Confronting IP Nationalism

Abstract

Stories about nations engaging in vaccine nationalism by hoarding limited COVID vaccines dominate the media, but there is a hidden phenomenon that has exacerbated vaccine nationalism and prolonged the pandemic: IP nationalism. This Article coins and explains this term and highlights its negative impacts. Essentially, some nations, primarily of the Global North, are hoarding essential knowledge contained in IP. This Article argues that IP nationalism, rather than vaccine nationalism, is the main reason for current global vaccine scarcity and inequities, resulting in millions of unnecessary deaths. By resisting modification of usual IP rules during the pandemic, countries embracing IP nationalism are harming the Global South, and even themselves, as millions of people die and the global economy continues to suffer. Meanwhile, countries and pharmaceutical companies have obscured the role of IP nationalism by highlighting red herrings as the main barriers to vaccine access.

This Article advocates that countries jettison IP nationalism in favor of a polar opposite framework – a “global public goods” approach, where IP on essential treatments is freely available to all. Such an approach goes beyond what nations are currently discussing in the form of a waiver of international IP rights, by actively sharing knowledge on COVID treatments, as the waiver alone would likely be inadequate for new manufacturers to create COVID vaccines. This is because especially for effective mRNA vaccines, manufacturing involves trade secret processes that are by definition secret; waiver of liability for stealing trade secrets does not ensure that other companies can access such secrets. On the other hand, if these secrets were considered global public goods and policy makers enacted laws accordingly, then companies would be forced to share them. This approach is consistent with historical policy underlying IP and international norms which recognize that IP exclusivity sometimes needs to yield to other interests such as public health.

This Article comes at a crucial time. Recognizing the existence and influence of IP nationalism is an essential first step to better address IP constraints and distortions. This is a very timely issue since the World Health Organization has begun negotiations for a global pandemic treaty to better prepare for inevitable future pandemics. Hopefully, by considering IP treatments for pandemics as global public goods, this treaty could help prevent another global vaccine apartheid. This Article provides concrete suggestions to meet this goal while still ensuring adequate incentives for innovation. Moreover, the Article also recommends complementary modifications to domestic law to similarly promote affordable essential while preserving innovation even in non-pandemic situations.
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Keywords: IP, nationalism, COVID,TRIPS, global public goods, access to medicine, vaccine, drug, innovation, compulsory license, WTO, COVAX

JEL Classification: O30, O32, O34, O38, O39, K33, I14, I18, I19, F10, F54, F55, H41, H87