Fighting for IP Equity: A Zoom on the Forthcoming WHO Pandemic Agreement

Abstract

Faced with the impact of COVID-19, WHO Member States agreed to draft and negotiate an agreement on pandemic prevention, preparedness and response. A proposal for negotiating text of this WHO Pandemic Agreement was prepared by the Intergovernmental Negotiating Body’s Bureau and shared with its Drafting Group in October 2023 for its consideration. This process should lead to the adoption of a legally binding accord. This article considers the usefulness of this international instrument for pandemic prevention, preparedness and response in relation to intellectual property (IP) to ultimately recognise such usefulness but to argue that the negotiating text could be more ambitious. It focuses on the Agreement potential to mitigate the impact of IP regulations that favour developed countries and their pharmaceutical industries. The article first highlights how the international IP system, through the Agreement on Trade-Related Aspects of Intellectual Property Rights, disempowered developing countries in their battle against COVID-19. It then focuses on provisions relating to IP law found in the negotiating text to explore and question its potential to contribute to IP equity for developing countries for future pandemics. Finally, the article proposes recommendations to strengthen the impact of a WHO Pandemic Agreement in the fight for IP equity.

Keywords: Intellectual property, WHO Pandemic Agreement, COVID-19, Patents