A Global Pandemic Remedy to Vaccine Nationalism

55 Pages Posted: 20 Apr 2021

See all articles by Orit Fischman Afori

Orit Fischman Afori

College of Management Academic Studies Law School

Miriam Marcowitz-Bitton

Bar-Ilan University - Faculty of Law

Emily Michiko Morris

University of Akron School of Law

Date Written: April 19, 2021


The COVID-19 pandemic has had devastating effects on our social, economic and political lives. While the race to develop vaccines has yielded results in record time, ensuring widespread, affordable access to these vaccines remains a major challenge. Vaccines are now in a race against new, more virulent variants of COVID-19, and unless everyone can be vaccinated soon, these new variants may lead to many more deaths. Current vaccine supplies fall far short of what is needed, however, and in what has become known as “vaccine nationalism,” wealthier countries have poured billions of dollars into advance purchasing agreements that guarantee themselves preferential access. The distribution inequities resulting from this nationalistic response undermines the interest all countries have in speedy and universal inoculation.

At the heart of the problem is the fact that the pharmaceutical industry has taken a market-driven rather than public-health driven approach to vaccine development and distribution. A market-driven approach makes sense to some extent, as the pharmaceutical companies must have some means of recovering their investments in the risky research and development required to create new vaccines. Patent protections and other exclusive rights are widely regarded as necessary incentivizes for investment in pharmaceutical innovation, as they allow supracompetitive pricing. In times of global public health crises, however, the ordinary principles of exclusivity must give way to the pressing need for immediate, affordable, and widely available access. We desperately need other manufacturers to be able to help boost vaccine supplies and lower vaccine prices.

Recognizing the need for flexibility in times of emergency and building upon knowledge gained from existing international and domestic compulsory licensing laws, we propose a global, centralized scheme to provide access to vaccines during pandemics. In many ways our proposal mirrors some of the WHO’s COVID-19 vaccine initiatives but consolidates and expands them into a much more efficacious form. Under the proposed model, the World Health Organization’s declaration of a pandemic would trigger a global procurement and distribution scheme for vaccines. The proposed scheme would be mandatory and would require that all countries operate as one buyer vis-à-vis vaccine developers. A single buyer scheme provides a buyer with significant economic leverage, allowing not only to negotiate vaccine pricing and distribution from a better bargaining position, but also to discourage defection. This procurement scheme would be supported by the power to issue global compulsory licenses of patent, trade secret, regulatory data, and other assets necessary for vaccine production, to become effective if and when consensual negotiations with vaccine developers fail. The success of such a global procurement initiative, especially at times of emergency where each country is tempted to defect and take a nationalistic approach, depends on mandatory global participation and a firm commitment to the scheme.

Keywords: COVID-19, patent law, compulsory license, intellectual property law

Suggested Citation

Fischman Afori, Orit and Marcowitz-Bitton, Miriam and Morris, Emily Michiko, A Global Pandemic Remedy to Vaccine Nationalism (April 19, 2021). Available at SSRN: https://ssrn.com/abstract=3829419 or http://dx.doi.org/10.2139/ssrn.3829419

Orit Fischman Afori

College of Management Academic Studies Law School ( email )

7 Rabin Blvd.
Rishon Lezion, 75190

HOME PAGE: http://www.colman.ac.il/English/AcademicUnits/Law/Faculty/Orit_Fishman_Afori/Pages/default.aspx

Miriam Marcowitz-Bitton (Contact Author)

Bar-Ilan University - Faculty of Law ( email )

Ramat-Gan, 52900

Emily Michiko Morris

University of Akron School of Law ( email )

150 University Ave
Akron, OH 44325
United States
330-972-6468 (Phone)

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