the waiver (Sirleaf, 2022).. Hence, this stipulation essentially ignored the fact that these countries needed access to patents before they could even begin manufacturing anything (Sirleaf, 2022). Although the World Health Organization did try to intervene and create COVAX, a global vaccine-sharing enterprise, the damage had been done (Sirleaf, 2021). By prioritizing profits over human rights and manipulating intellectual property law, a two-week lockdown turned into a three-year and counting debacle. 

Conclusion.

The COVID-19 pandemic has highlighted the need for a delicate balance between intellectual property protection, public health, and global solidarity. The TRIPS Agreement stands as a symbol of the challenges inherent in navigating the complex intersection of international trade, innovation, and the fundamental right to health. It is imperative that the lessons learned from this experience emphasize the urgency in reevaluating intellectual property frameworks to ensure a more equitable and inclusive response to future global health crises. 

References

Defossez, Delphine A.L., “Global Regulation of International Intellectual Property Through Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS): The European Union and Brazil” (2017) 3:2 Law and Regulation 131.

Sekalala, Sharifah, Lisa Forman, Timothy Hodgson, Moses Mulumba, Hadijah Namyalo-Ganafa, and Benjamin Mason Meier, “Decolonising Human Rights: How Intellectual Property Laws Result in Unequal Access to the COVID-19 Vaccine” (2021) 6:7 BMJ Global Health 1

Sirleaf, Matiangai, Omicron: The Variant that Vaccine Apartheid Built (2021) Just Security.

Sirleaf, Matiangai, ‘We Charge Vaccine Apartheid?’ (2022) University of Maryland Francis King Carey School of Law, Legal Studies Research Paper Np. 2023-06.