From Business as Usual to Health for the Future: Challenging the Intellectual Property Regime to Address COVID-19 and Future Pandemics

Abstract

A global respiratory pandemic, COVID-19, has been met by an international legal and policy regime that instantiates closed science, intellectual property [IP] monopolies, and privatized control over the testing, supply, price, and distribution of life-saving health technologies. As a result, we have had avoidable delays in biopharmaceutical preparedness, COVID-19 medical technologies that are not optimized for use in resource poor settings, inconclusive and non-comparative clinical evidence, artificially restricted supplies, needlessly high prices, and grotesquely inequitable distribution. IP right holders have preferentially and disproportionately supplied richer countries paying high prices at the same time that those countries have stockpiled excessive quantities of COVID-19 health technologies resulting in what is now known as vaccine/therapeutic/diagnostic apartheid.

Despite the remarkable effectiveness of the currently available vaccines, almost one-third of the world remains totally unvaccinated, allowing the virus to run rampant in many low- and middle-income countries (LMICs), and increasing the likelihood that newer, post-Omicron variants will emerge. The same is true of therapeutics. While many are being developed for in-patient and more recently out-patient use, they remain elusive for people in LMICs. Moreover, both polymerase chain reaction (PCR) lab tests and antigen rapid diagnostic tests have been 80-100 times more available in high-income countries than low-income countries. In light of these realities, it is increasingly important that countries work together to overcome health inequality in the short- and long-term.

In the following pages, this article seeks to explain the legal, political and commercial obstacles that bar low- and middle-income countries from getting access to the pharmaceutical products needed to protect their populations during a pandemic. It begins by providing summary of the reasons that access to medicines is fraught, even in ordinary times. It then describes how these dynamics have played out in the context of COVID-19, analyzing the successes and shortcomings of four levels of public and private action aimed at increasing access to COVID-19 products during the pandemic. It concludes by introducing some possible ways forward, all in nascent stages, that would enable us to face the next pandemic more effectively and equitably. Much has changed over the past two and a half years as country representatives, regional organizations and institutions, civil society, and academics have attempted to tackle the difficult problem of addressing COVID-19 health inequality. As the following sections show, despite the many changes made to the global legal landscape, much more must be done to establish a more resilient and equitable response to this pandemic and those that will inevitably emerge in the future.

Keywords: IP, COVID-19, vaccine, pandemic, monopoly, TRIPS, WTO, LMIC